IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.2/21

BETWEEN

PILIOTA VILIAMU
APPLICANT

AND

ATTORNEY GENERAL
FIRST RESPONDENT	

PUBLIC SERVICE COMMISSION
SECOND RESPONDENT

AMUIA ALIGI
THIRD RESPODENT

Before 		Hon Judge   Sir John Muria

Hearing		19th September, 2022

Ms N. Tusipese for Applicant
Mr G. Drecala for First and Second Respondents
Ms C Nia for Third Respondent

J U D G E M E N T

Muria J :  	The application before the Court seeks judicial review of the decision relating to the appointment of Mr Amuia Aligi as Commissioner of Police.  The application is opposed by the respondents.

	Brief background

2.	The applicant is among the four (4) short listed candidates for the position of Commissioner of Police which was left vacant following the retirement of 	the former incumbent of the position in early 2020.  Prior to this, the applicant was appointed Acting Commissioner of Police for three months, 13th January to 12th April 2020 and thereafter the third respondent was appointed Acting Commissioner of Police for three months, 13th April to 6th July 2020.  With the four applicants shortlisted, an Interview Panel was set up to interview the applicants.

3.	Following the interview with each of the applicants, the Interviewing panel submitted its Report on the assessment on the merits on each of the applicants to the Second Respondent, the Public Service Commission (PSC).  Having received the Report on the Assessment on Merits on each of the applicants, the PSC forwarded a copy of the said Report now known as “M247/20 Report of the Selection Panel for the Commissioner of Police Post” to the Cabinet to “note and endorse “the overall ranking” of the applicants by the Selection Panel with the most suitably qualified applicant ranking No. 1 and going down in descending order of suitability for appointment as Commissioner of Police.  The ranking appears as follows;

			No. 1	Amuia Aligi
			No.2	Piliota Viliamu
			No.3	Matatia Makaili
			No.4	Asela Peneueta

4.   	The Report together with the Recommendations were sent to the Cabinet under the Cover of a Cabinet Paper prepared by the PSC on 22nd September 2020.  The purpose of the Cabinet Paper was to consult with the Cabinet as part of the process on the appointment of the Commissioner of Police in compliance with section 159 (5) (a) of the Constitution.

5.	Having had consultation with the Cabinet, the PSC prepared and tendered its advice to the Governor General to appoint the Third Respondent as Commissioner of Police.  On 27th October 2020 the Governor General 
appointed the Third Respondent as Commissioner of Police in accordance with the advice of the PSC given after consultation with the cabinet.

The applicant aggrieved

6.	The applicant, being aggrieved by the decision to appoint the Third Respondent as Commissioner of Police, brings these proceedings seeking judicial review of the decision of the Head of State appointing the Third Respondent as Commissioner of Police.  Leave to bring judicial review proceedings was granted to the applicant on 15th March 2021.  However, the substantive application for judicial review was only filed on 31st May 2022 after the Court queried as to why there has not been any substantive application for judicial review filed despite leave having been granted in early 2021.  I will add a comment or two on this aspect of the delay in filing the substantive application for judicial review after leave has been granted later in the judgment.

7.	Following the Leave granted on 15th March 2021, the applicant brings this application for judicial review seeking the following reliefs:

“A.	AN ORDER FOR CERTIORARI to remove into this Honourable Court the decision made to appoint Mr Amuia Aligi as Commissioner of Police and that the same be quashed;

B.	A DECLARATION that the Public Service Commission exercise of discretion to recommend and/or advice the Head of State to appoint Mr Aligi as Commissioner of Police was made contrary to sections 150 (1), 150 (3) and 159 (5) (a) of the Constitution of Tuvalu and its therefore unlawful, void and of no effect;

C.	A DECLARATION that the PSC’s decision to advice the Head of State pertaining to the appointment of the Commissioner of Police was tainted with bias and a breach of natural justice;

D.	A DECLARATION that the PSC’s decision to disregard the advice of Cabinet pertaining to the ranking of candidates for the Commissioner of Police post was irrational;

E.	AN ORDER FOR MANDAMUS directing the PSC to re-evaluate the applicants shortlisted for the post of Commissioner of Police and that an appointment be made on such re-evaluation after having proper consultation with the Cabinet as per the requirements of section 159 (5) (a) of the Constitution;

F.	AN ORDER FOR COSTS the amount of which and particulars thereof to be provided for at trial/hearing; and

G.	Such further declaration and any other relief that this Honourable Court deems just and equitable.

8.	The Grounds on which the applicant relies in support of his application,   are as follows:

H.	The exercise of PSC discretion as to advice or recommend the most suitable candidate for appointment was made contrary to law or legal requirements of section 159 (5) (a) of the Constitution, in that they did not consult Cabinet;

I.	The Applicant has more merits and senior management experience than the successful candidate who was appointed to the post, hence the decision to appoint otherwise was a breach to the Applicant’s legitimate expectation to be the preferred candidate for the Commissioner of Police post;

J.	Denial of natural justice and procedural fairness on the grounds of Bias decision by the PSC.  One of its members was a Panellist to the Interview Report, however, also sat in during the deliberations for the advice of the appointment of the Commissioner of Police;

K.	The PSC ignored, superseded, failed to take into account or refuse to follow the recommendation/decision of Cabinet where they endorsed the Applicant as the most suitable qualified applicant for the post of Commissioner of Police.  This they did on arbitrary grounds or by reference to irrelevant considerations while ignoring relevant considerations;

L.	May have taken irrelevant matters into consideration in appointing the successful applicant.”

Ground and Issues

9.	A number of issues are raised in the submissions of Counsel but I feel the central issue in this case is very much: whether the appointment of the Third Respondent as Commission of Police was made in compliance with the requirements of the law in particular section 159 (5) (a) of the Constitution.  I will consider those issues raised by Counsel in their submissions so as to properly determine what the Court sees as the central issue in this case.  In this regard, I shall consider each of the grounds relied upon by the applicant together with the issues raised therein.

10.	Issue Number 1 – whether cabinet was properly consulted.

	In his first ground of complaint the applicant states that the advice or recommendation of the Public Service Commission (“the PSC”) to appoint the third respondent on the most suitable candidate as Commissioner of Police was made contrary to law or the legal requirements of section 159(5)(a) of the Constitution.  The submission of Ms Nele Semu Tusipese of Counsel for the applicant is that Cabinet was not consulted as required by section 159(5)(a) of the Constitution.  The submission is based on the argument that the consultation made with the Cabinet on 22nd September, 2020 was in respect of the selection Panel’s Report which contained the Merit Assessment of the Candidates, the Ranking of the candidates as to their suitability to be appointed to the Post of Commissioner of Police and the Recommendation to appoint the third respondent who ranked No.1 as the most suitable candidate to be appointed Commissioner of Police.  Counsel further argues that the said consultation was not a consultation properly made for the purpose of the appointment of the third respondent Mr Amuia Aligi, as Commissioner of Police under section 159(5)(a) of the Constitution.

11.	The starting point in considering Ground 1 is section 159(5)(a) of the Constitution which provides as follows:

		“(5)  The Commisioner of Police:-

(a)	shall be appointed by the Head of State, acting in accordance with the advice of the Public Service Commission given after consultation with the Cabinet;”

12.	Brief though it maybe the above provision sets out the three stages to follow for the appointment of the Commissioner of Police.  First the Public Service Commission to consult with the Cabinet; secondly the Public Service Commission to give	its advice to the Head of State after consultation and with the cabinet thirdly the Head of State to appoint the Commissioner of Police acting in accordant with the advice of Public Service Commission.  It is must be noted that at the third stage of the process, there is no discretion left to the Head of State to do otherwise than to appoint the person as Commissioner of Police in accordance with the advice of the Public Service Commission.  The sole obligation on the Head of State is to act in accordance with the advice of the Public Service Commission:  Toafa –v- Attorney General [1987] TVHC 1; [1998] LRC (constitution) 898 (8th June 1987).

13.	Unlike the Constitutions of the other similar jurisdictions in the Region, the Constitution of Tuvalu, in my view, takes a rather independent approach to the appointment of the Commissioner of Police.  The language of Section 159(5)(a) demonstrates the preservation of that independence by having the two independent constitutional authorities, the PSC and Head of State, responsible for the appointment of the Commissioner of Police.  The PSC advises and the Head of State appoints.  The constitutional requirement of consultation is not determinative on the advice that the PSC tenders to the Head of State, rather it is only part of the process which enables the PSC to independently perform its constitutional function of tendering its independent advice to the Head of State who then is obliged to act on that advice.

14.	The view I expressed above is buttressed by section 150 of the Constitution, which guarantees the independence of the PSC and recognised in Toafa –v- AG (above).   Speaking of the then section 110 (now section 150), the Court affirmed the PSC’s independence as follows:

	“This section also guarantees the Commission’s independence by directing that in the exercise of its functions under the Constitution, it shall not be subject to the direction of any other person or authority”.

15.	It is important to re-iterate the guaranteed independence of the PSC as laid down in section 150 when interpreting and applying section 159(5)(a) of the Constitution in this case.  This is because any suggestion, directly or otherwise, that the recommendation by the Cabinet that the applicant was the most suitable candidate to be appointed as Commissioner of Police should be determinative of the choice and the advice tendered to the Head of State in place of the Merit Assessment and the Ranking on Merit made by the Interviewing Panel, would likely to offend the guaranteed independence of the PSC.  I said “likely,” because although the PSC had already accepted the Panel’s Report on the Merit Assessment and Rankings, there was still opportunity for the PSC to make up its mind, taking into account the Panel’s Assessment and the Cabinet’s preference before tendering its advice to the Head of State.

16	The PSC, in this case, had before it the Selection Panel’s Report with the Merit Assessment on each Candidate and Ranking on Merit, and the Cabinet’s recommendation made following the Consultation with the Cabinet, Armed with those materials, the PSC determined that the third Respondent to be the person to be appointed as the Commissioner of Police and accordingly advised the Head of State to appoint the third respondent as the Commissioner of Police.  The decision by the PSC to advise the Head of State to appoint the third respondent must clearly be a decision made in the independent exercise of it’s function under section 159(5)(a) of the Constitution.

17.	I turn next to deal with the applicant’s submission that there is no “proper consultation” with the Cabinet in this case.  In his first ground of the application, the applicant contends that the decision of the PSC to advise the Head of State to appoint the third respondent as Commissioner of Police, was made contrary to section 159(5)(a) in that the PSC did not consult the Cabinet.  Counsel for the applicant has now conceded that Consultation with the Cabinet by the PSC took place.  However, Counsel strongly submits that “Cabinet was not consulted by the Second Respondent when it decided to recommend the appointment of Mr Amuia Aligi (the third Respondent) as Commissioner of Police, as strictly required by section 159(5)(a) of the Constitution”.  (see para.17 of the Applicant’s submission).

18.	Consultation takes place in a variety of ways, depending on the nature and complexity of the matter, the subject of the consultation.  No agreement or accord is required to be reached.  The case of Packara –v- Nau [1971-1972] PNGLR 354 (1 July1971) referred to by Ms Nia of Counsel for the third respondent is in point.  In that case the Court, agreeing that the Administrator was obliged to consult with the Council, stated;

“We agree that the Administrator is obliged to consult with the Council – the Ordinance says so.  But it does not lay down any procedure to be followed nor does it require any accord to be reached.  The nature and extent of the communication necessary to constitute a consultation could depend on the nature and complexity of the proposal, where and when it originates, any previous communications or even a refusal by the Council to discuss the matter.”  

19.	Likewise, Mr Drecala of Counsel for the First and Second respondents submitted that consultation between the PSC and the Cabinet had been done as required by section 159(5)(a), relying also on the case of Pukara –vs- Nau to buttress the point that the process of consultation does not require the parties to agree to a position on the subject matter.  In support of his argument on behalf of the first and second respondents, Counsel relied on the affidavit of Panapasi Nelesone who served as Secretary to Government from 2000 to 2015.  From his experience on the process of the appointment of the Commissioner of Police, Mr Nelesone deposed to as follows:

“  1.	 THAT as the Secretary to Government (hereinafter referred to as “SG”) of Tuvalu from the year 2000 to 2015, I have the knowledge and experience to make this affidavit on the functions and roles of the Second Respondent in relation to the selection process of the Commissioner of Police (hereinafter referred to as “COMPOL”.
2.	THAT I depose to the facts herein, as within my knowledge and was acquired by   me in the course of my duties, save and except where stated to be on information and belief.

“3.  THAT during my term as the SG, there have been 3 separate appointments to the COMPOL position.

“4.  THAT to the best of my knowledge and memory, in all these appointments, the Second Respondent had the final say on who was appointed as the COMPOL which is in line with the Constitution and is also similar to how the SG is also appointed. 

“5.	THAT during my tenure as SG, the definition of consultation with the Cabinet, was merely a discussion with Cabinet, there was no need for the parties to come to an agreement on who would be appointed into the role because as mentioned, it was a decision that ultimately rested with the Second Respondent.

“6.	THAT this has been the practice from when I was SG and I believe that this is also the practice that is currently being followed and adhered to this day and what I believe was also done in the case of the Third Respondent.

“7.	THAT I recall an instance that during one such appointment process for the COMPOL position, there were three finalists, Mr Evi Tauaa, Mr Emau and Mr Willie Talavi.  Mr Tauaa and Mr Emau were considered to be more senior in position to Mr Talavi, however, ultimately the Second respondent decided to appoint Mr Talavi as COMPOL.

“8.	THAT the above instance is a prime example in which I recall that the COMPOL position is not guaranteed to the most senior police officer at the time but rather to the most suitable candidate for the task.  

20.	 The constitution does not use the words “proper consultation,” although to my mind and in compliance with section 159(5)(a), proper consultation or meaningful consultation, whatever one wants to call it, must surely mean doing exactly as the law requires.  In the present case,  that means the PSC must consult the Cabinet before tendering its advice to the Head of State. If the PSC advices the Head of State without first consulting the Cabinet, then section 159(5)(a) would not have been complied with.  This is the position in PSC –v- National Executive Council (NEC) [1994] PNGLR 603, the case relied on by the applicant.  Section 193(3) of the PNG Constitution required the NEC to consult the PSC before it advised the Head of State to appoint the five Departmental Heads.  The NEC did not consult with the PSC due to telephone problems and proceeded to advise the Head of State to appoint the Departmental Heads.  The Court held that there was no consultation made as required by section 193(3) of the Constitution and so the appointments of the five Departmental Heads were null and void.

21.	In the present case, the Selection Panel prepared and submitted its Report to the PSC.  To comply with its obligation to consult the Cabinet before advising the Head of State to appoint the Commissioner of Police, the PSC forwarded the Panel’s Report to the Cabinet, which received it, discussed it and as it was noted, the Cabinet made its preference known to the PSC.  That was clearly consultation for the purpose of section 159(5)(a) of the Constitution.  To go further as suggested by Counsel for the applicant that the PSC should then have consulted the Cabinet if it were to recommend to the Head of State that the third respondent be appointed Commissioner of Police.  I think this is taking the matter too far and stretching the application of section 159(5)(a) of the Constitution beyond its intended purpose.  The Court rejects such a suggestion.

22.	There is a further reason why the Court must reject the applicant’s contention.  This is because under section 159(5)(a) the PSC can only make any recommendation and advice the Head of State to appoint a person to be Commissioner of Police “after” its consultation process with the Cabinet.  For the purpose of consultation, the Report sent by the PSC to the Cabinet was clearly for the Cabinet to “note and endorse the overall rankings” of the applicants.  To suggest that the PSC makes the recommendation first and then consult the Cabinet would render the consultation process under section 159(5)(a) meaningless.

23.	Having completed its consultation process with the Cabinet, the PSC had before it, the selection Panel’s Report and the Cabinet’s preferred choice for the commissioner of Police.  The Selection Panel’s Report, inter alia, contains the four applicants’ applications, their interview results, their merit assessments and their rankings on merits which show that the third respondent (Amuia Aligi) is ranked No.1, the applicant, (Piliota Viliamu) ranked No.2, Matatia Makaili ranked No.3 and Asela Peneueta ranked No.4.  The Cabinet’s preferred choice is contained in its decision made on 23rd September, 2020 as follows:

“The Cabinet endorsed applicant No.2, Mr Piliota Viliamu as the most suitably qualified applicant for the post the Commissioner of Police.”

24.	That completed that consultation process and only then the PSC was in the position to make its decision as to which of the applicants it should advise the Head of State to appoint as Commissioner of Police. It did so and accordingly advised the Head of State to appoint the third respondent as the Commissioner of Police.  The Head of State, acting in accordance with that advice, appointed Amuia Aligi, the third respondent, as the Commissioner of Police of Tuvalu.

25.	There is some suggestion by counsel for the applicant, relying on the affidavit of the Hon. Minister Timi Melei, that the PSC needed to justify to the Cabinet as to why it did not adhere to the Cabinet’s endorsement of the applicant as the most suitable candidate for the post of Commissioner of Police.  The short answer to such a suggestion is that section 159(5)(a) as read with section 150 of the Constitution vests, the power to choose and to advise the Head of State as to who should be appointed Commissioner of Police in the hands of the PSC who is not bound by the preferred choice of the Cabinet during its consultation process.  If the choice of the Cabinet as to who should be Commissioner of Police, is to prevail, section 159(5)(a) would have been worded differently by the Legislature.

26.	I have already stated earlier that the constitutional provision on the appointment of the Commissioner of Police in Tuvalu differs to the Constitutional provisions in other similar jurisdictions in the Region.  In Papua New Guinea, the Commissioner of Police is appointed by the Head of State acting in accordance with the advice of the National Executive Council (Cabinet) given after consultation with PSC: section 193(2) of the Constitution of Papua New Guinea.  In Solomon Islands, the Commissioner of Police is appointed by the Governor General acting in accordance with the advice of the Prime Minister tendered after consultation with the PCSC:  section 42(2) of the Solomon Island Constitution.  In Kiribati, the Commissioner of Police is appointed by the Beretitenti acting in accordance with the advice of the Cabinet tendered after consultation with the Police and Correctional Services Commission(PSC): section 100(3) Constitution of Kiribati.

27.	In PNG, Solomon Islands and Kiribati, the authority that has the power to choose who should be the Commissioner of Police is the Cabinet (the Government of the day) who advises the Head of State to appoint a person to be Commissioner of Police after consulting the PSC. The choice of who should be a Commissioner of Police is, obviously in the hands of the Executive (the Cabinet).  That is not the position envisaged under section 159(5)(a) of the Constitution of Tuvalu.

28.	For the above reasons, I find that the PSC had complied with the requirements of section 159(5)(a) of the Constitution in that it had consulted the Cabinet before giving its advice to the Head of State to appoint Amuia Aligi, the third respondent, as the Commissioner of Police.  The applicant’s first ground is rejected.

29.	Issue Number 2 – Legitimate Expection

	This issue stems from the ground that the applicant has more merits and senior management experience than the third respondent, hence the decision to appoint the third respondent was a breach of the applicant’s legitimate expectation to be the preferred candidate for the post of Commissioner of Police.  I do not need to consider this ground since the applicant has abandoned it.  I need only state that the principles of legitimate expectation as expounded in R –v- North and East Devon Health Authority, ex parte Coughlan [2001] QB 213; [2000] 2 WLR 622; [2000] 3 All ER 850 that the legitimate expection “may arise from a representation or a promise by the public authority, including an implied representation or from consistent past practice”, have clearly not been met in the present case.

30.	Issue Number 3 – Denial of natural justice and procedural fairness-bias

	Under this ground, the submission of Counsel for the applicant is that the applicant was denied natural justice and procedural fairness because of bias decision of the PSC.  The gravamen of the applicant’s complaint under this ground stems from the fact that one of the members of the Interviewing Panellist Motulu Jack Pedro, was also a member of the PSC which recommended that the third respondent be appointed Commissioner of Police and as such it is said the appointment was flawed.

31.	The applicant is alive to the seriousness of the allegation of bias against the PSC and its Commissioners as noted by Counsel Ms Tusipese.  As such the allegation of bias in this case, as Counsel puts it “is purely intended to test, from the existing facts as evidence, the existence of apparent bias drawn from the observant and informed public’s perspective.”  This sounds very much like the applicant posing in an academic question and asking the court to draw a conclusion from the given facts as to whether bias or apparent bias exists or not.  Be that as it may, the allegation of bias is raised against the second respondent, the PSC, in the context of the present case.  This Court will have to consider it in the light of the facts of this case and answer the applicant’s question from the observant and informed public’s perspective.

32.	For the purpose the allegation of bias, the following facts are relevant;

1.	The post of Commissioner of Police was vacant and was advertised.  There were four applicants, the applicant (Piliota Viliamu), the third respondent (Amuia Aligi), Matatia Makaili and Asela Peneueta.

2.	The PSC selected the members of the Selection Panel to interview candidates for the post of Commissioner of Police.

3.	Motulu Jack Pedro was at the material time a member of the PSC and was also a member of the selection Panellist who interviewed the applicants for the post of Commissioner of Police.

4.	Each of the members of the Selection Panel interviewed, assessed and ranked each of the candidates.

5.	As a former Commissioner of Police, the PSC selected Motulu Pedro to be part of the Selection Panel which ranked Amuia Aligi as the Number One (No.1) candidate for the post of Commissioner of Police.

6.	At the consultation stage, the Cabinet endorsed the applicant, Piliota Viliamu as its preferred choice for the post of Commissioner of Police.

7.	The PSC advised the Head of State to appoint the third respondent, Amuia Aligi, as the Commissioner of Police pursuant to section 159(5)(a) of the Constitutions the Head of State appointed Amuia Aligi as the Commissioner of Police on 27th October 2020.

33.	I feel that it is helpful that I also set out here the procedure adopted by the PSC on appointments to public officers in the Government service, so as to put in context the case which we are dealing with at the present.  The procedure is set out in Part III, Rule 25 of the Public Service Commission Rules 2008, which states:
The appointment, promotion and transfer of public officers shall be made by the Commission (except where this power has been delegated) and the following procedure shall be applied:5
(1) as soon as it is known that a vacancy will occur in any office the Secretary, or Head of Division where there is no Secretary, shall forward to the Secretary to Government the appropriate staff vacancy form which shall include a recommendation as to how the office should be filled. If the recommendation is for recruitment from outside the public service, the supervising officer shall forward a draft advertisement with the staff vacancy form;
(2) upon receipt of the staff vacancy form and recommendation the Secretary to Government shall verify that there is no establishment or financial objection to the filling of that office and that the terms of the draft advertisement are correct, shall forward the staff vacancy to the Commission with all recommendations;

(3) if the Commission decides that the vacancy cannot be filled by an existing member of the public service it will cause the vacancy to be advertised locally. The Secretary to Government shall arrange publicity of the advertisement and shall submit the processed applications to the Commission with all recommendations;

(4) the Commission shall decide whether a Selection Panel shall be constituted to interview candidates, what the composition of any such panel shall be, (noting that it is not advisable for members of the Commission to sit on Selection Panels), and the form in which the report of the Panel shall be submitted to the Commission. The Commission may, if it sees fit, summon any of the candidates for interview. When the Commission is interviewing candidates it may be assisted by a Secretary, Head of Division or technical officer as adviser;

(5) any application made in respect of a vacancy locally advertised by a person who is not a Tuvaluan will be regarded as that made by a person overseas. When a vacancy is likely to involve the recruitment of an overseas officer, the Secretary of the Ministry concerned will report to the Commission on the availability of locally qualified officers and on the arrangements for training local candidates to fill such vacancy.
34.	The above process, in my view, shows an open, transparent and accountable process adopted by the PSC in the recruitment of public officers for appointments into the Government Service in Tuvalu.  This is particularly apt when understood that the PSC has an important and constitutional responsibility to advise the Head of State to appoint the right person to be the Commissioner of Police following the recruitment process.

35.	The affidavit of Panapasi Nelesone set out in paragraph 19 of this judgment, confirms the practice applied by the PSC in the past, in the recruitment process for the post of Commissioner of Police.  Mr Nelesone had been Secretary to Government from 2000 to 2015 and had seen the recruitment and appointments of three (3) Commissioner’s of Police during his 15 years as SG.  He deposed also to the fact that in his experience, the PSC had recommended the appointment of a candidate less senior than his co-candidates to be Commissioner of Police.  At the end of the day, the decision was entirely for the PSC to make.

36.	The procedure adopted by the PSC in the process of choosing the Commissioner of Police, was also consistent with the principle set out in section 152 as read with section 2 of Schedule 3 of the Constitution that the PSC “may make rules for regulating its procedures and the performance of its functions.” This principle is long settled in the case law, see Toafa –v- Attorney General [1987] TVHC1 [1988] LRC (const.) 898. Italeli –v- Attorney General [2009] TVHC 3; LLOYD –v- Mc Malion [1987]! AC 125; Jeffs –v- New Zealand Dairy Production and Marketing Board [1967]1AC 551; Doding –v- Public Service Commission [2004] Bda.LR 15; and Dr Gina Tucker –v- The Public Service Commission and Board of Education[2020] CA (Bda) civ 12.

37.	In Dolding –v- Public Service Commission, the Court, after referring to section 84 of the Constitution of Bermuda stated;

		“ I have demonstrated above that under section 84 of the Constitution the PSC can order its own affairs.  From the principles extracted from the above authority and cases it is clear that the wide discretion imposed on the PSC can in my view encompass the PSC relying on a Head of Department assisting in the interview portion of the selection process.  There can be much merit in relying on an interview panel.  Many competencies are required to be assessed in competition for a post.  One cannot expect that the members of the PSC are personally equipped to assess every competency, as relevant competencies vary as greatly as do job descriptions.

		Provided that the panel or Head of department supplies the PSC with a report containing the relevant assessments no criticism can be made of the process.  The only caveat to this to be derived from legal principle is that it is vital that the PSC itself should make the decision about whom they will recommend to the Governor for appointment.

38.	The Supreme Court, in Dr Gina Tucker –v- The PSC, applied Dolding –v- PSC and was upheld by the Court of Appeal as very much applicable to the role of the Board of Education (BOE) and PSC.  The allegation of bias was raised on the part of the PS who was the Head of Civil Service for taking part in the selection process.  Apart from an alleged bias on the part of the PS against the applicant (Dr. Tucker), the alleged bias generally arose from the fact that the PS was a member of the Selection Panel which made recommendation to the BOE which in turn, made recommendation to the PSC which in turn, after consultation with the Premier, recommended the appointment of the successful candidate to the Governor.  Both the Supreme Court and Court of Appeal rejected the allegation of bias and rejected that the whole selection and appointment process was flawed.

39.	The Court also rejected the argument in Dr Tucker –v- PSC that the applicant was more qualified and therefore should be appointed to the post of Commissioner of Education.  Dr Tucker had PhD (doctoral degree) in Education and other academic qualifications with many years of experience working in the Department of Education.  The successful candidate Mrs Richards possessed Bachelor’s Degree in English, Bachelors Degree in Education and Master’s Degree in Human Resources and Development plus 35 years experience as Educator.  The recommendation by the BOE, the PSC and appointment Mrs Richards by the Governor as Commissioner of Education was affirmed bot by the Supreme Court and Court of Appeal of Bermuda.

40.	In the present case, it is submitted on behalf of the applicant that, the participation of Motulu Pedro, a member of the PSC, in the Selection Panel that interviewed the candidates and later sat with the PSC when it recommended and advised the Head of State to appoint the third respondent as the Commissioner of Police, has the appearance of bias on the part of Motulu Pedro and so, the advice of the PSC to the Head of State was tainted with illegality. This case must be understood in the fact that the PSC has been constitutionally tasked to choose the best person to be appointed the Commissioner of Police and to advise the Head of State to appoint him or her to that post.  The PSC has the onerous duty of selecting the best person for the job of Commissioner of Police.  Competencies and suitabilities of candidates competing for the post were needed to be assessed and there was merit in such assessment being done at the interview Panel.  The decision by the PSC to have one of its members who was a former Commissioner of Police, to be part of the Interview Panel, in this case was, not only permitted under its own rules, but one that was essential to assist the PSC performed its onerous constitutional role in selecting the best person for the Commissioner of Police post. 

41.	The selection of former Commissioner of Police, Motulu to represent the PSC in the Selection Panel is in keeping with the practice of the PSC which had been engaged previously for recruitment of the Commissioner of Police.  The applicant’s complaint against Motulu’s participation in the selection process both at the Selection Panel and PSC is to ask this Court to ignore the important role Motulu played at the Selection Panel stage leading to the recommendation of Amuia Aligi, to the PSC as the Ranking Number One candidate for the post of Commissioner of Police and at the PSC deliberations to choose the best person for the position of Commissioner of Police and to advise the Head of State accordingly.  This is particularly crucial given the constitutional obligation of the PSC of advising the Head of State to appoint the person to be the Commissioner of Police.

42.	Like in the Dolding –v- PSC and Dr Tucker –v- PSC, the applicant’s argument cannot succeed.  The applicant has not shown any legal impediment for Motulu Pedro, a member of the PSC, to be part of the selection process at the Interview stage and still be part of the PSC when making the recommendation to the Head of State.  Section 152 of the Constitution authorises the PSC to regulate its own procedure and that must surely includes having one of its members who possessed the relevant expertise and competency to be involved in the interview and assessment on the merits of the candidates, essential for the post of Commissioner of Police.  The Panel’s report containing all the relevant assessments on each of the candidates was submitted to the PSC who ultimately was the body, after consultation with the Cabinet, to advise the head of State to appoint the most suitable candidate to be the Commissioner of Police.	

43.	Ms Tusipese made reference to a number of case law authorities on the issue of bias, such cases as Metropolitan Properties Co. (FGC) Ltd –v- Lannon [1969] 1 QB 577; Rex –v- Sussex Justices, exp. McCarthy [1924] 1 KB 256; R –v- Gough [1993] AC 646; Webb Hay –v- R (1994) HCA 30; Magill –v- Porter [2001] UKHL 67; R –v- Apisai Ielemia [2017] TVCA 1 and Saxmere Company Ltd –v- Wool Board Disestablisment Company Ld [2009] NZSC 72.  I accept the principles stated in all those cases as relevant to the application of the rules of natural justice or procedural fairness.  It must also, however, be accepted that each case must be decided on its own circumstances.  In this regard, this case must also be decided on its own factual circumstances.

44.	In the present case, the procedure applied by the PSC was well within its remits and as such, in my view, did not violate the principles of natural justice.  It has been stated in so many case law authorities that the principles of natural justice are not carved on tablets of stone because the requirements of fairness on the part of the decision-maker will depend very much on the character of the decision-making body, the kind of decision it has to make and the statutory or other frame-work in which it operates, as Lord Bridge puts it in Lloyd –v- McMalion [1987] 1 AC 625 at 702H – 703B:

“  My Lords, the so-called rules of natural justice are not engraved on tablets stone.  To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other frame-work in which it operates.  In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by was of additional procedural safeguards as will ensure the attainment of fairness.” 

45.	For the reasons outlined above and on the authorities referred to, the participation of Motulu Jack Pedro in the recruitment process for the position of the Commissioner of Police at the Selection Panel and at the PSC did not violate the principles of natural justice vis-à-vis bias or apparent bias, either on Motulu Pedro’s part or that of the PSC.  The ground alleging bias on the part of the respondents is rejected.

Ground 4 – PSC ignored, superseded, failed to take into account or refused to follow the recommendation/decision of Cabinet.

46.	The simple issue raised by this ground of the application is whether the PSC is legally required to follow the Cabinet’s choice of the candidate for the post of Commissioner of Police.  The answer is also very simple.  The PSC is not legally bound to follow the Cabinet’s preferred choice of who should be appointed the Commissioner of Police when advising the Head of State under section 159(5)(a) of the Constitution.  Counsel for the applicant conceded that legal position and rightly so.

47.	However, a new addendum to this ground now seeks to impose on the PSC the obligation to give reasons for not adhering to the Cabinet’s choice of who should be appointed Commissioner of Police.  Counsel submitted that the PSC is required by section 159(5)(a) of the Constitution to give reasons for refusing to follow the Cabinet’s endorsement of the applicant’s candidacy and that by refusing or dis regarding the recommendation of the Cabinet the decision of the PSC to advise the Head of State to appoint the third respondent to be Commissioner of Police was irrational since it lacked proper reasons.  In support of the case for the applicant, Counsel cited the case of Associated Provincial Picture Houses Ltd –v- Wednesbury Corporation [1948] 1 KB 223 (“the Wednesbury”).

48.	Although not stated by Counsel, the Wednesbury case laid down two limbs to the test of “Wednesbury unreasonableness”.  The First limb focuses on the decision-making process of a public body and second limb focuses on the decision itself where, even if the decision-making process is correctly followed, the decision is so outrageous or irrational “that no sensible person who had applied his mind to the question to be decided could have arrived at it” per Lord Diplock at p.410.  

49.	In the present case, and as the applicant has conceded that consultation had occurred and that the “PSC was and is not legally required to follow or adhere to the recommendation of Cabinet after consultation,” the applicant seeks to lay hold on the second limb of the test of Wednesbury unreasonableness to suggest that it was irrational or unreasonable that the PSC chose to disregard the Cabinet’s recommendation without giving any reasons or justification given to the Cabinet.  As expected, the respondents vehemently opposed the applicant’s contention.

50.	Mr Drecala of Counsel for the first and second respondent strongly submitted that the applicant has already conceded that the second respondent (PSC) was not legally required to follow or adhere to the recommendation made by the Cabinet.  As such it does not make sense now for the applicant to insist that the PSC was required to furnish reasons or justification for not adhering to the recommendation made by Cabinet.  Counsel further submitted that section 159(5)(a) of the Constitution does not support the position now contended for by the applicant.

51.	In the same views, Ms Nia of Counsel for the third respondent submitted that section 159(5)(a) of the Constitution did not oblige the PSC to abide by the recommendation of the Cabinet.  The purpose of the consultation process under section of 159(5)(a) was to gather the views of the Cabinet.  The decision as to who should be appointed and to advise of the same to the Head of State belongs to the PSC in keeping with its independence as guaranteed by the constitution.  As such there was no requirement for the PSC to justify to Cabinet for not adhering to Cabinet’s recommendation.

52.	In my judgment, giving the words used in section 159(5)(a) their natural and ordinary meanings, no obligation can be said to have been imposed on the PSC to give reasons for not abiding by the Cabinet’s preference of the applicant to be appointed as the Commissioner of Police.  The deliberate Constitutional omission in section 159(5)(a) cannot be filled by the rules of natural justice.  In the words of Deane J in Public Service Board NSW –v- Osmond [1986] HCA 7; (1985/1986) 159 CLR 656 at pp. 675-676:

“… the ordinary common law position remains that established by the authorities …. namely, that where as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission”

53.	Having considered the submissions on behalf of the applicants and the respondents on this point, I find the submissions by Counsel for the respondents to be formidable in law and Constitution, as being in conformity with sections 159(5)(a) and 150 of the Constitutions and established practice as described in the affidavit of Panapasi Nelesone.  The applicant’s contentions that the PSC must give reasons or justification for not adhering to the Cabinet’s recommendation on its preferred choice of the candidate for the Commissioner of Police is without merit.  Equally the second part to the applicant’s contention that by not giving reasons for not adhering to the Cabinet’s recommendation, the PSC’s decision to advise that Head of State to appoint the third respondent as Commissioner of Police was irrational and/or unreasonable, within the Wednesbury unreasonableness principles is also without merit and it is rejected.  For if a public body such as the PSC, is not required by law to perform an act such as to abide by the Cabinet’s decision and it has not done so, it can hardly be said that it was acting irrationally or unreasonably for not doing so.

54.	Ground 5 -  Taking irrelevant matters into consideration in appointing the successful applicant.

	On this, ground, I must accept the submission of Counsel for the third respondent that there is no evidence before the Court to show that the PSC had taken irrelevant matters or any at all in deciding that the third respondent be appointed as Commissioner of Police and to advise the Head of State accordingly.  This ground is without merit and it is rejected.

55.	Whether Prejudicial to the third respondent 

The consideration of all the five grounds relied on by the applicant in support of his application is now complete.  There is, however one issue raised by Counsel on behalf of the third respondent, namely that the substantive determination of the applicant’s application will prejudice the third respondent who has already served more than half of his tenure under his contract of employment.  Apart from the submission filed on behalf of the third respondent, no submission in response to the issue has been made by counsel for the applicant or by Counsel for the first and second respondents.  In so far as the Court is concerned, it is not necessary to deal with the issue raised by the third respondent in view of the fact that all the grounds relied on by the applicant have failed.  Only if the grounds relied on by the applicant succeeded then it may become necessary to go on to consider any prejudice to the third respondent.

56.	All the grounds relied on by the applicant in support of his application fail.  Consequently, the application for Judicial Review brought be the applicant is dismissed. In terms of the Orders sought in the Originating Summons, the Court orders as follows:

1.	“A.	AN ORDER FOR CERTIORARI to remove into this Honourable Court the decision made to appoint Mr Amuia Aligi as Commissioner of Police and that the same be quashed is refused.

B.	A DECLARATION that the Public Service Commission exercise of discretion to recommend and/or advice the Head of State to appoint Mr Aligi as Commissioner of Police was made contrary to sections 150 (1), 150 (3) and 159 (5) (a) of the Constitution of Tuvalu and its therefore unlawful, void and of no effect is refused.

C.	A DECLARATION that the PSC’s decision to advice the Head of State pertaining to the appointment of the Commissioner of Police was tainted with bias and a breach of natural justice is refused.

D.	A DECLARATION that the PSC’s decision to disregard the advice of Cabinet pertaining to the ranking of candidates for the Commissioner of Police post was irrational is refused.

E.	AN ORDER FOR MANDAMUS directing the PSC to re-evaluate the applicants shortlisted for the post of Commissioner of Police and that an appointment be made on such re-evaluation after having proper consultation with the Cabinet as per the requirements of section 159 (5) (a) of the Constitution is refused.

2.	The respondents shall have their costs of this application to be taxed if not agreed.

Order Accordingly.

Dated on 31st October 2022

Sir John Muria
Judge