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Papua New Guinea Law Reports |
[1982] PNGLR 178 - SCR No 1 of 1982; Re Board of Inquiry appointed under Public Service (Interim Arrangements) Act 1973 Re Alleged Disciplinary Offences in Office by Mr Phillip Bouraga
[1982] PNGLR 178
SC225
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 1 OF 1982 IN THE MATTER OF A BOARD OF INQUIRY APPOINTED UNDER THE PROVISIONS OF S. 82(2) OF THE PUBLIC SERVICE (INTERIM ARRANGEMENTS) ACT 1973
AND IN THE MATTER OF CERTAIN ALLEGED DISCIPLINARY OFFENCES IN OFFICE BY MR. PHILLIP BOURAGA
Waigani
Kidu CJ Kapi Pratt JJ
26 February 1982
10 March 1982
23 March 1982
STATE SERVICES - Public Services Commission - Powers of - Disciplinary charges against Head of Department - Constitution, s. 193, Sch. 1.10(4) - Public Service (Interim Arrangements) Act 1973, (now Public Service Act), ss. 76, 83.
STATE SERVICES - Ministers - Departmental Heads - Powers and duties of - Disciplining of Departmental Heads - Constitution, ss. 148, 193, 196[xxxiii]1.
POLICE - Minister of Police - Control over Commissioner of Police and/or Secretary of Police - Constitution, s. 196[xxxiv]2.
WORDS AND PHRASES - “Subject to control of”- Words of limitation - Constitution, s. 196[xxxv]3.
The Public Services Commission does not have power to charge the Commissioner of Police and/or the Secretary for Police with disciplinary charges under s. 76 and s. 83 of the Public Service (Interim Arrangements) Act 1973 now the Public Service Act.
A Head of a Department appointed under s. 193 of the Constitution is subject to discipline by the Head of State acting on advice, i.e. the Head of a Department may only be disciplined under Sch. 1.10(4) of the Constitution.
The Minister of Police does not have the power of direction or control over the Commissioner of Police and/or the Secretary for Police such that he may lawfully issue orders requiring advice, briefings, and information.
However, (per Pratt J.) a Minister does have the right to request and to be furnished with information; (per Kidu C.J.) it is the obligation and responsibility of civil servants to furnish advice to their Ministers.
The Minister of Police does not have power to issue orders requiring advice, briefings and information under s. 196 of the Constitution unless those orders come from the National Executive Council.
(Per Kapi J.): The words “subject to control of” in s. 196(1) of the Constitution are words of limitation and imply that a power or function is given to a body and that power is limited by the body to which it is made subject.
Smith v. London Transport Executive [1951] A.C. 555 at p. 569 and p. 577.
Clark (C. & J.) v. Inland Revenue Commissioners [1973] 2 All E.R. 513 at p. 520 adopted and applied.
Discussion of powers and duties of Ministers, Heads of Departments and civil servants.
Cases Cited
Clark (C. & J.) v. Inland Revenue Commissioners [1973] 2 All E.R. 513.
Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531.
Smith v. London Transport Executive [1951] A.C. 555; 1 All E.R. 667.
Reference
This was a reference by a Board of Inquiry set up under s. 82(2) of the Public Service (Interim Arrangements) Act 1973, to investigate the truth of disciplinary charges made against the Commissioner of Police by the Public Services Commission. The reference was made under s. 18 of the Constitution and the questions referred are set out at pp. 180-181 of the reasons for judgment of Kidu C.J.
Counsel
B. Emos, to argue the affirmative case.
P. Donigi, to argue the negative case.
C. Maino-Aoae, intervening for the Principal Legal Adviser.
Cur. adv. vult.
23 March 1982
KIDU CJ: The Public Services Commission, on 7th December, 1981, charged Mr. Phillip Bouraga with the commission of offences within the meaning of s. 76 of the Public Service (Interim Arrangements) Act 1973.
These charges read:
“First Count:
The said phillip bouraga on or about 29th January 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to advise on the overall priorities for funding for the next year and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Second Count:
The said phillip bouraga on or about 4th February 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask phillip bouraga to brief him on the Highlands Law and Order situation and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Third Count:
The said phillip bouraga on or about 18th August 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to provide more detailed information on certain disciplinary charges and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Fourth Count:
The said phillip bouraga on or about 26th November 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister did request the aforesaid phillip bouraga to brief him on the killing of a member of the Police Force and allegations of a demonstration and strike by members of the Police Force and that phillip bouraga refused to do so and in so doing did commit a disciplinary offence under section 76(c) of the said Act.”
A board of inquiry was set up to investigate the truth or otherwise of these charges. After it completed hearing evidence, but before making its report to the Public Services Commission the board of inquiry referred to this Court three questions relating to the interpretation and application of certain provisions of Div. 4 of Pt. VI and Div. 4 of Pt. VII of the Constitution, and Sch. 1.10(4) of the Constitution.
The questions referred to the court are framed thus:
“1. Whereas we consider that questions have arisen involving the interpretation of ss. 192, 193, 194, 198 and Sch. 1.10(4) of the Constitution, we hereby refer the following question to the Supreme Court:
QUESTION I
Does the Public Services Commission have power to charge the Commissioner of Police and/or the Secretary for Police under the Public Service (Interim Arrangements) Act 1973 (now the Public Service Act Ch. No. 67) with the following disciplinary charges under ss. 76 and 83 of the said Act, namely:
‘First Count That the said phillip bouraga on or about the 29th day of January 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to advise on the overall priorities for funding for the next year and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Second Count And also that the said phillip bouraga on or about the 4th day of February 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister, in writing, did ask phillip bouraga to brief him on the Highlands Law and Order situation and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Third Count And also that the said phillip bouraga on or about the 18th day of August 1980 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to provide more detailed information on certain disciplinary charges and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.
Fourth Count And also that the said phillip bouraga on or about the 26th day of November 1981, did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister did request the aforesaid phillip bouraga to brief him on the killing of a member of the Police Force and allegations of a demonstration and strike by members of the Police Force and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76(c) of the said Act.’
And does the board of inquiry appointed under the provisions of the said Act have jurisdiction to inquire into the truth of those charges and to report to the Public Services Commission its opinion on it?
2. Whereas we consider that questions have arisen involving the interpretation and application of s. 148 of the Constitution we hereby refer the following question to the Supreme Court:
QUESTION II
Does the Minister of Police have the power of direction or control over the Commissioner of Police and/or Secretary for Police such that he may lawfully issue orders in the manner of those which now form the subject of Public Service disciplinary charges as set out in Question I?
3. Whereas we consider that questions have arisen involving the interpretation and application of s. 196 of the Constitution we hereby refer the following question to the Supreme Court:
QUESTION III
Does the Minister of Police acting under s. 196 of the Constitution have the power to issue orders (in the nature of those which form the subject of charges against the Commissioner of Police and/or the Secretary for Police as set out in Question I), to the Commissioner of Police and/or the Secretary for Police?
The Board of Inquiry seeks an interpretation and the application of the meaning and extent of the term subject to control in the context of s. 196(1) of the Constitution.”
The reference is dated 15th January, 1982.
When he was charged with the Public Service disciplinary offences Mr. Bouraga held the offices of Commissioner of Police and Secretary for Police. Appointments to both offices were made under s. 193 of the Constitution. They appear in Government Gazette No. G26 of 26th April, 1979.
QUESTION I
For the purposes of considering this question it is important to bear in mind that the offices of Commissioner of Police and Secretary for Police are distinct from each other. The former is the creation of s. 198 of the Constitution and the latter created, under s. 12 of the Public Service Act 1900 by the Head of State on advice of the National Executive Council. One is a creation of the Constitution and the other that of an ordinary Act of the Parliament.
Mr. Donigi, counsel for Mr. Bouraga, argues that those who are appointed under s. 193 of the Constitution cannot be subject to disciplinary charges by any other person or authority, i.e. they are subject to discipline only by their appointing authority or authorities under Sch. 1.10(4) of the Constitution.
The State Solicitor submits that as a public servant Mr. Bouraga was subject to discipline by the Public Services Commission under the Public Service Act. He says that s. 72 of that Act allows the Public Services Commission to charge Mr. Bouraga in his capacity as departmental head of the Department of Police.
COMMISSIONER OF POLICE
Neither the Public Service Act nor the Police Act contains any disciplinary provisions relating to the office of Police Commissioner. I have found no Organic Law or other Acts of Parliament which are of relevance. The only law on this is contained in Sch. 1.10(4) of the Constitution. This provision reads:
“Subject to subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended, or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.”
Subsection (5) of Sch. 1.10 reads:
“The power provided for by subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.”
Schedule 1.1(1) provides:
“The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.”
Section 193 of the Constitution, as it relates to the appointment of the Commissioner of Police, does not say directly or indirectly that Sch. 1.10(4) is inapplicable to the Commissioner of Police. No other Constitutional Law as I have stated already, applies to the question of discipline re the Commissioner of Police. In my view, therefore, the Commissioner of Police may only be disciplined by the appointing authority under Sch. 1.10(4) and (5) of the Constitution or under the Leadership Code.
The Public Services Commission has no power or authority to lay disciplinary charges against the Commissioner of Police. This view is also supported by s. 191 of the Constitution. It reads as follows:
“(1) Subject to this Constitution, the Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for
(a) the efficient management and control of the National Public Service; and
(b) all personnel matters connected with the National Public Service; and
(c) such other matters in relation to the other State Services and the services of other governmental bodies as are prescribed by Constitutional Laws or Acts of the Parliament.
(2) It is a special function of the Commission to keep under continuous review the State Services (other than the defence force), the provincial services and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive and any authority responsible for any of those services on organizational matters and the co-ordination of effort, and in particular on conditions of employment, with a special view to avoiding wasteful duplication of effort and competition.
(3) Nothing in subsection (2) gives the Commission any power of direction or control.”
There is no Act made under s. 191(1)(c) allowing the Public Services Commission the power to involve itself in any disciplinary matter relating to the Commissioner of Police.
No law outside Sch. 1.10(4) of the Constitution provides that the Public Services Commission can involve itself in disciplinary matters relating to the Commissioner of Police (or any member of the police force).
SECRETARY FOR POLICE
There is no contention that the office of Secretary for Police is a public service one. It was created by the Head of State on advice, under s. 14 of the Public Service Act, in 1976, Government Gazette No. 14 of 13th February, 1976, pp. 2-3. Mr. Bouraga was appointed to this office in 1979, Government Gazette No. 26 of 26th April, 1979, p. 305.
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.
Mr. Bouraga was appointed to the office of Secretary for Police pursuant to s. 193 of the Constitution. This Constitutional Law provides, inter alia, that appointments to “all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister” (s. 193(1)(a)) must “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” (s. 193(2)) (Emphasis mine).
Is a public servant appointed under s. 193 of the Constitution subject to disciplinary charges by the Public Services Commission under the Public Services Act or is he/she subject to the disciplinary powers given to the appointing authority under Sch. 1.10(4) of the Constitution?
Schedule 1.10(4) of the Constitution applies to appointments made under s. 193 unless there is contrary intention; Sch. 1.10(1).
It might be argued that s. 191(1)(b) of the Constitution read together with s. 194 sanctions the disciplinary provisions relating to Departmental Heads contained in the Public Service Act. But s 191 is expressed to be subject to the Constitution—in this case Sch. 1.10(4). Therefore in relation to disciplinary matters affecting departmental heads, s. 191(1)(b) does not apply.
I conclude, therefore, that a Departmental Head, appointed under s. 193 of the Constitution, is subject to discipline by the Head of State acting on advice, i.e. Departmental Heads may only be disciplined under Sch. 1.10(4) of the Constitution.
QUESTION II
Section 148 of the Constitution states as follows:
“(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
(2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.
(3) Subsection (2) does not confer on a Minister any power of direction or control.”
This Constitutional Law, in my view, does four things:
(a) it vests in the Prime Minister of Papua New Guinea the power to determine what ministerial title a particular Minister is to have; and
(b) what a Minister’s responsibilities must be; and
(c) of what departments, sections, branches and functions of government a Minister has political responsibility; and
(d) that s. 148(2) “does not confer on a Minister any power of direction or control.”
It does not say that a Minister has no power of direction or control whatsoever over a department, section, branch and function of government of which he/she has political responsibility. It is my view that s. 148 merely says that the fact that it (i.e. s. 148) vests in a Minister the political responsibility over a department, section, branch, etc. in itself confers no powers of direction or control over those bodies. I cannot also see that s. 148 prohibits Parliament from making laws vesting in Ministers power of direction and control over matters for which they have political responsibility. For instance, s. 2 and s. 24 of the Corrective Institutions Act say:
“2(1) Subject to this Act and to any directions of the Minister, the Commissioner is responsible for the management and control of all corrective institutions.” (Emphasis mine.)
“24(1) The Minister, the Commissioner or an officer of the Public Service authorized by the Commissioner for the purpose may, by written notice to the officer in charge of a corrective institution, police lock-up or rural lock-up, direct the removal of all or any of the detainees confined in the corrective institution or lock-up to another corrective institution, police lock-up or rural lock-up.” (Emphasis mine)
It is quite clear that s. 148 of the Constitution does not give the Minister for Police any power of direction or control over the Commissioner of Police. The Police Act does not confer on the Minister any power of direction or control over the Commissioner of Police or the police force. Neither s. 10 nor s. 12 of that Act gives such powers to the Minister. These sections provide as follows:
10. REPORTS
The Commissioner shall furnish to the Minister reports or recommendations on all matters required to be dealt with by the Minister under this Act or referred to the Commissioner by the Minister.
12. ANNUAL REPORT
(1) The Commissioner shall furnish to the Minister, at least once in every year, a report:
(a) on the conditions and efficiency of the force; and
(b) on the activities of the Commissioner, setting out:
(c) any changes that have been made; and
(d) any further measures that are necessary:
(i) for improving the working of the force; and
(ii) especially for ensuring efficiency and economy in the force or in any section of it.
(2) In the report, the Commissioner shall draw attention to any breaches or evasions of this Act that have come to his notice.
No legislation confers on the Minister for Police the power to direct and control the Secretary for Police. The Public Service Act contains no such provision or provisions.
Although the Minister for Police is not specifically empowered to direct and control either the force or the Commissioner, or the Secretary for Police, he has political responsibility for them. He has therefore the duty to ensure that the force and the Commissioner have funds to carry out the functions. He is also responsible for speaking on their behalf when they are under criticism. The Minister, therefore, has the right to be informed of all aspects of police operations. He has the right to request the head of the police force to provide information relating to the force.
A Minister is part of a Ministry which is given the responsibility by the Constitution to govern Papua New Guinea. Sections 141 and 149 provide:
141. The Ministry is a Parliamentary Executive, and therefore:
(a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and
(b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive ...
149. THE NATIONAL EXECUTIVE COUNCIL
(1) A National Executive Council is hereby established.
(2) The Council shall consist of all the Ministers (including the Prime Minister when he is present as Chairman).
(3) The functions of the Council are:
(a) to be responsible, in accordance with this Constitution, for the executive government of Papua New Guinea; and
(b) such other functions as are allocated to it by this Constitution or any other law.
(4) Except where the contrary intention appears, nothing in this Constitution prevents the powers, functions, duties or responsibilities of the Council from being exercised, as determined by it, through a Minister.
(5) Subject to any Organic Law or Act of the Parliament, the procedures of the Council are as determined by it. (Emphasis mine.)
How can Ministers be responsible for the executive government of this country if their departmental heads, Police Commissioners, etc. refuse to brief and inform them?
The executive government is a conglomerate of Ministers, public officers, statutory bodies, the police force, defence force, etc. The only body in the country that can hold this mass of men, etc. together is the National Executive Council. This is particularly reflected in the constitutional provisions already mentioned in s. 141, s. 148 and s. 149.
Each Minister is responsible to the National Executive Council for the functions etc. of his portfolio. In turn the National Executive Council is responsible to the people. It is this responsibility that carries with it the right of the Minister to be advised and informed of the activities, performances, and problems of those who are under his political responsibility.
It is the responsibility of civil servants to advise their Ministers. Granted neither the Constitution nor the Police Act nor the Public Service Act specifically so provides.
However, the governmental structure set out in the constitutional laws and statutes would not function if civil servants were not obliged to advise their Ministers.
It is the responsibility of the police force to maintain peace and good order in this country. If the force cannot do this because of lack of funds and manpower, it is incumbent upon the Commissioner of Police to advise the Minister. How can the Minister go to the National Executive Council and ask for more funds for the force if he is not in possession of relevant information?
Ministers and civil servants might like to read what is contained in Sir Ivor Jennings’ book entitled Cabinet Government (3rd ed., 1959) at pp. 125, 126:
“Sir Warren Fisher has stated the principles upon which civil servants act.
Determination of policy is the function of ministers, and once a policy is determined it is the unquestioned and unquestionable business of the civil servant to strive to carry out that policy with precisely the same good will whether he agrees with it or not. That is axiomatic and will never be in dispute. At the same time it is the traditional duty of civil servants, while decisions are being formulated, to make available to their political chiefs all the information and experience at their disposal, and to do this without fear or favour, irrespective of whether the advice thus tendered may accord or not with the minister’s initial view. The presentation to the minister of relevant facts, the ascertainment and marshalling of which may often call into play the whole organisation of the department, demands of the civil servant the greatest care. The presentation of inferences from the facts equally demands from him all the wisdom and all the detachment he can command.
Some other aspects were brought out in 1929 by a memorandum submitted by the association representing the administrative class of the civil service:
The civil servant has so to act as not to embarrass his minister and the Government of the day in their relations with Parliament and with organisations having political power. The volume of official work which calls for decisions affecting the public is nowadays such that it is physically impossible for the minister himself to give the decision except in the most important cases. And further, even when the issue is one which can and must be submitted for the minister’s personal decision, it has to be fully and fairly presented to him so that all the material facts and considerations are before him. The need for services of this kind is present in every department which has a political head.
There is another common feature of all work which is strictly administrative in character. It is usually described—for instance by the Reorganisation Committee of 1920—by the somewhat general expression ‘the formation of policy’. What is meant is, we think, this. The business of government, if it is to be well done, calls for the steady application of wide and long views to complex problems, for the pursuit, as regards each and every subject-matter, of definite lines of action, mutually consistent, conformed to public opinion and capable of being followed continuously while conditions so permit and of being readily adjusted when they do not. Almost any administrative decision may be expected to have consequences which will endure or emerge long after the period of office of the Government by which or under whose authority it is taken. It is the peculiar function of the Civil Service, and the special duty of the Administrative Class of that Service, in their day-to-day work to set these wider and more enduring considerations against the exigencies of the moment, in order that the Parliamentary convenience of today may not become the Parliamentary embarrassment of tomorrow. This is the primary justification of a permanent administrative service. Vacillation, uncertainty and inconsistency are conspicuous symptoms of bad administration. The formation of policy in this limited sense—subject always to the control of the minister and to the supreme authority of Parliament—is typical of administrative work in all departments and in relation to all subject-matters whether of greater or of lesser importance.
The civil servant’s function is thus to advise, to warn, to draft memoranda and speeches in which the Government’s policy is expressed and explained, to take the consequential decisions which flow from a decision on policy, to draw attention to difficulties which are arising or are likely to arise through the execution of policy, and generally to see that the process of government is carried on in conformity with the policy laid down. It is inevitable that he should develop and give expression to views of his own and that the department as a whole should adopt and seek to give effect to principles of action which arise out of the common experience of its senior members. It would be difficult to give specific examples because any such principles would not be expressed in writing; they would be the sum of the ‘inarticulate major premises’ of the officials concerned, and would be imperfectly known to the officials themselves. They would appear as the basis of minutes and memoranda and could be traced only by a careful comparison of the action recommended and taken with the conditions in which the recommendations were made. Such examples as may be cited are mere allegations, insusceptible of proof.”
The answer to Question II is “No”. However, it is the obligation and responsibility of civil servants to furnish advice to their Ministers.
QUESTION III
Section 196 vests the control of the police force in the National Executive Council. This control is to be exercised through the Minister for Police. The only matter involving the police that is not subject to control by the National Executive Council is their prosecutions function (s. 197(2) of the Constitution).
Section 196 of the Constitution reads:
“(1) The police force is subject to the control of the National Executive Council through a Minister.
(2) The Minister has no power of command within the police force, except to the extent provided for by a Constitutional Law or an Act of the Parliament.”
There cannot be any doubt whatsoever what s. 196 says. Subsection (1) puts it beyond doubt that the police force is subject to ultimate control of the Government of the day. The Minister himself, although vested with the political responsibility of the force and the Commissioner, holds no power to direct or control. However, I see no difficulty in the National Executive Council delegating its power of control to the Minister. This may be effected under s. 149(4) of the Constitution. Even though s. 196 does not empower the Minister to direct and control the force and the Commissioner, he has the right to be informed and briefed. My comments under Question II relating to the responsibility of civil servants to brief and inform their Ministers are applicable here too.
I would answer the questions referred as follows:
Question I: No.
Question II: No.
Question III: No.
KAPI J: A board of inquiry was appointed on 21st December, 1981, under the provisions of the Public Service (Interim Arrangements) Act 1973 (as it was then known) to hear charges by the Commission against the Police Commissioner, Phillip Bouraga. During the course of the hearing by the board of inquiry certain questions relating to the interpretation and application of the Constitution arose.
The board felt bound under s. 18 of the Constitution to refer these questions (see pp. 180-181).
The board adjourned its hearing pending the decision of this Court on the questions referred. Before this Court commenced the hearing of these questions, the Commissioner of Police tendered his resignation. The Public Service Commission accepted the resignation to take effect from 17th February, 1982.
On this date, the board resumed its hearing and after hearing submissions from counsel ruled that it was functus officio. As far as the board is concerned the matter is finished and required no further hearing. (See ruling by board, N367 dated 22nd February, 1982.)
The question that arises is, as the tribunal is no longer sitting, whether this has rendered the s. 18 reference incompetent?
Counsel appearing in this reference did not argue this issue fully but agreed that the court should go ahead and hear and determine the questions referred to it. The court agreed to adopt this course in the special circumstances of this case. The course taken by this Court should not be taken as a precedent. The issue should be properly argued and determined in future cases. We heard arguments on the questions referred.
QUESTION I
All the questions referred make reference to “Commissioner of Police and/or the Secretary of Police”. It is necessary to trace and establish the proper legal basis for the two organizations. This is a relevant issue raised by Question I.
The initial establishment of the police force and the office of the Commissioner of Police goes back to the colonial times. It is not necessary to trace the legal history that far back. For the purposes of this reference, it is only necessary to start with the Police Force (Interim Arrangements) Ordinance 1973 (as it was known then).
The police force under the Ordinance consisted amongst others of the Commissioner of Police appointed under s. 11 of the Ordinance.
The Commissioner of Police is charged with the management or administration of the police force (s. 9 of the Ordinance). Functions given under this section cover everything connected with the running of the police force (including administration and all the supportive services). This interpretation is supported by the Police Force (Interim Arrangements) Regulation 1974. For example, under regs. 23 and 24, the Commissioner is responsible for travel arrangements and personal effects of members who are appointed. The Commissioner is charged with all these responsibilities unless any of these responsibilities are given to another person or authority by the Ordinance or the Administrator. No such provision exists in the Ordinance and no such directions by the Administrator has been brought to our notice. (s. 9).
Thus the Ordinance which provides for the police force created no police department and office of secretary.
At Independence, s. 9 of the Ordinance was omitted by s. 5 of the Statute Law Revision (Independence) Act 1975 which came into operation on 15th September, 1975. Since Independence, the Ordinance like any others is known as an Act. Section 9 was replaced by an equivalent provision in the Constitution, namely, s. 198. It is in the following terms:
198. COMMISSIONER OF POLICE
There shall be, within the police force, an office of the 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.
Under this provision, the Commissioner of Police is responsible for superintendence, efficient organization and control of the police force in accordance with an Act (which is the Police Force (Interim Arrangements) Act now known as Police Force Act—Ch. 65 ... adopted under Sch. 2.6 of the Constitution). This means that he has to carry out his responsibilities in accordance with the provisions of the Act but the responsibility cannot be taken away from him except by amendment of this provision. There is no provision under the Constitution for the department of police and the office of Secretary for Police.
Under s. 191 of the Constitution, the Public Services Commission has no power or responsibility over the State Services which include the police force and the defence force (see s. 188 of the Constitution). The Public Services Commission may have responsibility over the State Services only on matters which may be prescribed by a Constitutional law or an Act of the Parliament (see s. 191(1)(c) of the Constitution). There is no such provision in the Constitution or any Act. Apart from this, it only has the responsibility of reviewing the services (s. 191(2) of the Constitution) and matters on which it may be consulted under the Police Force (Interim Arrangements) Act—e.g. s. 46 and s. 47.
The organization of the police force is to be contrasted with that of defence force. In the police force there is no provision for administrative matters to be performed by the Public Service Commission. All these matters come under the Commissioner under s. 198 of the Constitution. The police force is self contained. The Public Service has nothing to do with it. Whereas the defence force is set up differently. Under s. 201(5) of the Constitution, the Commander of the force is principal military adviser and an officer of the Public Service is responsible for civil matters. These functions are more clearly set out in the Defence Force Act 1974—now known as Defence Act—Ch. 74. The intention is clear that the Public Services Commission can play no part in the administration of the police force as a matter of power granted by the law.
HOW WAS THE DEPARTMENT OF POLICE AND OFFICE OF SECRETARY FOR POLICE CREATED?
The department of police was established by the Head of State on advice under s. 22 and s. 23 of the Public Service (Interim Arrangements) Act 1973. (See National Gazette No. G15, 13th February, 1976).
The functions of the police department are as set out in the Gazette:
“(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.
CONSTITUTIONALITY OF THE CREATION OF DEPARTMENT OF POLICE
Section 198 of the Constitution is clear that the superintendence and efficient organization of the police force is the responsibility of the Commissioner. This is an exclusive responsibility. The only requirement is that the responsibility must be carried out in accordance with the Act.
By creation of a department under the Public Service (Interim Arrangements) Act, this took away some of the responsibilities of the Commissioner (as above) and gave them to a different organization set up under a different legislation.
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. In relation to the performance of his duties, the provisions of the Police Force (Interim Arrangements) Act apply and not the Public Service (Interim Arrangements) Act. On matters of Discipline under Div. 8—Discipline of the Police Force (Interim Arrangements) Act, those provisions do not apply to the Commissioner. He cannot be charged under these provisions.
The Commissioner is now appointed under s. 193(2) and must be removed under Sch. 1.10(4) of the Constitution. There are no grounds or procedures laid down for his removal. It is clear that if the appointing authority has cause to remove the Commissioner then this is the only provision under which they can have him removed.
It seems to me that there is only one way in which the provisions of the Public Service (Interim Arrangements) Act could be said to have led to a proper and legal establishment of the Department of Police and office of the Secretary. This could only have been done by virtue of the provisions of the Police Force (Interim Arrangements) Act. 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.
It follows from my reasoning that the provisions of the Public Service (Interim Arrangements) Act can have no application to the Commissioner of the Police Force. This means that its provisions can have no application to Mr. Bouraga in relation to the alleged disobedience of orders given by the Minister. The Public Services Commission therefore has no power to lay any charges against him.
If the view I have expressed in relation to the unconstitutionality of the Department is correct, the other issues under Question I do not arise. However, in case I am wrong on this view I will consider the other issues.
Assuming that the Department of Police is legally created within the framework of all the laws, then the distinction between the two positions of Commissioner of Police and Secretary of Police is significant. The Commissioner of Police is responsible for the functions of the police and the Secretary of Police is responsible for matters set out in National Gazette No. G15 dated 13th February, 1976. On these matters he would be considered a Head of Department under the Public Service (Interim Arrangements) Act.
In relation to the facts as to whether or not these charges relate to the Commissioner as distinct from Secretary, it is unfortunate that the Board made no findings of facts in this regard. It is no function of the Supreme Court under s. 18 of the Constitution to make findings of fact. The facts should be found or agreed before a matter is referred under these provisions. Accordingly this Court cannot make any findings of fact.
Assuming that all the charges relate to the functions of Commissioner, the Public Service Commission would have no power to lay charges as the Public Service (Interim Arrangements) Act would have no application to the Commissioner.
Even if any of the charges relate to the functions of Secretary of Police, the proper way to deal with his removal would be under Sch. 1.10(4) of the Constitution. I hold this view on the basis that the Secretary for Police is appointed under s. 193(3) of the Constitution.
It is true that under s. 191(1)(b) of the Constitution, an Act of the Parliament may make provision for discipline in the Public Service including heads of department. Section 76 and s. 83 of the Public Services (Interim Arrangements) Act would appear to be in accordance with this provision. However, the provision of an Act which provides for this is subject to the Constitution. Section 191(1) begins with the words “subject to this Constitution”. This means that where a provision of the Constitution provides for the same subject, then where there is a clash between the two, the Constitutional provision shall prevail.
This means that an Act which provided for appointment and removal pursuant to s. 191(1)(a) of the Constitution must be read subject to the provisions of the Constitution on the same subject. As far as appointment and removal of Heads of Department is covered, the provisions of the Public Service (Interim Arrangements) Act must be read subject to s. 193(3) of the Constitution. Section 193(3) is to be read together with Sch. 1.10(4). In reading the two provisions together, there is nothing under s. 193(3) which shows that provision for removal of officers appointed under s. 193 is to be found in an Act of the Parliament. Section 193 is not subject to any law. The result is that Sch. 1.10(4) is to be read as part of s. 193 of the Constitution. Where there is any conflict with the provisions of the Public Service (Interim Arrangements) Act on the one hand and the combined effect of s. 193(3) and Sch. 1.10(4) of the Constitution then the provisions of the Constitution must prevail. This is the effect of the words “subject to this Constitution”. (See the authorities referred to in Question III).
On the appointment of Heads of Department, s. 68(1) of the Public Service (Interim Arrangements) Act provides for the Head of State to make the appointment on advice upon recommendation of the Public Service Commission. Under s. 193(3) of the Constitution, the appointment is to be made through the same channels. The difference is in the use of the words “recommendation” in the Act and “consultation” in the Constitution. I do not consider there is any substantial difference between the two. To consult means to allow for interchange and consideration of views. In practice this is the step to be taken by the National Executive Council. There can be no recommendation by the Public Service Commission, unless it is consulted by the National Executive Council. Whether one reads this from the point of view of the provisions of the Act or the Constitution, there is very little difference. They deal with the same process. However the inconsistency appears in s. 68(2) of the Act where the Commission may appoint a Head of Department without reference to the Public Services Commission.
The inconsistency also appears between the removal provisions. Under s. 83 of the Public Service (Interim Arrangements) Act, the Public Services Commission has the control over the laying of charges against a Head of Department. The Act also sets out clearly the procedure to be followed. However, under Sch. 1.10(4) of the Constitution the National Executive Council would initiate the removal of a Head of Department in the same way as he is appointed. The Public Service Commission can have no real control over this apart from being consulted. I reject the submission that they complement each other. The two schemes are quite different. To the extent that they are inconsistent, the constitutional provisions, namely s. 193(3) and Sch. 1.10(4) must prevail. This is the proper effect of the words “subject to the Constitution” in s. 191(1)(a) of the Constitution. This reasoning does not lead to the invalidity of the provisions of the Act.
However, by a process of reasoning under s. 11 of the Constitution, the provisions of the Act to the extent of the inconsistency are invalid.
The appointment of Mr. Bouraga as the Secretary of Police was effected under s. 193(3) of the Constitution. (See National Gazette No. G26 dated 26th April, 1979.)
It follows from my reasoning that, Mr. Bouraga should have been dealt with under Sch. 1.10(4) of the Constitution and not under the provisions of the Act.
Even if I was wrong on this last issue, I consider that the disciplinary offences as set out under s. 76 of the Public Service (Interim Arrangements) Act do not cover any disobedience of lawful order given by a Minister of State or orders given by the National Executive Council through a Minister. The Public Service (Interim Arrangements) Act deals with offences committed by officers of the Public Service regarding their duties and functions as set out under the Act. The Act does not deal with the functions of a Minister or National Executive Council in relation to a Head of Department.
The functions of a Minister in relation to a department are allocated under s. 148(2) of the Constitution and are not matters that come within the ambit of the Act. This is to be contrasted with, for instance, the Commonwealth of Australia’s Public Service Act 1922 (as amended) s. 25(2) which sets out the relationship between the Minister and Departmental Head.
The functions of the National Executive Council as far as the police force is concerned is provided under s. 196(1) of the Constitution. If there is any disobedience to any lawful order created by these relationships under the Constitution, then the proper course to discipline or remove him would be taken under the Constitution. This reasoning comes back to the provisions of Sch. 1.10(4) of the Constitution. As the Secretary and Commissioner of Police are appointed by the Head of State on advice of the National Executive Council under s. 193, the Minister may take the matter to the National Executive Council and have him removed by way of Sch. 1.10(4) of the Constitution. It follows from this reasoning that the Public Services Commission would have no jurisdiction over the charges involving the functions of the Minister in relation to the Commissioner and/or Secretary of the Department.
I would answer the first question in the negative.
QUESTION II
This question involves the proper interpretation of s. 148 of the Constitution. It is in the following terms:
148. FUNCTIONS, ETC., OF MINISTERS
(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
(2) Except as provided by a Constitutional Law or an Act of Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.
(3) Subsection (2) does not confer on a Minister any power of direction or control.
The responsibilities of a Minister are determined by the Prime Minister (s. 148(1)).
Whether or not the Department of Police is constitutional or not does not matter for the purposes of determining this question because the police force and police department would come under s. 148(2) of the Constitution.
By a determination under s. 148(1) of the Constitution, the Minister of Police is given the political responsibility of the police force and the police department. The nature and the extent of this responsibility is the same whether it is to the police force or the department of police.
What is the political responsibility of the Minister? The term is not defined. In my opinion the political responsibility of the Minister involves:
(a) all matters concerning a department, section, branch or function of government which require the deliberations or decision of the National Executive Council as a matter of responsibility of the National Executive Council as the executive government of Papua New Guinea. (See s. 149(3) of the Constitution.) It would be the political responsibility of a Minister of the particular department, etc., to submit, advise, inform, report or brief the National Executive Council to enable the National Executive Council to make decisions as the executive government of Papua New Guinea regarding the particular branch of government. This would include such matters as budget priorities and allocations.
(b) inform, report or answer questions in the Parliament or the public through news media regarding any matter concerning the function of the government as a member of the Cabinet which is responsible for the executive arm of the Government.
This responsibility is more in the nature of doing the groundwork for the National Executive Council for purposes of executive decisions under s. 149(3) of the Constitution and simply informing the public through Parliament or news media of the workings of the executive arm of the government on the particular branch or department of government. That is as far as the political responsibility of a Minister can go.
The question to be answered is whether the Minister has power of direction or control over the Commissioner and/or Secretary of Police such that he may lawfully issue orders in the nature of those which now form the subject of the charges?
The answer to this question is to be found in s. 148(3) of the Constitution. He who has no power of direction and control over a department, sections branch or function of government is powerless against that department, etc. That is to say that the power is not there from which a Minister can issue orders which form the subject of the charges against the Commissioner.
The lack of power of direction and control by a Minister under s. 148(3) relates to the political responsibilities. If it is desired for a Minister to have any power of direction or control outside those political responsibilities then those powers may be given to him by another provision of the Constitution or an Act of Parliament. See, for instance, s. 4 of Industrial Organisations Act 1973—Ch. 173.
The only thing s. 148(2) confers on the Minister is the right to request (and not the power to order) anything for the purposes of his political responsibility.
This may be contrasted with the powers of the National Executive Council under s. 196 of the Constitution where the National Executive Council has the control of the force. That is the issue raised by Question III. However, the Minister for Police is no exception as far as powers of direction and control are concerned under s. 196, because s. 196(2) specifically states that the Minister responsible for police has no power of direction or control. The word “command” in this section is synonymous with “direct” and “control”. This provision is consistent in this regard with s. 148(3).
The lack of power of direction and control by Ministers apparent in these provisions was a departure from the recommendation of the Constitutional Planning Committee Report. (See Final Report of the Constitutional Planning Committee Report, p. 7/6 par. 46 and p. 7/12 recommendation 29.)
The fact that a Minister has no power of direction and control should not lead to the conclusion that the system of government would be ineffective. Where Ministers’ requests are not complied with by heads of department under s. 148 of the Constitution, they may be removed by the Cabinet under Sch. 1.10(4).
I would answer the question in the negative.
QUESTION III
Division 4 of Pt VII of the Constitution deals with functions of the police force.
These are specifically set out under s. 197 of the Constitution.
The issue referred on this question is the same as Question II but it relates to the power of control by the National Executive Council through the Minister for Police under s. 196.
As to the question of the Secretary of Police, if my view is correct about the unconstitutionality of the Department of Police in Question I, then the issue raised by Question III in relation to the Secretary does not arise. All functions come under the Commissioner.
In considering s. 196 of the Constitution, the distinction between the Minister of Police purporting to act on his own right as a Minister by virtue of his political responsibilities is to be distinguished from the Minister acting on behalf of the National Executive Council under s. 196 of the Constitution. The former is dealt with under s. 148 of the Constitution. The nature and the extent of this responsibility is already dealt with under Question II. I have stated that he has no power to give these orders in the performance of his political responsibilities. If upon request, he does not get the information as in this case, then he can cause the National Executive Council under s. 196 to give direction to the Commissioner under s. 196(1). Where the National Executive Council gives this direction, the Minister may convey that to the Commissioner. Acting on the authority of the National Executive Council he may relay directions to the Commissioner in matters which form the subject of the first, second, third, and in relation to the fourth count, he may give directions on allegations of a demonstration and strike by members of the police force and directions can be given in relation to the killing of a policeman insofar as the National Executive Council wants to be informed of it but cannot give any directions if it is for the purposes of laying, preventing or withdrawing of charges related to the killing. This is the only exception to control by the National Executive Council under s. 197(2) of the Constitution. Apart from acting on behalf of the National Executive Council in the sense already described under s. 196, the Minister of Police has no power of control or direction. (See s. 196(2) of the Constitution.) The control of the force is by the National Executive Council and only it can give orders of the nature given in this particular instance. This is consistent with the view I expressed about s. 148(3) of the Constitution.
Having covered the whole field, one goes back to Question I and asks whether the Minister for Police was authorized to give these directions by the National Executive Council under s. 196 of the Constitution?
It is not disputed from the evidence of Mr. Dutton that he gave these directions not under s. 196(1) but under s. 148 for which he has no power of direction or control.
My answer to the question would be if acting under s. 196(1) of the Constitution, he may relay the directions or orders of the National Executive Council, which form the subject of these charges.
I now consider the meaning of “subject to control” in s. 196(1) of the Constitution. The words “subject to” have been considered by the courts. They are words of limitation. They imply that a power or function is given to a body and that power is limited by the body to which it is made subject. See Smith v. London Transport Executive [1951] A.C. 555 at p. 569 and p. 577. C. & J. Clark v. Inland Revenue Commissioners [1973] 2 All E.R. 513 at p. 520. I adopted these cases in Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531.
In the instance case, the functions:
(a) to preserve peace and good order in the country, and;
(b) to maintain and enforce the law;
are given to the police force under s. 197(1) of the Constitution.
These functions are made subject to the control or direction of the National Executive. This means that the police force shall carry out those functions within the terms of s. 197(1) but where there is a direction given by the National Executive Council in relation to those functions that direction must be followed. The National Executive Council may give directions on these functions with the exception of laying, prosecuting and withdrawing charges in respect of offences (s. 197(2)). The control given by this provision must be confined to matters of policy regarding the police force as a whole. It is not intended for the day to day running of the police force.
PRATT J: Some of the facts and history surrounding this reference have already been dealt with by Kapi J. and I shall not repeat them here. Mr. Bouraga had two distinct roles to play—that of Secretary to the Department of Police, being an organization set up under the Public Service (Interim Arrangements) Act to assist the constabulary in the performance of their role and functions under the Police Force (Interim Arrangements) Act (now the Police Force Act in the Revised Laws); and that of Commissioner of Police appointed under s. 11 of that Act and s. 193 of the Constitution. The appointment as Secretary and Head of the Department of Police was also made under s. 193 of the Constitution as well as s. 68 of the Public Service (Interim Arrangements) Act (now s. 57 of the Revised Public Service Act). As the material placed before the original tribunal arose before the Revised Laws of Papua New Guinea came into operation on 1st January, 1982, I shall adhere to the old section numbers and nomenclature for the sake of consistency and ease of reference with the material before the court.
The references made by the tribunal to the Supreme Court are set out at pp. 180-181 of the reasons for judgment of Kidu C.J.
The functions of the Department of Police are set out in Sch. 10 of the Government Gazette No. 15 of 13th February, 1976 at p. 9 as follows:
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.
This determination was made under s. 23(2) of the Public Service (Interim Arrangements) Act and in my view is clearly inconsistent with the independence and responsibility vested in the Commissioner under s. 198 of the Constitution. That section reads:
“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.”
It is he, and he alone, who has responsibility for efficient organization, and there is nothing to prevent the entire ancillary processes such as ordering materials, typing, secretarial and so forth from being set up within the four corners of the Police Force (Interim Arrangements) Act (hereinafter referred to as “the Police Act”). That indeed is the only Act which is relevant to the phrase used in s. 198 of the Constitution, “in accordance with an Act of the Parliament” and makes any reference to the provisions of s. 195 of the Constitution unnecessary. No doubt there are sound reasons for using civilians, being persons who are employees under the Public Service (Interim Arrangements) Act (hereinafter called “the Public Service Act”), and they of course would be under the supervision of a person occupying the rank of a departmental head. Provided they co-operated with the Commissioner so that he may efficiently organize his force, no problems should arise.
It has been suggested at one stage during argument that the Police Department cannot be set up under the Public Service Act as all powers are vested in the Commissioner to organize his police force. It was also suggested that any attempt to arrange ancillary services through deployment of public servants operating and engaged under the Public Service Act would have no legal basis as the Police Act itself is completely self-contained and provides ample powers for the Commissioner to set up his own ancillary services. As these matters were suggested only in passing however and were not developed in argument, I am not prepared to investigate the complexity of problems which they create, especially as there would be much additional material required to be placed before us before one could come safely to a final view.
Under the existing arrangement therefore the Public Services Commission supplies personnel under the Public Service Act to assist with these ancillary matters and for the sake of more efficient operation, has vested the Commissioner of Police with certain powers as departmental head in respect of these functions. It is of course forseeable that on occasions the role of Secretary to the Department may be occupied by one man whilst that of Commissioner is occupied by another. Indeed I understand this was the position for some period of time following Independence. It seems reasonable to say that where the Commissioner performs the dual role then he is answerable as Secretary for the Department to the Public Services Commission for any failure on his part to carry out these functions properly, but it is obvious that any charge laid against him under the Public Service Act must relate solely and entirely to such failure to perform within the framework of the Department of Police as such. It is just as clear that this area of responsibility is only a very minor area when taken alongside the duties and responsibilities of Commissioner under the Police Act.
In attempting to determine the limits of operation of a Department of Police set up under the Public Service Act, the court can obtain only partial assistance from examining the functions laid down in Gazette No. 15 just referred to. Paragraph 1 dealing with policy matters, is completely contrary to s. 196 and s. 198 of the Constitution. The department has nothing whatsoever to do with policy matters save in such ancillary ways as supplying the paper to write out policy and supplying a typist to type it. Even the Minister for Police himself can only make suggestions but will not have any powers of direction or control over the force or for that matter the department: Constitution, s. 148:
148. FUNCTIONS, ETC., OF MINISTERS
(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
(2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.
(3) Subsection (2) does not confer on a Minister any power of direction or control.
The power to determine policy is inherently a part of the Commissioner’s role as superintendent and organizer of the force, though the Constitution has made it clear that in the ultimate policy decisions shall be handed down by Cabinet through the Minister responsible for police matters: Constitution, s. 196(1)(2):
196. CONTROL OF THE POLICE FORCE
(1) The police force is subject to the control of the National Executive Council through a Minister.
(2) The Minister has no power of command within the police force, except to the extent provided for by a Constitutional Law or an Act of the Parliament.
No doubt in practice any major policy decisions on the role of the police would come from Cabinet and also no doubt the Minister would have a considerable effect on policy being the chief adviser on police matters to his Cabinet colleagues. Where the Commissioner makes a policy decision in areas not dealt with by Cabinet, then in the absence of a sensible compromise being reached, it is not the Minister who can reverse such decision but Cabinet only. It is obvious that the Constitution relies heavily on a good working relationship between the Minister and his Commissioner on the one hand and the Minister and the departmental head on the other.
The present impasse has nothing to do with policy rulings. It stems from a request or order by the Minister to be briefed on certain matters, that is, to be supplied with information on matters which were or could have been of considerable importance to the Ministry and Cabinet if for no other reason than that they were matters which quite conceivably could be raised by the people through their elected representative in Parliament. There are quite obviously other reasons why such information must be supplied. The powers wielded by any servant of the public, be he Minister, civil servant, judge or whatever, stem from a delegation from the people, (see Preamble to the Constitution), which is exercised through elected members and thus ultimately via the political responsibility of a Minister (s. 148) to Cabinet in respect of executive government (s. 149). Executive government of course is ultimately answerable to the people (s. 141). The political responsibility of the Minister to the public via Cabinet and Parliament does not however carry a power of direction or control (s. 148(3)), on the day to day workings of the department or body which make up the Minister’s area for concern, but obviously the Minister must be kept fully briefed on what has occurred and is planned otherwise his “political responsibility” would be an empty shell.
The first count in the list of disciplinary offences, it is said, does not deal with the performance of functions as Commissioner for Police but rather with the performance or lack thereof as head of department. Any suggestion that a charge under the Public Service Act against Mr. Bouraga can relate to anything other than his functions as departmental head cannot be sustained. Although the Acting State Solicitor submitted that the two positions of Commissioner and departmental head are so interrelated as to make division between the two impracticable, I think the Principal Legal Adviser rightly conceded that there was a clear division. Thus if there were a failure on the part of Mr. Bouraga to perform a duty in his capacity as departmental head concerning an administrative matter which clearly fell within such province, such failure would logically give rise to charges under the Public Service Act. The Principal Legal Adviser and the Acting State Solicitor however do have a common meeting ground in submitting that the order to supply information forming the basis of the first charge relates to departmental or administrative matters only. The order of course related to funding—specifically “to advise on the overall priorities for funding for the next year”. Such a request or order, say counsel, related exclusively or in part to the Commissioner’s duties as head of the Department of Police.
At first glance one would not view a matter of establishing priorities for allocation of funds as something purely administrative. The answer to who is to get what and when of the total funds allocated to the police force as between police divisions would be intimately concerned with policy decision—the placement of the greatest amount of funds where the need and urgency is considered most pressing. When one examines the evidence behind this charge it becomes clear that the whole incident arose out of the increased strain put upon the funds at the disposal of the force as a result of the policy decision to place more men in the field for the control of tribal fighting—“the hundred days operation”, together with the fact that the Commissioner had arranged for a press release concerning shortage of funds to be handed out without any reference to the Minister. At the bottom of p. 16 of the transcript of evidence before the tribunal, we find in response to the question “What was the purpose of that letter?” (that is the letter requesting a briefing on funds) the following answer:
“At about this time the Police Department, the Commissioner and his officers were preparing for a hundred days operation in the Highlands to control the tribal fighting. I was actually particularly interested in it, and wished to be briefed fully on the plan of operations and for the need for additional funding to carry out the proposed operations.”
Then at the bottom of p. 17 the Minister was asked:
“Now the letter you wrote to him was directed to him as Commissioner of Police and Secretary for Police, is that correct?”
to which the Minister replied:
“Yes, I consider that under both the Police Force (Interim Arrangements) Act and under my determination as Minister for Police, under both of those, I had every right to ask to be fully briefed on all matters under the Commissioner’s control.”
During his evidence before the tribunal Mr. Bouraga at p. 70 disclosed that the salary component for civilians in the department of police was approximately six percent of the total budget for the year 1981, and he continued on at p. 71 as follows:
“My concern in budget allocation is not on the overall figures, my concern is with the actual money spent in providing policing services to the people of Papua New Guinea.”
He goes on to make it quite clear that he was concerned with “the operational activities of the force” and that the Minister was requesting to be briefed on operational funding and not anything to do with expenditure involving non-uniformed personnel (see lines 37-42 on p. 71).
It is not part of this Court’s function to make findings of fact and I set out the foregoing extracts merely to obtain a better understanding of the argument. The ultimate findings of course would rest with the Tribunal. Nevertheless it seems to me that contrary to the submissions of Mr. Maino and Mr. Emos, such matters may well not fall into a purely administrative area akin to ordering up ballpoint pens or certifying overtime payments, or even preparing budget estimates (as distinct from preparing priorities within the estimates). Neither can I agree however with Mr. Donigi’s submission that the order to supply the information amounted to a direction and control of the force or the department. Whether it was an order or a request may not really matter, because the information was required by the Minister in order to carry out properly his “political responsibilities” in Cabinet and in the Parliament. Requesting and receiving such information had no effect on the members of the force. No member was being directed or controlled in relation to the performance of his duties under the Police Act. To my mind the term “direction and control” mentioned in s. 148(3) of the Constitution relates to the force or the department as a whole in the performance of its functions and a request or order for information from the Commissioner has nothing to do with control of the force. It might be said that direction is being exercised over the Commissioner himself but it does not seem to be an interference with a performance of his duties under the Act. I have no doubt that such direction was not the type in the mind of the framers of the Constitution—for how can a Minister be “politically responsible” for a department if he does not have the power to request and receive information from his departmental head. Nor do I consider that such direction in the present case amounted to a “command” within the police force, contrary to s. 196(2) of the Constitution for that sub-section is directed to the area more aptly described as “chain of command”. If one could use a nautical analogy, the Minister has power to command the Master to give information about the ship’s complement, fuel endurance, cargo and destination, but not to tell the helmsman to change course immediately as the ship is in imminent danger of running aground because both the captain and the Minister have been engaged in a dispute on the bridge instead of looking ahead. Some support for this view may be found in s. 20 of the Police Act which sets out the order of precedent and seniority of members of the force from Commissioner down to probationary constable. It is not surprising that no mention of a Minister is made in the list of rankings as at the time of the introduction of the original Act, no such institution existed and after Independence the Constitution specifically forbade the Minister to have any powers of command. I construe the word “command” quite simply to be an authority to direct even the most junior constable in any way concerning the performance of his tasks so that a failure to carry out the direction could be regarded as a breach of the disciplinary provisions covered in s. 80(b) of the Police Act.
I have said that it matters little whether the Minister makes an order or a request for information because if the information is not forthcoming it is clear that neither the Minister nor Cabinet can carry out their task, and it is equally clear that if the situation becomes serious the Cabinet has power to remove or suspend the Commissioner by joint application of s. 193 of the Constitution and Sch. 1.10.(4). thereof:
93. APPOINTMENTS TO CERTAIN OFFICES
(1) This section applies to and in respect of the following offices and positions:
(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and
...
(e) the office of Commissioner of Police; and
...
other than the offices of the members of the Public Services Commission.
(2) All appointments (whether temporary or substantive) to offices to which subsection (1)(b), (c), (e) and (h) 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.
(3) All appointments (whether temporary or substantive) to which subsection (1)(a), (d), (f) and (g) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, 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 ...
Sch. 1.10 EXERCISE AND PERFORMANCE OF POWERS AND DUTIES
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(4) Subject to subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place ...
Under s. 148 of the Constitution the Prime Minister shall determine the responsibilities of Ministers and except as provided by a constitutional law or Act of Parliament, any department becomes the political responsibility of a Minister. Political responsibility may be defined as a responsibility in the Minister as a member of the government for what the department has done in the past, is doing in the present and must do or should do in the future. As was suggested by Mr. Maino during argument, he has a responsibility to defend the department, if circumstances so require, when under attack in the House. Likewise he has responsibility to do the best he can to obtain funds for his particular department to carry out the operation within the context of the entire financial commitments of the country as determined by Cabinet. There are no doubt other areas of political responsibility which could be called to mind but it is not my intention to be definitive but merely to illustrate the principle which I think underlies the interpretation I am setting forth. What the framers of the Constitution have emphasized however is that in giving to the Minister political responsibility for a department under s. 148(2), they have not at the same time granted as a part of that responsibility any power to direct or control the department—be it the head of the department or any other individual within it. The giving of this political responsibility does not of itself confer any power. To put it another way, if there is to be any power of direction or control, it will not come from the area of political responsibility given to the Minister but from some other source altogether. I do not believe it was the intention of the framers of the Constitution to prevent Parliament from passing Acts which in fact have the effect either implicitly or explicitly of giving such power of direction and control to a Minister. Indeed a number of Acts do this very thing. In the Industrial Organizations Act (Ch. 173) s. 4(1) reads:
“4. DUTIES OF REGISTRAR, ETC
(1) Subject to this Act, the powers, functions, duties and responsibilities of the Registrar, a Deputy Registrar, an Inspector and an officer appointed under section 3(c) are as prescribed or as the Minister directs.”
There are similar sections in other Acts but one example is sufficient demonstration. The system of using an Act of Parliament to define and direct ministerial control over specific areas has the great advantage of letting everyone know exactly what powers are conferred in what areas, with the approval of the parliamentary members.
I repeat that it is essential for the operation of the executive government to be fed information from the various departments through the representative Minister. As a part of ministerial responsibility, I can see no objection to including within that area a right to have information upon request. To this extent then it is not necessary for the Minister to issue any orders to have such information made available to him. It is merely necessary for him to bring to the attention of the departmental head that there are certain matters of which he wishes to be acquainted, certain information which must be in his possession before he can confer with Cabinet or give proper answers to Parliament, and requests that such information be on his table by a particular date and time in order to carry out those responsibilities. Assuming that the Public Service Act is applicable to a departmental head, a failure by him to furnish such information would be a clear neglect of duty under s. 76(d) of the Public Service Act and possibly also s. 76(e). Once again, those provisions relate to a departmental head only and not to a person occupying the position of Commissioner of Police in relation to matters which are particularly within the concern of the Police Act either as a result of misconduct on the part of a particular police officer, the deployment of men, arms and equipment to various parts of the country, the funding of such deployment, the failure of police to investigate the commission of certain crimes, the circumstances surrounding the death of a police officer whilst carrying out his official duties as a member of the force, and so on. A request for information under these circumstances would have to be complied with but for different reasons, which I shall go into in a moment.
Returning now however to the departmental head, it should also be borne in mind that a departmental head is a person appointed under s. 193(a) of the Constitution, and he is so appointed because he is directly responsible to, in the majority of instances, a Minister (though in some particular cases to the National Executive Council). As a part of that responsibility there must be a duty to furnish to the Minister information and material pertaining to the department and its operations. Whatever the ambit of the term “responsibility”, it must in common sense be an integral part of that responsibility to acquire information relevant to a Minister’s portfolio and any failure to supply such information would not only be irresponsible but negligent in an extreme degree—that is negligent in carrying out the responsibilities given to him as departmental head.
Section 193(1)(a) of the Constitution refers to all offices whose occupants are directly responsible to a Minister. It is true that nowhere is there any enactment of Parliament stating specifically that a departmental head is an occupant who is directly responsible to a Minister but to maintain in the absence of such statutory stipulation that there were no such people, would be to make nonsense of the whole system of government. The role of a departmental head is in fact one which carries with it the responsibility of keeping the Minister in touch with what is going on in the department. That is perhaps another way of saying that the public servant is just that—a servant of a public whose representative within the particular department is the Minister himself. The governmental system adopted under our Constitution is basically modelled on Westminster with Ministers appointed from elected members by a Prime Minister elected himself from the combined vote of Parliament. The National Executive Council is responsible for the executive government of the country (s. 149). Ministers have a collective responsibility to the people (s. 141). The Minister himself has a political responsibility under s. 148 and the department through its head has a responsibility to the Minister. I do not think the matter could be put better than in the words of Sir Ivor Jennings quoted in the judgment of the Chief Justice herein.
In reference to the position of the Commissioner of Police as opposed to Secretary of the Department, it seems only reasonable that where he is requested to give information concerning the functions of the force as such quite opposed to any administrative role of either himself or civilian persons assisting the police force, one would expect the Minister and the National Executive Council to have some power to enforce a request for information made to the Commissioner for the purpose of overall planning and being apprised of relevant facts to answer questions properly raised in the House by representatives of the electors. That power of course may be found in s. 196 of the Constitution which places control of the police force fairly and squarely under the National Executive Council. Such control is exercised through the Minister for Police. If such Minister requested the information because he believed it was necessary for him to have it in order to exercise properly his political responsibilities and provided the National Executive Council were of the same view as the Minister, then undoubtedly there would be no need for such Council to issue any directive to the Commissioner—he would simply be dismissed under Sch. 1.10.(4) of the Constitution for failing to carry out his responsibilities of supplying information, albeit there may be certain requirements (for example observation of the principles of natural justice), which would have to be observed by the National Executive Council before such dismissal took place. That such pre-emptory powers of dismissal are given under the Constitution, I do not find in any way surprising. If a crisis were to occur for which information was urgently required, it would be intolerable that such information could be withheld. It is unthinkable that the National Executive Council would not have the power to act immediately by either dismissing or suspending the errant civil servant with all due speed, and putting someone else in his place who would do the job he is paid to do. As Police Commissioner the occupant of course is appointed under the Constitution and the Police Act, and he has nothing whatsoever to do with the Public Service Act. He need not in fact even be a public servant (in the restricted sense).
Whether it be as departmental head or Commissioner, the discretion as to whether he will be personally present at the briefing or whether it will be in oral form or writing is not his but the Minister’s. Further than that the Minister cannot go and more particularly it is not for the Minister to decide who would be the most appropriate person to present the information sought. If such person cannot in fact supply satisfactory information, then there has been a breach of duty to supply such information and the remedy is there.
It is submitted by Mr. Donigi that whether Mr. Bouraga be dealt with as Commissioner of Police or departmental head, he is not subject to any of the provisions of the Public Service Act, and thus the present charges are misconceived and without statutory foundation. Mr. Bouraga was appointed to both positions under s. 193 of the Constitution and reference to both the Public Service Act and the Police Act in the separate appointments to Secretary for Police and Commissioner of Police gazetted on 26th April, 1979, are both unnecessary and confusing. Mr. Donigi further submits that his client can be appointed only under the Constitution and therefore can be dismissed only under the provisions of that same Constitution—there being no other law relevant to the circumstances under Sch. 1.1. which provides:
Sch. 1.1. APPLICATION OF SCHEDULE 1
(1) The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.
(2) Unless adopted by law for the purposes, they do not apply to any other law.
Mr. Maino submits that the Public Service Act and the Constitution can stand side by side, there being no area of conflict between the two. He submits that the disciplinary provisions of the Public Service Act afford machinery for the operation of Sch. 1.10.(4). Alternatively Mr. Maino argues that Sch. 1.10.(4) only has effect where no other provision to the contrary exists, and that a contrary provision does indeed exist by virtue of the reference to an Act of Parliament dealing with public service matters made in s. 191 of the Constitution. Mr. Emos goes even further for it is his contention that as the one officer occupies both positions he is still nevertheless fundamentally and primarily a public servant and thus subject to the disciplinary provisions of the Public Service Act.
The submission of Mr. Maino, who restricts his argument here to Mr. Bouraga’s position as Secretary for the Department of Police, as opposed to Commissioner of Police, gains further support from the inter-relationship between s. 191(b) and s. 194 of the Constitution. There is some merit in the submission that the Department of Police is part of the National Public Service under s. 191(b) of the Constitution and that disciplinary matters are clearly within the province of the Public Services Commission under its Act of Parliament (namely the Public Service Act) by virtue of s. 194 of the Constitution.
The difficulty however with such submission stems from the fact that Mr. Bouraga both as departmental head and Commissioner is appointed under s. 193 of the Constitution. His appointment under s. 68 of the Public Service Act might well not create difficulties if it were not for the provisions of Sch. 1.10.(4), but I will deal with this aspect a little later on. It is further submitted that Sch. 1.10.(4) deals with general matters, that is lays down a general means of bringing about suspension or termination of persons referred to throughout s. 193 but that in relation to persons appointed under s. 193(1)(a) particular reference has been made to such persons in s. 191 of the Constitution, that is, persons in the Public Service who may be subject to an Act of Parliament, namely the Public Service Act. This is perhaps an argument based on the general principle of construction (with suitable modifications in the present circumstances to take into account the fact that we are dealing with the supreme law on the one hand and a subsidiary Act of Parliament on the other), that a general Act or provision will not derogate from a specific Act which deals with a special category.
However, one cannot get away from the clear statement in the Constitution that persons appointed as “heads of department” are so appointed under s. 193(3) thereof, despite the fact that the Constitution does not actually use that word of art but rather “occupants ... responsible to ... a Minister”. It is my view that as a matter of principle an appointment to the position of departmental head cannot be made by invoking the provisions of both the Constitution and the Public Service Act (though as a matter of practice there would no doubt be occasions in which the factual circumstances surrounding an appointment complied with the provisions of both statutes). An appointment under s. 68 of the Public Service Act is made by the Head of State acting on advice, following recommendation of the Public Service Board. The appointment may only be made at a time when the office is vacant. Further, in special circumstances the Head of State may appoint a person to the office of departmental head without any reference to the Board at all. (See now s. 57 of the revised Public Service Act in which another subsection has been added, namely—”This section is subject to s. 193 of the Constitution”. This subsection of course only states the obvious. It may be the case that by virtue of s. 9a of the Revision of the Law Act 1973, revision should not have been made to the Public Service Act because it has become a piece of subordinate legislation by virtue of the reference in s. 191 of the Constitution to an Act of Parliament.)
The appointment under the Constitution however is somewhat different. By s. 193(3) the appointment is “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. There are therefore important dissimilarities between the two sections:
(a) The inference is plain that under the Public Service Act the original impetus of appointment comes from the Public Service Board for it is the one which does the recommending, it is the body which puts forward a name for consideration. The term “recommendation” to me implies that the original movement will take place in the Public Service Board and not by the Head of State in Council.
(b) Under s. 193, “consultation” only is required. Such consultation of course may occur both before or after the National Executive Council has decided on an appropriate person to take over as head of department. In the Public Service Act consideration of the matter may only be given after a recommendation is made.
(c) The word “consultation” is a much less forceful term in my view than the word “recommendation”. A recommending authority is in a stronger position than one which has merely to be “consulted”.
(d) Section 68(2) of the Public Service Act envisages the Head of State on advice acting without any reference to the Board at all but no such dispensation is given to the Head of State under s. 193(3) of the Constitution.
(e) Before any appointment is formalized the position must already be “vacant” under the Public Service Act but this is not so under the Constitution.
The sum total of these discrepancies leads me to the irresistible conclusion that s. 68 of the Public Service Act and s. 193(3) of the Constitution are incompatible. Indeed they are in direct conflict one with the other. To blithely make reference in the instrument of appointment to both the Public Service Act and the Constitution does not resolve the conflict one iota. I do not think the framers of the Constitution intended the authorities to be able to place an each-way bet. What was clearly intended, and has been achieved, is an appointment of departmental heads under the provisions of the Constitution and under those provisions only. I agree that where s. 191 refers to an Act that Act can only be the Public Service Act; and the promotion, appointment, discipline, suspension etc. of personnel within the National Public Service is therein adequately covered, thus enacting the provisions required by s. 191 and s. 194 of the Constitution. But there is one important exception, namely departmental head or other occupant who would fall within the terms of s. 193(1)(a).
If the appointment of such departmental heads is made exclusively under the Constitution then it is axiomatic that any dismissal of a person acting in such a position must likewise come under the Constitution. In addition to this principle, we find that Sch. 1.10.(4) operates only where there is no contrary intention expressed in the Constitution itself or an Organic Law (Sch. 1.1.). In my view there is no contrary intention appearing in s. 191 and to infer such an intention would be to create a discrepancy between that section and s. 193(3). Indeed the framers of the Constitution envisaged the possibility of such a conflict and therefore made s. 191 “subject to this Constitution”, that is subject, inter alia, to s. 193 and Sch. 1.10.(4). Further, by s. 11 of the Constitution where there is any conflict between an Act of Parliament, (here Div. 4 of the Public Service Act dealing with the discipline of departmental heads), and the Constitution, (here Sch. 1.10.(4)), the Constitution shall prevail. As in the case of appointment, the method of disciplining, suspending, terminating departmental heads is quite different from the provisions contained in the Public Service Act. Schedule 1.10.(4) is irreconcilable with Div. 4 of the Public Service Act. It follows then that Div. 4 is unconstitutional and of no effect.
In the final analysis therefore, Mr. Bouraga could be disciplined either in his role as Commissioner of Police or in his role as Secretary for the Department of Police only under the provisions of Sch. 1.10.(4) and no other.
My answers therefore to the references made by the tribunal to this Court are as follows:
Question I(a): The Public Service Commission had no power to charge either the Commissioner of Police or the Secretary for Police under the Public Service (Interim Arrangements) Act 1973 with any of the disciplinary charges made the subject of the four counts before the tribunal or any other charges.
Question I(b): The Board of Enquiry appointed under the provisions of the Public Service Act does not have jurisdiction to enquire into the truth of the charges and to report to the Public Services Commission its opinion on it.
Question II: The Minister for Police does not have power of direction or control over the Commissioner of Police or the Secretary for Police such that he may issue any orders in the nature of those which form the subject of the disciplinary charges laid before the tribunal, but he does have the right to request such information and to be furnished with same.
Question III: The Minister for Police does not have power under s. 196 to issue any orders to the Commissioner of Police or to the Secretary for Police and more particularly did not have such power in relation to the orders set forth in the charges before the tribunal, unless such orders come from the National Executive Council.
Questions answered.
Q. 1, No; Q. 2, No; Q. 3, No.
Solicitor for the affirmative case: B. Emos, State Solicitor.
Solicitor for the negative case: P. Donigi.
Intervening: C. Maino-Aoae, Principal Legal Adviser.
[xxxiii]Infra pp. 189, 201.
[xxxiv]Infra pp. 189, 201.
[xxxv]Infra pp. 189, 201.
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