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Simon v Police Service Commission [2002] VUSC 50; Civil Case 135 of 2002 (8 August 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.135 of 2002

IN THE MATTER OF THE POLICE ACT [CAP. 105]

AND IN THE MATTER OF THE POLICE SERVICE COMMISSION DECISION AND RECOMMENDATION FOR THE APPOINTMENT OF COMMISSIONER OF POLICE

AND IN THE MATTER OF THE INSTRUMENT OF APPOINTMENT OF MAEL APISAI AS COMMISSIONER OF POLICE Dated 19TH JULY 2002

BETWEEN:

HOLI SIMON

Applicant

AND:

THE POLICE SERVICE COMMISSION

First Respondent

AND:

MAEL APISAI

Second Respondent

Applicant: Mr. Boar

First Respondent: Mr. Nakou

Second Respondent: Mr. Toa

JUDGMENT

A full written judgment will be delivered later.

The Court’s findings are as follows:-

1. I have given leave to apply for the relief sought;

2. I find that the procedure for recommending Mael Apisai as Commissioner of Police is defective in that:-

(a) The Police Service Commission did not interview Mael Apisai for the post.

Reason: I consider it unreasonable when making an appointment as important as Commissioner of Police that the Police Service Commission did not interview him.

(b) The Police Service Commission did not act in accordance with the legitimate expectations of candidates for the post and did not act fairly.

Reason: All twelve applicants were eventually considered by the Selection Panel. Four were interviewed and the applicant was recommended to the Commission, two other names were forwarded as being eligible. The second respondent was not required to follow this procedure.

The Police Service Commission did not have to accept any recommendation. However, if another candidate was to be recommended to the President then the legitimate expectation of all other candidates, particularly those interviewed, and fairness required that the candidate recommended to the President should have followed the same procedure. That did not happen as the Commission did not require Mael Apisai to be interviewed.

ORDER

1. A Writ of Certiorari will issue to remove into this Court and quash the recommendation of the Police Service Commission to His Excellency the President and the appointment by His Excellency the President dated 19^th July 2002 of Mael Apisai as Commissioner of Police.

2. A Writ of Mandamus will issue directing the Police Service Commission to recommence from advertisement the procedure to select a person to recommend to His Excellency the President as Commissioner of Police. A recommendation must be made as quickly as reasonably possible.

3. A Writ of Mandamus requiring the Police Service Commission to meet today 8^th August 2002 to consider the appointment of an Acting Commissioner pending the reconsideration set out in paragraph 2.

4. The Court will hear any applications for clarification on short notice.

NOTES

1. The Court has decided matters of procedure. No judgment has been made as to the merit of Mael Apisai, Holi Simon or any other candidate to be Commissioner.

2. This judgment does nor render lawful any unlawful acts committed since 19^th July 2002. Everyone must take the greatest care to act lawfully.

3. No finding is made on the legality of any actions taken since 19^th July 2002.

4. Any bail conditions which preclude any member of the Commission from attending meetings are waived for those purposes.

5. Re Police Service Commission Procedure

(a) The Commission may use a Selection Panel if they wish;

(b) If a Panel is used the Commission must consider its recommendations, but does not have to accept them;

(c) Any short-listed candidate must be interviewed;

(d) Any appointee must have followed the same procedure as unsuccessful candidates and be interviewed.

6. If there is any challenge to the recommendation of the Commission it must be done lawfully and through the Court.

Dated at Port Vila, this 8^th day of August, 2002.

R. J. COVENTRY

Judge.

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IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.135 of 2002

IN THE MATTER OF THE POLICE ACT [CAP. 105]

AND IN THE MATTER OF THE POLICE SERVICE COMMISSION DECISION AND RECOMMENDATION FOR THE APPOINTMENT OF COMMISSIONER OF POLICE

AND IN THE MATTER OF THE INSTRUMENT OF APPOINTMENT OF MAEL APISAI AS COMMISSIONER OF POLICE Dated 19TH JULY 2002

BETWEEN:

HOLI SIMON

Plaintiff

AND:

THE POLICE SERVICE COMMISSION

Defendant

Applicant: Mr. Boar

Respondent: Mr. Nakou

ORDER

1. Leave is granted to apply for Writs of Certiorari and Mandamus.

2. The applicant is to serve Mael Apisai with all documents in this case.

3. The Court is considering the issue of Writs of Certiorari and Mandamus quashing the recommendation of Mael Apisai to be the Commissioner of Police on the following grounds:-

(a) The failure of the Public Service Commission to interview Mael Apisai;

(b) The legitimate expectation of other candidates and fairness in that they were interviewed whereas Mael Apisai was not required to follow that procedure.

4. The hearing is adjourned to 8^th August 2002 at 8.00 am for any argument from Mael Apisai. The applicant must serve all documents and this Order upon Mael Apisai immediately.

Dated at Port Vila, this 7^th day of August 2002.

R. J. COVENTRY

Judge.