SC2117

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM. NO. 21 OF 2021

BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND
NATIONAL EXECUTIVE COUNCIL
Second Appellant

AND
RT. HON. PAIAS WINGTI in his capacity as Chairman of the WESTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
First Respondent

AND
PROVINCIAL EXECUTIVE COUNCIL OF THE WESTERN HIGHLANDS PROVINCE
Second Respondent

AND
JOSEPH NENG
Third Respondent

AND
ELVIS MARK BALG
Fourth Respondent

Waigani: Salika CJ, Manuhu J & Makail J
2021: 7th & 11th June

SUPREME COURT APPEALS – Appeal from judicial review proceeding – Judicial review upheld – Certiorari and declaration granted – National Court Rules – Order 16 

JUDICIAL REVIEW – Appointment of Provincial Administrator – Procedure for appointment considered – Failure to comply with procedure – Requirement for submission by Provincial Executive Council to National Executive Council – No submission by Provincial Executive Council to National Executive Council – Decision to appoint Provincial Administrator unlawful – Organic Law on Provincial Government and Local-level Governments – Section 73(2) – Public Service (Management) Act, 1995 – Section 60 – Public Service (Management) (Amendment) Act, 2020 – Sections 12 &  60 

PRACTICE & PROCEDURE – Objection to competency –Valid engagement of jurisdiction of Court – Lack of authority or instructions from National Executive Council to institute appeal – Appeal incompetent – Appeal dismissed

Cases Cited:

The State & NEC v. Hon Paias Wingti & Ors (2021) SC2100
Mathias Goma & 703 Ors v. Protect Security & Communication Limited (2013) SC1300
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

Counsel:

Mr. K. Kipongi, for Appellants
Mr. P. Mawa, for First and Third Respondents
Mr.M. Tamutai, for Second Respondent 
Mr. R. Obora, for Fourth Respondent 

JUDGMENT
11thJune, 2021

1.	BY THE COURT: We heard and reserved on the following:
	(a)	Substantive appeal filed 12th April 2021, and

(b)	First and Third Respondents’ Objection to Competency filed 28th May 2021.

Brief Facts

2.	The main facts upon which this appeal rises or fall are these: the third respondent was the Provincial Administrator (“PA”) of Western Highlands Province until his contract of employment expired on 10th December 2019.

3.	The position was publicly advertised.  Applications were received.  The Department of Personnel Management (“DPM”) short listed five applicants and submitted their names to the Public Services Commission (“PSC”).

4.	The third respondent did not apply for the position of PA because he had reached the retirement age of 60 years.  

5.	Meanwhile Section 56 of the Public Service (Management) Act, 1995(“PSM Act, 1995”) was amended by Section 12 of the Public Service (Management) (Amendment) Act, 2020 (“The amended PSM Act, 2020”).  The amendment was certified on 29th April 2020 and came into effect on 18th May 2020 by National Gazette No. G27356 of 15th May 2020. The amendment increased the compulsory retirement age to 65 years.

6.	On 31st July 2020 the PSC submitted a list of five candidates to the second respondent (“PEC”).  One of the candidates was the fourth respondent.

7.	On 8th September 2020, the first respondent wrote to the Secretary of DPM and requested that the position of PA be re-advertised.  This was to give the third respondent the opportunity to apply for the position since the compulsory retirement age was increased to 65 years.

8.	The Secretary of DPM did not respond to the letter of the first respondent.  Four months later, on 22nd December 2020, by publication in the National Gazette No. G903, the NEC appointed the fourth respondent as PA.

9.	On 24th December 2020, the first, second and third respondents filed an application for judicial review of the decision of the NEC to appoint the fourth respondent as PA under Order 16 of the National Court Rules.

10.	After a trial, on 29th March 2021, the National Court upheld the application for judicial review and declared that the appointment by the NEC as published in National Gazette No G903 on 22nd December 2020 of the fourth respondent as PA is unlawful and granted an order in the nature of certiorari quashing the said decision.

11.	The National Court also ordered DPM and PSC to redo the appointment process for the PA with the inclusion of the third respondent and giving him the first preference for the NEC to decide.

12.	On 12th April 2021 the appellants filed this appeal and on 15th April 2021, obtained an order to stay the decision and orders of the National Court of 29th March 2021.  An application to have the order for stay discharged was made before the Full Court and was unsuccessful: The State & NEC v. Hon Paias Wingti & Ors (2021) SC2100.

Objection to Competency

13.	But first, this appeal can be decided on the question of authority or instructions to institute it.  It is a threshold issue because it raises the question of whether the Court’s jurisdiction had been validly engaged to determine this appeal.  

14.	The first, second and third respondents referred to a letter from the Prime Minister to the Minister for Justice dated 4th May 2021 and pointed out that the letter expressly instructed the latter to withdraw the appeal.  

15.	Based on this letter, they contended that the appeal was instituted either contrary to or without the authority or instructions of the NEC, that the NEC was the decision-making authority, and whose decision was reviewed by the National Court in the judicial review proceeding and formed the essence of the decision under appealed should be the Authority authorising or instructing the Minister for Justice to institute the appeal.  

16.	Thus, they submitted that while they acknowledged that the Prime Minister is the Chairman of the NEC and separate from the NEC, it is sufficient to hold that the appeal was instituted contrary to the authority or instructions of the NEC.  Otherwise, the absence of an expressed authority or instructions from the NEC constitutes a valid ground to render the appeal incompetent and the appeal should be dismissed.

17.	Counsel for the appellants urged us to accept that the absence of an expressed authority or instructions from the NEC to institute the appeal is overcome by the Minister for Justice having an implied or broadly speaking, an ostensible authority from the NEC to institute the appeal and the appeal is competent.  

18.	We are not persuaded by the appellants’ submission and uphold the second leg of the objectors’ submissions. This is not a case where the institution of the appeal was contrary to the Prime Minister’s advice or instructions but the lack of authority or instructions from the NEC to institute this appeal.  

19.	We consider that there must be clear and unequivocal authority or instructions from the NEC to institute the appeal because it was the decision of the NEC that was the subject of the judicial review proceeding and now forming the essence of the decision of the National Court under appeal. In other words, the NEC was the primary defendant in the National Court proceeding and likewise, the primary appellant in this appeal.

20.	Thus, the Court’s jurisdiction may be validly engaged if there is clear and unequivocal authority or instructions from the NEC authorising the institution of this appeal. Here, we note that there is no evidence from the Minister for Justice that he had instructions from the NEC to institute this appeal.

21.	Where such authority or instructions is lacking, it supports the inference that the NEC had not authorised or given instructions to the Minister for Justice to institute the appeal and the Court’s jurisdiction had not been validly engaged.  The appeal is incompetent and will be dismissed for this reason alone.

Breach of Procedure of Appointment

22.	If the appeal is considered on its merits, the next threshold question is whether or not the appellants complied with the procedure for appointment of a PA.  The trial judge referred to Section 73(2) of the Organic Law on Provincial Governments and Local-level Governments (“Organic Law”) which states:

	“(2)	The National Executive Council -	

(a)	after considering a list comprising the names of three persons submitted by the Provincial Executive Council concerned; and

(b)	after consultation with the Public Services Commission, 

shall by notice in the National Gazette, appoint from the list submitted under Paragraph (a), the Provincial Administrator.”

23.	The above provision conferred power on the NEC to appoint a PA after considering a list of three names of persons submitted by the PEC concerned and after consultation with the PSC.

24.	As to the procedure for appointment of a PA, at pages 10 to 16 of the judgment, the trial judge outlined the procedure prior to the amendment in 2020 under Section 60 of the PSM Act 1995.  It included the following matters to be attended to by the DPM:

•	declare a vacancy in the office of the PA exists or about to exist; and

•	obtain from the Central Agency Coordination Committee (“CACC”) the minimum requisites for that office; and

•	notify the PSC and the PEC concerned of the vacancy; and

•	advertise for the applications for the office in a newspaper and in such manner as it considers appropriate; and

•	after consideration, an assessment of the applicants and consultation with the CACC, the Departmental Head of DPM shall compile a list of not less than five candidates who have at least the minimum requisites for the office and submit to the PSC for its consideration and the list and applications received in response to the advertisement; and

•	assessment of an applicant shall be based on the minimum requisites of the position and where available, any appraisal performance and disciplinary records; and

•	the PSC shall consider the list submitted and all applications received in response to the advertisements and compile a list of up to three candidates in order of preference and submit as a recommendation to the PEC concerned; and

•	the PEC shall, from the list, submit to the NEC a list in order of preference for appointment as PA and the NEC shall make the appointment from the list; and

•	where the NEC does not consider any of the persons on the list submitted to it suitable for appointment, it shall advise the PSC and the DPM to re-advertise and go through the assessment and selection process again. 
25.	As to the process of appointment under Section 60 of the amended PSM Act 2020, the trial judge noted that the same prescribed procedure under Section 60 of the PSM Act 1995 has been adopted.  The only difference is that rather than inserting a further provision in Section 60 to exclude the process of re-advertisement, the requirement to re-advertise the position for PA was excluded.  

26.	This is where the controversy between the parties started.  From the facts outlined at [2] to [8] above, there is no dispute that the process was followed by the appellants including the DPM and the PSC right up to the point where the PEC was requested to consider the list of three candidates submitted by the PSC.  Having considered it, the first and second respondents requested that given that the age limit of compulsory retirement has increased to 65 years the position be re-advertised to allow for the third respondent to also apply on the ground that he was the immediate-past PA.

27.	They submitted that the trial judge was correct to hold that there was no legal constraint on the power conferred on the PEC under Section 60 of the amended PSM Act 2020 to request a re-advertisement of the position if the PEC was not satisfied with the three candidates submitted to it by the PSC.  

28.	The appellants supported by the fourth respondent maintained that the law under Section 60 on re-advertisement had changed and there is no longer an obligation on either of them, the DPM or the PSC to re-advertise the position if the PEC is not satisfied with the list of candidates submitted to it by the PSC.

29.	Consequently, pursuant to the Public Service Management Regulation which prescribes a time-limitation of fourteen days on the PEC to respond to the list of candidates submitted to it by the PSC, that no response was received from the PEC within fourteen days, the list was submitted to the NEC and the NEC as the highest authority proceeded to appoint the fourth respondent.  

30.	However, we consider that this was not a case where the PEC failed to respond.  In fact, it did by way of a letter under the hand of the first respondent dated 8th September 2020.  It is noted that the letter is quite comprehensive and provided reasons for the request for re-advertisement. One of them being, as a stakeholder, the PEC was not informed or consulted on the increase in the compulsory retirement age to 65 years before it was passed by the Parliament.

31.	In our view, this was a genuine reason because the PEC was placed in an untenable position and was unable to approve the list of candidates before submitting it to the NEC for an appointment to be made.  Neither should the PEC’s request for re-advertisement be viewed as act of defiance, or to frustrate, or delay the appointment of a PA nor to undermine the NEC as the highest authority in the appointment process.

32.	On the other hand, the request to re-advertise the position was consistent with Section 255 of the Constitution which calls for consultation and that consultation must be meaningful and allow for a genuine interchange and consideration of views, between persons or entities.  The requirement for consultation is part and partial of the entire process of selection and appointment of a PA and must be observed by all parties.

33.	We stress that, the need for consultation of the appointment of the PA of a province must be meaningful and genuine because whoever is appointed will be the head of the administration of the Provincial Government and will be responsible for heading and running it.  

34.	It is for this reason that we do not consider that the process of consultation should be rushed or constrained by a time-limitation, be it fourteen days or more.  There must be allowance for sufficient time for meaningful and genuine exchange of information between the parties so that a list of three suitable candidates is presented to the NEC to make the appointment.  

35.	In our view, the consultation between the appellants, the DPM, the PSC and the PEC fell short of what would be described as a meaningful and genuine consultation within the meaning of Section 255 of the Constitution. The failure to have a meaningful and genuine consultation resulted in there being no recommendation submitted by the PEC to the NEC to appoint one out of the three short-listed candidates as the PA.  This is where the appellants, the DPM and the PSC fell into error.

36.	Consequently, the trial judge was correct to conclude at page 22 of the judgment that:

“The request of the Provincial Executive Council for readvertisement of the position was not acceded to.  It was ignored.  An appointment was made without the National Executive Council having before it a list of thee names submitted to it by the Provincial Executive Council.  An appointment was made, inevitably, from outside the required list.  These are mandatory requirements of the Organic Law, being preconditions to a valid appointment, which were not waived by the Provincial Executive Council, and which were not met by the National Executive Council.  The appointment of Mr Balg was therefore unlawful”.

37.	Another significant error made by the appellants in the appointment process is the publication of the Gazettal Notice which read in part that “THE NATIONAL EXECUTIVE COUNCIL………..on the recommendation from the Western Highlands Provincial Executive Council………..” appoint the fourth respondent as PA.  This statement is quite deceptive. There is simply no recommendation from the PEC of the Western Highlands Province to the NEC.  

38.	At page 23 of the judgment, the trial judge quite correctly described it as “factually incorrect” and “amount to a false statement” or “a serious misrepresentation of facts” and concluded that it amounted to an “error of law on the face of the official record of the National Executive Council”.

39.	All in all, we find no error in the trial judge’s consideration and finding of a breach in the process of appointment of the fourth respondent as PA.

Other Grounds - Referral of Questions to Supreme Courtfor interpretation and Consequential orders

40.	The other grounds of appeal attacked the trial judge’s comments in relation to a possible conflict between Section 73 of the Organic Law, Section 60 of the PSM Act 1995 and Section 60 of the amended PSM Act 2020, that is, the procedure for appointment of PA where there is no requirement to re-advertise the position of PA in a case where the PEC is not satisfied with the list of candidate submitted to it by the PSC.  Further, they alleged that the trial judge lacked jurisdiction to answer the questions and failed to refer them to the Supreme Court for interpretation.  The other is in relation to the consequential orders made by the trial judge to facilitate and have the election and the appointment process re-done.  

41.	However, they will be dismissed because they are secondary to the threshold question of whether or not the appellants had complied with the procedure for appointment of a PA.  In any case, we are not satisfied the grounds which attacked the observations made by the trial judge in relation to a possible constitutional conflict between the Organic Law and the PSM Acts do not form part of the ratio decidendi of the judgment.  They were observations made by the trial judge in passing or obiter dicta: see Mathias Goma & 703 Ors v. Protect Security & Communication Limited (2013) SC1300.

42.	Similarly, the grounds which attacked the consequential orders made by the trial judge have no merit because the orders were made to facilitate the appointment process, this time to include the third respondent for consideration by the NEC, needless to say that, ultimately, it is the NEC who will make the final decision as to who gets the approval to be the PA.

Conclusion

43.	The appellate power of the Court to allow an appeal will be exercised in favour of the appellants where the National Court acted on a wrong principle or allowed extraneous and irrelevant matters to guide or affect it, mistook the facts or failed to take into account some material consideration.  Even if there is no identifiable error, the appellate Court can infer error if the resulting judgment is unreasonable or plainly unjust: see Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.

44.	Having regard to these principles, we consider that the appellants have failed to establish that there has been an identifiable error in the decision of the National Court and even if there was none, overall we are not satisfied that the decision is unreasonable or plainly unjust.  

45.	The appeal will be dismissed, the decision and orders of the National Court given on 29th March 2021 will be affirmed and the order for stay of 15th April 2021 will be discharged forthwith with costs to the first, second and third respondents, to be taxed, if not agreed.

46.	The orders are:

1.	The appeal is dismissed.

2.	The decision and orders of the National Court given on 29th March 2021 are affirmed. 

3.	The order for stay of 15th April 2021 is discharged forthwith.

4.	The appellants shall pay the costs of the appeal, to be taxed, if not agreed.
________________________________________________________________
Solicitor General:		Lawyers for Appellants
Mawa Lawyers: 		Lawyers for First and Third Respondents
Tamutai Lawyers:		Lawyers for Second Respondent
Raymond Obora Lawyers: Lawyers for Fourth Respondent