SC2179

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 10 OF 2021

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
DAVID MANNING -THE COMMISSIONER OF POLICE
Second Appellant

AND:
HON. BRYAN KRAMER -MINISTER FOR POLICE
Third Appellant

AND:
HON. SOROI EOI - MINISTER FOR PUBLIC SERVICES
Fourth Appellant

AND:
THE PUBLIC SERVICE COMMISSION
Fifth Appellant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Appellant

AND:
SYLVESTER KALAUT
First Respondent

AND:
FRED YAKASA
Second Respondent

Waigani: Hartshorn J, Makail J, Kariko J
2021: 29th October, 23rd December

APPEAL – appointment of Commissioner of Police and Secretary for Department of Police – appointee found qualified for appointment as Commissioner of Police but not Secretary for Department of Police – whether failure to qualify as Secretary for Department of Police rendered appointment unlawful 
APPEAL – natural justice – duty of court to give reasons for decision – no good reason given for declaring appointment as Commissioner of Police unlawful
APPEAL – whether position of Secretary for Department of Police existed in law – legal framework for appointment of Commissioner of Police
PRACTICE & PROCEDURE – obiter dicta of superior court –   not binding on lower court – highly persuasive if deliberate statement of law – proper reasons for decision to be given if obiter not followed
    
Cases Cited:

SC Ref No. 1 of 1982, Re Bouraga [1982] PNGLR 178
Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581 
Mathias Goma v Protect Security & Communication Ltd (2013) SC1300 
Micah v. Lua (2015) SC1445
Rodney Mari v Apeo Sioni, Philip Kereme & Ors (2018) N7607

Legislation:

Constitution 
Police Act 1998
Police Force (Interim Arrangements) Act 1973
Public Services (Interim Arrangements) Act 1973
Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003

Counsel:

Mr. T. Mileng, for the First and Third to Sixth Appellants
Mr. D. Wood and Mr. C. Joseph, for the Second Appellant
Mr. D. Dotoana, for the Respondents 

23rd December, 2021

1. HARTSHORN J: This is a decision on an appeal of a National Court decision which, amongst others declared the appointment of the second appellant, Mr. David Manning as Commissioner of Police, unlawful (Orders Appealed). 

Background

2. On 10th December 2019 the Acting Governor-General appointed Mr. Manning as Commissioner of Police and Secretary for the Department of Police for a period of four years. 

3. The two respondents, Messrs, Sylvester Kalaut and Fred Yakasa were aggrieved by the appointment of Mr. Manning. They were granted leave and applied for judicial review of the decision of the National Executive Council to advise the Governor-General to appoint Mr. Manning as Commissioner of Police and Secretary for the Department of Police.  

4. The National Court made the Orders Appealed. In essence, the primary judge found for the respondents on the basis that Mr. Manning was not qualified for the position of Secretary for the Department of Police as he does not hold a tertiary qualification.  

5. As the Acting Governor General made one decision appointing Mr. Manning to the two positions of Commissioner and of Secretary, the primary judge stated that it was impractical and undesirable to declare that only the appointment as Secretary was affected by error of law and not the appointment as Commissioner. 

Ground of Appeal 14

6. The appeal grounds are not interdependent and do not require a consideration in any order. I consider ground of appeal 14 first.  If this ground is found to be successful it will determine the appeal.

7.  Ground 14 is in essence that the primary judge fell into error for stated reasons in finding that it would be impractical and undesirable to declare that only the second appellant’s appointment as Secretary for the Department of Police was affected by error of law and that the quashing of the second appellant’s appointment of Commissioner of Police was a logical consequence, after having found that they were two separate positions. Three of the stated reasons are in summary that the primary judge failed to provide reasons or sufficient reasons for his finding.

8.  The respondents submit that the primary judge did not fall into error in making the finding referred to in ground 14 as amongst others, it is correct that the illegality which attended the appointment as Secretary for the Department of Police permeated the decision made on the second appellant’s appointment to the two positions, thus rendering a decision that only the appointment as Secretary for the Department of Police was affected, to be impractical and undesirable.  This was explained by the primary judge and that the primary judge considered all relevant considerations. The respondents also submit that an incorrect procedure in the recommendation of the second appellant as Commissioner of Police was used by the fifth appellant. Further, the respondents submit that although the primary judge did acknowledge that the second appellant was well qualified and possessed skills, training and experience to occupy the position of Commissioner of Police, as there are no qualification requirements for the position of Commissioner of Police, there was no legal basis in law for the primary judge to make such an assertion.  In regard to this last point, I note that the respondents have not given a notice of contention pursuant to Order 7 Rule 29 Supreme Court Rules, or at all.

Consideration

9.  The primary judge made the following statements in his written reasons for judgment concerning whether the second appellant was appointed to two positions, Commissioner of Police and Secretary of the Department of Police, whether the procedures were followed in the second appellant’s appointment as Commissioner of Police and whether the second appellant was qualified to be Commissioner of Police:

“[64]  This is clearly the case. The advertisements for the positions made it clear that applications were invited to fill two separate positions, ……  Mr. Manning  applied for those two positions and he was appointed to those two positions.”

 At [83]:  “The procedures in s. 193(2) (Constitution)  were followed in so far as Mr. Manning’s appointment as Commissioner of Police is concerned, but the necessary procedures regarding his appointment as Secretary of the Department of Police were not followed.”

“[98]  Mr. Manning  is very qualified to be Commissioner in light of his long period of distinguished service in the Police Force in senior positions.”

10.  The primary judge further stated at [123]:

“There was one decision made by the Governor-General for appointment of David Manning as Commissioner of Police and Secretary for the Department of Police. It would be impractical and undesirable to declare that only his appointment as Secretary for the Department of Police was affected by error of law. The illegality attending his appointment as Secretary for the Department of Police permeated the decision made on his appointment to the two positions.”

11.  The primary judge had earlier found that there were two separate positions. On this basis, in respect of one decision which made an appointment to two separate positions the primary judge made a finding that illegality concerning the appointment to one separate position had permeated so as to affect the appointment to the second separate position with illegality. This is notwithstanding that the primary judge had earlier stated that in regard to the second position, that of Commissioner of Police, that the procedures in s. 193(2) Constitution had been followed in regard to the second appellant’s appointment as Commissioner of Police.

12.  This raises the question of how an appointment which followed procedures in s.193(2) Constitution was rendered illegal because of a purported illegal appointment to another separate position. Without more, including the reasons of the primary judge for making this finding, I am of the respectful view that the primary judge fell into error.

13.  Further, the primary judge did not give reasons why it would be impractical and undesirable to declare that only the appointment as Secretary for the Department of Police was affected by error of law and how the illegality attending the appointment as Secretary for the Department of Police permeated the separate appointment as Commissioner for Police.

14. The appellants referred to Micah v. Lua (2015) SC1445 (Cannings, Makail, Higgins JJ) for the proposition that there is a duty to give reasons. The following passage at [21] to [22] was cited and is self explanatory:

“21.	The Appellant’s insistence on being given the reasons may appear to be nitpicking but in Ombudsman Commission v. Peter Yama (supra), the Supreme Court made it abundantly clear it is one of the “fundamentals of good administration” that the Ombudsman Commission give “good and proper reasons for its decision to refer” and that such reasons must be “meaningful and sufficient reasons”.

22.	It cannot be emphasised enough that the duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions: Joe Ponau v. Teaching Service Commission Disciplinary Committee (2006) N3059.  If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (supra) and Mision Asiki v. Manasupe Zurenuoc (2005) SC797.  The National Court has applied the same principles, some of the cases were Niggints v. Tokam [1993] PNGLR 66; Yawip v. Commissioner of Police [1995] PNGLR 93; Wena v. Tokam (1997) N1570;  Graham Kevi v. Teaching Service Commission Disciplinary Committee [1997] PNGLR 659 and Michael Anis Winmarang v. David Ericho and The State (2006) N3040.”

15. On the basis of the content of this passage and that the primary judge did not give good or sufficient reasons for the declaration that the appointment of the second appellant as the Commissioner of Police was unlawful, I am of the respectful view that the primary judge fell into error.

16.  Given the above it is not necessary to consider the other grounds of appeal and submissions of counsel.

Orders

17. It is ordered that:

a)	This appeal is upheld.

b)	The orders made by Cannings J on 22nd January 2021 in National Court proceeding  OS(JR) No. 2 of 2020; Sylvester Kalaut and Fred Yakasa v. The State  and Others are quashed.

c)	 The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment.

d)	 The respondents shall pay the costs of the appellants of and incidental to this appeal and of the said National Court proceeding on a party party basis to be taxed if not otherwise agreed.

18. MAKAIL J: I thank my brothers Justice Hartshorn and Justice Kariko for their drafts.  I have read them and agree with the reasons each has given to uphold the appeal and quash the decision of the National Court to quash the appointment of Mr David Manning as Commissioner of Police.  
19.	On my part, I would like to reinforce the notion that there is only an office of Commissioner of Police as established under Section 198 of the Constitution.  Section 198 states:

	“198.	Commissioner of Police.

There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament”. (Underlining is mine).

20.	And it will be observed that there is no mention of the office of Secretary of the Department of Police in Section 198.  The absence of an office of Secretary of the Department of Police is pivotal to this appeal, an issue which I will explain in detail shortly.  

21.	The reference to an Act of Parliament in Section 198 is deliberate and refers to the Police Act 1998.  Section 9 is pertinent and states:

“9.	Appointment of Commissioner.

(1)	The office of the Commissioner of Police established under the former Act is continued under this Act.

(2)	The Commissioner is appointed in accordance with Section 193 (Appointments to certain offices) of the Constitution.

(3)	The Commissioner shall be appointed for a term of not less than four years and the other terms and conditions of appointment of the Commissioner are as determined by the Head of State, acting on advice.

(4)	The terms of appointment of the Commissioner may be embodied in a contract between the State and the Commissioner.

(5)	A contract may provide for the removal from office of the Commissioner by the Head of State acting on advice on any one or more of the following grounds and on no other grounds:—

(a)	conviction of any offence involving dishonesty or for which a term of imprisonment may be imposed;
(b)	failure to comply with any essential term or condition of the appointment;

(c)	negligence or dereliction of duty;

(d)	misconduct;

(e)	incapacity due to infirmity of mind or body;

(f)	failure adequately to perform the duties required of a person holding the rank of Commissioner;

(g)	the resignation or retirement of the Commissioner;

(h)	in the interest of the State.”

22.	And it will be further observed that Section 9(1) provides for the establishment of the office of Commissioner of Police and Section 9(2) provides for the appointment of the Commissioner of Police who shall be appointed in accordance with Section 193 (Appointment to certain offices) of the Constitution.

23.	Again, it will be observed that there is no mention of the office of Secretary of the Department of Police in Section 9 or elsewhere in the Act and this reinforces the notion that there is only one office and that is the office of Commissioner of Police.  

24.	I now return to the point I made earlier about the absence of an office of Secretary of Department of Police.  By comparison, other State Departments have an office of Departmental Head/ Secretary (used interchangeably).  Some examples are Section 2 (Establishment of Office of Attorney-General) of the Attorney-General Act 1989 which provides for the establishment of Office of Attorney-General; Section 22(1)(a) (Departmental Heads) of the Public Services (Management) Act 1995 which provides for the establishment of the Office of Departmental Head of Prime Minister and National Executive Council in accordance with Section 17 of the Prime Minister Act 2002 and Section 22(1)(b) provides for Office of Departmental Head of the Department of Personnel Management.

25.	Then Section 22(1)(c) provides for such other offices of Departmental Head as are created by the Head of State, acting on advice, by notice in the National Gazette.  Much more-closer to a disciplinary force, Section 5 (Department of Defence) of the Defence Act Ch 74 provides for a Department of Defence and an office of Secretary for Defence which shall be the office of Departmental Head of the Department.

26.	What separates the Police Force from the Defence Force in terms of its head is that Section 6(1) of the Defence Act, Ch 74 provides for the office of the Commander of Defence Force and Section 6(2) provides for the Office of the Commander which shall also be known as the Office of the Chief of Defence Force and the Commander shall be called the Chief of Defence Force.

27.	In real time and to give effect to Sections 5 and 6, two persons are appointed; one as the Secretary of Defence and the other as Commander of Defence Force.  The former holds the office of Secretary of Defence and the latter holds the office of the Commander of Defence Force or Office of the Chief of Defence Force.

28.	The Police Force does not have identical or similar provisions of the Defence Act, Ch 74 in the Police Act 1998 for the purpose of establishing a Department of Police and an office of Secretary for Police which shall be the office of Departmental Head of the Department.

29.	The notion of Secretary for Police has a fair bit of history and can be traced back to a notice published in the National Gazette No. G15 dated 13th February 1976 (Gazettal Notice).  

30.	By this gazettal notice, the Governor General acting with, and in accordance with the advice of the National Executive Council after consultation with the Public Services Commission issued two directives:

(a)	revoke all previous Determinations of Functions of Departments (other than the Department of the Public Services Commission); and

(b)	determine that each Department specified in Column 1 of a Schedule shall have such functions as specified in Column 3 of that Schedule and set out opposite the name of that Department, to come into effect on and from the date of publication of this instrument in the National Gazette.

31.	It will be observed that the gazettal notice lists thirteen (13) Departments and assigned specific functions as set out in Column 3 of each Schedule to each Department, starting with Department of the Prime Minister and ending with Department of Transport, Works and Supply.  

32.	For the present purposes, Column 1 of Schedule 10 lists the Department of Police.  Its functions are set out in Column 3 and are: 

1.	Development of Police policy and its implementation in planning Police Force development and the use of the Police Force.

2.	Provide investigatory, research, executive, administrative, financial management and other services to the Police Force in the discharge if its functions under Constitutional Laws and Acts of the Department.

3.	Provide services to standing or ad hic organisations relating to the functions of the Department.

33.	Over the years, the other Departments and their functions migrated with them when separate Acts of Parliament were passed.  The Department of Defence which I referred to earlier was one of them.  Pursuant to Section 5 of the Defence Act, Ch 74 there is now a Department of Defence and an office of Secretary of Defence.  Only the Department of Police remained until it became a controversial issue in this case.

34.	It became controversial for two main reasons: first, one person is appointed and holds the office of Commissioner of Police and office of Secretary for Police.  Consistent with this arrangement, when there was a vacancy, a notice was published in the National Gazette No. G16 of 1st August 2019.  The notice stated that there was a vacancy under the Police Act 1998 for position of Commissioner of Police and Secretary for the Department of Police. Note the use of the word “position” in the notice.  It reinforces that argument that there is one position and that is the Commissioner of Police.

35.	Secondly, when Mr Manning was appointed and later found to have not met the requirement for tertiary qualification, a degree from a recognized university to hold the office of Secretary for Police, he was removed from both offices.

36.	The trial judge accepted that there were two positions; one for the Commissioner of Police and the other for Secretary for Police and focused on the latter where he applied the criteria for appointment of a Departmental Head under Section 193(1) and (1A) of the Constitution and Sections 25A and 31A of the Public Services (Management) Act including Section 1 of the Public Services (Management) (Minimum Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation, 2003.  This was a merit-based appointment process and one of the criteria was, a candidate must possess a minimum tertiary qualification, a degree from a recognized university. 

37.	With respect this merit-based appointment process misses the whole point.  As I mentioned, the Department of Police remained as it was since the gazettal notice of 13th February 1975 and there was no time at any point in the life of this gazettal notice that the Department of Police was elevated to a separate Department and an office of the Secretary of Department of Police has been established in the Police Act 1998.  In other words, while there is a Department of Police as per the gazettal notice, the respondents have not pointed out the constitutional and statutory basis for their assertion that there exists an office of Secretary for Police and Mr Manning was not qualified to hold the office of Secretary for Police.

38.	The notion that there exists a Departmental Head or Secretary of the Department of Police has no constitutional and statutory foundation in law (Constitution and Police Act 1998).  It would follow that the minimum tertiary qualification of a degree from a recognized university which the trial judge relied on to disqualify Mr Manning was unnecessary and irrelevant.  This is where the trial judge erred.

39.	On the other hand, the procedure for appointment of Commissioner of Police is not in doubt and supported the appointment of Mr Manning.  Section 193 of the Constitution states, this Section (Section 193) applies to and in respect of the following offices and positions.  One of them is the office of Commissioner of Police: see Section 193(1)(e).

40.	In terms of process of appointment of the Commissioner of Police, Section 193(2) states:

“(2)	All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.”

41.	The process of appointment under Section 193(2) is not expressed to include the requirement that a candidate for Commissioner of Police must possess a minimum tertiary qualification, a degree from a recognized university.   The trial judge erred in law when he overlooked Section 193(2) and held to the contrary. 

42.	For these reasons, I would uphold the appeal, quash the decision of the National Court of 22nd January 2021 and confirm the appointment of Mr Manning as Commissioner of Police with costs.

43. KARIKO J: I have had the benefit of reading the draft judgment of Hartshorn J and I respectfully agree with the reasoning and conclusions therein. However, I wish to discuss what I consider to be the underlying issue in this case and that is whether the position of the Secretary for the Department of Police (Secretary for Police) existed in law. 

BACKGROUND

44. In a detailed advertisement in National Gazette No PS. G16 dated 1st August 2019, the positions of Commissioner of Police and the Secretary for Police were published as being vacant and applications were called for to fill the positions. 

45. An abridged version of the advertisement was published in the daily newspapers the same day. 

46. Eighteen applicants answered the advertisement, including the second appellant (Mr Manning), the first respondent (Mr Kalaut) and the second respondent (Mr Yakasa).  

47. The Department of Personal Management (DPM) profiled and summarised the applications before referring them to the Public Services Commission (PSC) on 10th September 2019. 

48. The PSC shortlisted three applicants for the position of Commissioner of Police and through the Minister for Public Service, its recommendations were submitted to the National Executive Council (NEC) on 7th October. 

49. The next day, the Minister sought the views of the Permanent Parliamentary Committee on Appointments (PPCA) regarding the recommended candidates for the position of Commissioner of Police. 

50. The PPCA approved the shortlist, and a submission was consequently made to the NEC for the appointment of the Commissioner of Police from the shortlist, in the following order of preference:

(1)	Mr Kalaut;
(2)	Mr Yakasa; and
(3)	Mr Manning.  

51. On 6th December 2019, the NEC approved to recommend to the Head of State, the appointment of Mr Manning as the Commissioner of Police and the Secretary for Police.  

52. By gazettal notice dated 10th December 2019, the Governor-General advised of the appointment of Mr Manning in accordance with the recommendation of the NEC.

53. Aggrieved by the decision, the respondents filed in the National Court for judicial review of Mr Manning’s appointment.  

54. While the primary Judge determined that the Police Commissioner of Police and the Secretary for Police are distinct and separate positions and that Mr Manning’s appointment as the Commissioner of Police was made in accordance with the law, his Honour nevertheless allowed the application for judicial review and quashed the appointments of Mr Manning as both the Commissioner of Police and the Secretary for Police. His Honour’s reasons for that decision are the focus of Hartshorn J’s judgment.

GROUNDS OF APPEAL

55. The appellants raise sixteen grounds of appeal, two of which were not pursued at the hearing. 

56. Several grounds touch on the core issue of whether the position of Secretary for Police existed under the law. Of these, the grounds that directly raise the issue are the first three, which allege that the primary Judge erred in law or mixed fact and law in:

(1)	finding that there was a separate office of Secretary for the Department of Police to the office of the Commissioner of Police.

(2)	deciding that the advertisement published in the National Gazette was for two separate positions, Commissioner of Police and Secretary for Police, when it was intended for the vacant position of Commissioner of Police only.

(3)	failing to follow and apply the view expressed by Kapi J in SC Ref No. 1 of 1982, Re Bouraga [1982] PNGLR 178, that the creation of the department of Police and the Secretary for Police is unconstitutional. 

57. It is a requirement that an appointee as a departmental head must possess tertiary qualifications pursuant to the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 and it has never been in dispute that Mr Manning does not hold such qualifications. In his judgment, the primary Judge noted the following question as one of the four issues on trial: Does the absence of tertiary qualifications affect the legality of the appointment of David Manning? 

58. The answer necessarily requires a determination as to whether the position of the Secretary for Police lawfully existed. If the answer is in the negative, then the requirement for possession of tertiary qualifications is immaterial, and consequently the appeal must be upheld. 

59. Although evidence has been produced that the position of Secretary for Police was formally abolished after this appeal was lodged, I nevertheless consider it appropriate to discuss the issue just outlined, as it relates to the application of the law, including the Constitution, at the time of the appealed decision.  

APPELLANTS’ SUBMISSIONS 

60. A key contention by the appellants in the National Court and repeated before us is that the office of the Secretary for Police does not exist in law, and for this proposition the obiter dictum of Kapi J in the Supreme Court case of SC Ref No. 1 of 1982, Re Bouraga [1982] PNGLR 178 was cited. In his judgment, Kapi J observed that as the Secretary for Police assumes functions that are expressed as functions of the Commissioner of Police under Section 198 of the Constitution, that is unconstitutional and there can be no Department of Police or Secretary of Police. 

61. The appellants acknowledged that Kapi J’s remarks are obiter and not binding on the primary Judge, but as Kapi J was then sitting in the Supreme Court and his view was a “deliberate statements of law as opposed to a casual expression of opinion”, it was of high persuasive value and ought to have been followed; Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581 per Sakora J and Mathias Goma v Protect Security & Communication Ltd (2013) SC1300 per Cannings J. 

62. The appellants also urged this Court to find that Kapi J’s reasoning correctly reflects the law, given the legal framework of the Police Force as provided under the Constitution and the Police Act 1998.

63. Further, it was submitted that while the newspaper advertisement was supposedly for the positions of the Commissioner of Police and the Secretary for Police, it was intended for one position only, that of the Commissioner of Police. 

RESPONDENTS’ SUBMISSIONS 

64. In reply, the respondents submitted that Kapi J’s observations were obiter, and the primary Judge did not err in how he considered the matter.

65. The point was stressed that two separate offices existed, that of Secretary for the Department of Police and the other being Commissioner of Police: 

•	the Secretary’s position established pursuant to s. 24 (1)(a), (b) and (c) of the Public Services (Interim Arrangements) Act 1973 and notified by Gazettal Notice No. G15 dated 15th February 1976; and  
•	the office of the Police Commissioner established pursuant to s. 198 of the Constitution.  

66. The advertisements in the National Gazette and the newspapers were referred to as lending support to this fact as they clearly invited applications for the two positions.  

67. The respondents further submitted that the Commissioner of Police performs the functions of a departmental head because he is also the Police Secretary, head of the Department of Polce. They relied on the following statement by Gavara-Nanu J in Rodney Mari v Apeo Sioni, Philip Kereme & Ors (2018) N7607 at [16]:

In my opinion, there is no doubt that the Police Commissioner is a Departmental Head, thus as a public authority, his actions can be reviewed.  This view finds support in the fact that the appointment of the Police Commissioner by the Head of State (acting in accordance with the advice of the NEC) is as the Head of the Department of Police, which is required to be gazetted as such. (Emphasis added)

BOURAGA’S CASE

68. In SC Ref No. 1 of 1982, Re Bouraga, Kapi J expressed the obiter remarks under discussion after noting that the Department of Police was established under ss. 22 and 23 of the Public Service (Interim Arrangements) Act 1973, which was published in National Gazette No. G15 dated 13th February 1976. The Gazette also listed the following as functions of the department: 

(1)	Development of police policy and its implementation in planning, police force development and the use of the police force.
(2)	Provide investigatory, research, executive, administrative, financial management and other services to the police force in the discharge of its functions under Constitutional Laws and Acts of the Department.
(3)	Provide services to standing or ad hoc organizations relating to the functions of the Department.

69. His Honour noted the creation of the Department of Police took away some of the Commissioner’s responsibilities considering that s.198 of the Constitution clearly provides that the superintendence and efficient organization of the police force is the exclusive responsibility of the Commissioner, to be discharged in accordance with the law, then the Police Force (Interim Arrangements) Act 1973. The creation of the department under the Public Service (Interim Arrangements) Act 1973 took away some of the Commissioner’s responsibilities and gave them to a separate body established by a different Act.

70. His Honour continued:

To the extent that the creation of the Department of Police is set up to take-over some functions of the Commissioner it is inconsistent with s. 198 and therefore unconstitutional. In law there can be no Department of Police and Secretary of Police. Every function that the Commissioner performs including those designated to be performed by the Secretary of Police all fall within the functions of the Commissioner of Police.
In law there is only the office of Commissioner of Police.”

(Emphasis added)

71. His Honour added that there is no power given to the Commissioner to delegate any of his functions under s. 198 of the Constitution. He reasoned:

The Commissioner may delegate all or any of his functions to the Public Services Commission under s. 18 of the Act. Where this is done, the Public Service Commission may set up a department and a head of department under its Act for those functions. The difficulty about this is that the Commissioner can revoke this delegation at will (s. 18(2)). The establishment of the department was not done under this delegation.

The delegation of the powers of the Commissioner in relation to the superintendence, efficient organization and control of the force under s. 18 is now questionable because these powers are no longer given under the Act but under s. 198 of the Constitution. Section 18 deals with powers and duties given under the Act. Under the Constitution, there is no power given to the Commissioner to delegate any of his functions under s. 198 of the Constitution.”
(Emphasis added)

CONSIDERATION

72. The primary Judge decided that the opinion of Kapi J has never been the subject of a final judicial determination, and it was raised unnecessarily. After suggesting that the State and the NEC could have overcome the controversy by abolishing the Department of Police and the position of Secretary for Police, his Honor concluded: 

95. 	However, the telling fact for the purposes of this case is that Mr Manning has in fact and law been appointed as Secretary of the Department of Police, which is a Department in the National Public Service. It is his appointment to that office, which is directly challenged; and it is argued that if he is found to have been unlawfully appointed to that office, it follows that his appointment as Commissioner of Police is also unlawful.

96.	I find that the constitutional argument based on Bouraga’s case is of no consequence.”
(Emphasis added)

73. With respect, I find that the primary Judge did not properly consider Kapi J’s views in Bouraga’s case. The obiter dictum ought to have been treated as highly persuasive and given close regard, but the primary Judge failed to do that. I accept the appellant’s submissions on this point. The obiter was a reasoned statement of law, but moreover, it was pronounced by a Judge of the Supreme Court. It is worthy to note that there was indicative support by Kidu CJ of the propositions by Kapi J. The Chief Justice remarked: 

In 1976, Government Gazette No. 15 of 13th February, 1976, p. 9, the Head of State acting on advice also established a Department of the Police and allocated its functions which are really those of the Commissioner of Police vested in him/her by s. 198 of the Constitution. I query the constitutional validity of a Public Service Department being given functions which the Constitution itself vests in the police force and the Commissioner of Police. However, as the issue I raise was not argued in this reference I do not pursue the matter any further.
(Emphasis added)

74. The fact that there has been no judicial determination of Kapi J’s dictum does not lessen its persuasive value. In Goma v Protect Security and Communication Ltd (supra), it was properly stressed that if the National Court decides not to follow the highly persuasive dicta of the Supreme Court, it should give properly considered reasons for doing so. To my mind, this guiding principle was not followed by the primary Judge and his Honour thereby erred in law.

75. The following provisions of the Constitution are relevant to this discussion:

•	s. 188 - the State Services are established, which includes the National Public Service and the Police Force. 
•	s. 199 - provides for only one Police Force, subject to the creation of special forces or bodies or conferring of police powers on no-members of the Police Force, pursuant to an Act of Parliament. 
•	s. 195 – Acts of Parliament shall make provisions in respect of the State Services in relation to their structures and organizations, employment of persons, and terms and conditions of appointment and employment.  In respect of the Police Force, that Act of Parliament is the Police Act 199	
•	s. 198 - creates the office of the Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Police Force in accordance with an Act of Parliament, that being the Police Act 1998.
•	s. 193(1)(e) & 193(2) - the Commissioner of Police is appointed by the Head of State, acting on the advice of the National Executive Council, given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee. 

76. It is also useful to note these provisions of the Police Act 1998: 

•	s. 7 – sets out the composition of the Police Force, which includes the Commissioner of Police, but not the Secretary for Police or a like position.   
•	s. 9 – provides for the appointment of the Commissioner of Police and re-states that the Commissioner is appointed in accordance with s. 193 of the Constitution. 
•	s. 17 – the Commissioner of Police may delegate all or any powers of the Commissioner under the Act. 

77. I agree with the appellants that the mentioned provisions of the Constitution and the Police Act 1998, set out and contain the entire legal framework of the Police Force and that the office of the Secretary for Police is not created or established under or within that structure. None of the functions of the Commissioner of Police prescribed by s. 198 of the Constitution have ever been delegated to any person or body including the Public Services Commission for the obvious reason that the functions cannot be delegated. It follows then that in my view, the obiter dictum of Kapi J in Bouraga’s case reflected the prevailing law during the process leading to Mr Manning’s appointment on 10th December 2019. 

78. As to the statement of Gavara-Nanu J in Rodney Mari v Apeo Sioni, Philip Kereme & Ors (supra) cited by the respondents, it is noted that his Honour did not discuss the obiter remarks of Kapi J although he mentioned the Bouraga case. In making his statement, Gavara-Nanu J appears to have had regard merely to the fact that the relevant gazettal notice of the appointment of the Commissioner of Police also referred to his appointment as the Head of the Department for Police.

79. I think it is a fair statement that the Commissioner of Police performs a role akin to a departmental head in the National Public Service, but that is not to say that a separate office of the Secretary for Police existed in law.

80. It is interesting to note that the advertisement in the National Gazette mentioned the Secretary for Police twice, in the heading and in the introductory paragraph. However, the main body of the advertisement referred only to the Commissioner of Police. 

81. The title of the position is stated as “Commissioner of Police – Ex. Level 6”. The responsibilities of the position that were listed, reflect the functions and responsibilities of the Commissioner of Police under the Constitution and the Police Act 1998. The appointment to the vacant position noted the appointment of the Commissioner of Police would be made under s. 193 of the Constitution. The advertisement also called for the Commissioner of Police to comply with certain requirements of the Public Service Regulations, but these did not include the possession of tertiary qualifications. It also referred to the Commissioner of Police being employed under contract pursuant to the Police Act 1998. 

82. Additionally, it is relevant to note that in the process leading to the NEC decision of 6th December 2019 to recommend Mr Manning’s appointment, the PSC, the Minister for Public Service and the PPCA all referred to the appointment of the Commissioner of Police. The shortlist of applicants submitted to the NEC was for the position of Commissioner of Police. It was only when the NEC decision was made that reference to the Secretary for Police re-emerged, which was naturally repeated in the gazettal notice of the appointment that followed. 

83. These facts together with the highlighted features of the advertisement lend support to the submission, which I accept, that the advertisement was properly intended for the position of Commissioner of Police only.

CONCLUSION

84. For the foregoing reasons, I uphold the appeal also because I find that the primary Judge erred as alleged in the first three grounds of appeal. I agree with the orders proposed by Hartshorn J. 
_________________________________________________________________

BY THE COURT: 

a)	This appeal is upheld.

b)	The orders made by Cannings J on 22nd January 2021 in National Court proceeding OS(JR) No. 2 of 2020; Sylvester Kalaut and Fred Yakasa v. The State and Others are quashed.

c)	 The Second Appellant, Mr. David Manning is confirmed to the position of the Office of Commissioner of Police as per his contract of employment.

d)	 The respondents shall pay the costs of the appellants of and incidental to this appeal and of the said National Court proceeding on a party to party basis to be taxed if not agreed.
__________________________________________________________________Office of the Solicitor General: Lawyers for the First and Third to Sixth Appellants
Ashurst Lawyers: Lawyers for the Second Appellant
Dotoana Lawyers: Lawyers for the Respondents