Damem v Maipakai [2004] PGLawRp 41; [2004] PNGLR 600 (24 November 2004)

NATIONAL COURT OF JUSTICE

FRANCIS DAMEM, SECRETARY AND ATTORNEY-GENERAL, DEPARTMENT OF JUSTICE AND ATTRORNEY GENERAL

V

HON. MARK MAIPAKAI MP
MINISTER FOR JUSTICE;
HON. SINAI BROWN MP
MINISTER FOR PUBLIC SERVICE;
KEN KAIA, GOVERNMENT PRINTER; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: INJIA, DCJ

24 November 2004

JUDICIAL REVIEW – Application for certiorari - Suspension of Departmental Head for disciplinary reasons – Procedure prescribed by Statutory and Constitutional Law – Breach of prescribed procedure by Public Services Commission and Minister for Public Service – Application granted – suspension quashed – Constitution, S.193 1D; Public Services (Management)(Criteria and Procedures for Suspension and Revocation of Departmental Heads and Provincial Administrators Regulations' 2003, S.2.

STATUTES – Procedure for Suspension of Departmental Heads prescribed by Constitution, Public Service Management Act and Regulations – Inconsistencies between provisions of Regulations and Act with Constitution – State to rectify inconsistencies.

Facts

The applicant was seeking judicial review of the decision of the second respondent, to suspend him for disciplinary reasons, pending investigations into certain allegations of misconduct in office. He sought and was granted an order in the nature of certiorari to bring up to the Court and quash that decision. Leave to seek review was granted on 24 September 2004.

The grounds for review were that the decision by Minister for Public Service was ultra vires and in breach of section 193 (1D) of the Constitution and in breach of section 31D of the Public Services (Management) Act thus is consequently null and void. Secondly, that the recommendation by the Public Services Commission by letter to the Minister for Public Service to suspend the plaintiff was ultra vires and in breach of section 31D(b) of the Public Services (Management) Act.

Held

1. The Minister for Public Service has no power to suspend a Departmental Head referred to him by the Departmental Head's own Portfolio Minister and the Commission has no power to refer and recommend to the Public Services Minister to suspend the Departmental Head.

2. The Commission erred in law by acting contrary to s.193 1D of the Constitution, and s.31D of the Public Service Management Act 1986, in making its recommendation for suspension back to the Minister for Public Service, to effect or suspend the applicant.

3. The Minister for Public Service acted ultra vires s.193 1D of the Constitution and s.31D of the Public Service Management Act 1986 by exercising suspension powers which he did not possess.

4. The actions of the Minister for Justice, the referral by the Minister for Public Service and the Commission's deliberations and decision are tainted by the ultra vires actions of the Minister and the Commission. In the circumstances, the whole decision-making process on the applicant's suspension is tainted and flawed.

5. The applicant has correctly sought certiorari to quash the decisions of the Commission and the Minister. (R v North Yorkshire C.C; ex p.M [1989] Q.B 411 applied)

Papua New Guinea cases cited

Kekedo v Burns Philp (New Guinea) Ltd [1988 – 89] PNGLR 122.
Rimbink Pato v Tom Manjin SC622 (1999)
Simon Ketan v Lawyers Statutory Committee N2290 (2001).

Other cases cited

R v North Yorkshire C.C; ex p.M [1989] Q.B 411.

Counsel

H Nii, for the applicant.
L Henao with J Kawi, for the respondents.

24 November 2004

Injia, dcj. The Applicant is the Attorney-General of Papua New Guinea. He is also the Secretary of the Department of Attorney General. He applies for judicial review of the decision of the second respondent ("the Minister") made on 14 September 2004, to suspend him for disciplinary reasons, pending investigations into certain allegations of misconduct in office. He seeks an order in the nature of certiorari to bring up to this Court and quash that decision. Leave to seek review was granted on 24 September 2004. The first, second, and third respondents were not heard on the leave application because the application is normally made ex parte: see O 16 r 3(3). The fourth respondent was heard on the leave application through representation by the Solicitor General's office, pursuant to s.8 of the Claims By and Against the State Act 1996.

The grounds of review pleaded in the latest Amended Statement in Support dated 2 November 2004, raise the issue of whether the Public Service Commission's ("the Commission") recommendation to the Minister to suspend the applicant and the Minister's subsequent decision to suspend the applicant were both ultra vires their powers given by S.193 (1D) of the Constitution, s.31D of the Public Service Management Act 1995 ('the Act"), and s.2 of the Public Service (Management) (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 ("the Regulation" ).

The grounds of review are:

"A. The decision by Hon. Sinai Brown, MP, Minister for Public Service dated 14 September 2004 to suspend the plaintiff is ultra vires and in breach of section 193 (1D) of the Constitution and in breach of section 31D of the Public Services (Management) Act thus is consequently null and void. Under the stated provisions of the Constitution and the Public Services (Management) Act only the Head of State can effect the suspension of the plaintiff.

B. The recommendation by the Public Services Commission by letter dated 13 September 2003 to the Minister for Public Service to suspend the plaintiff is ultra vires and in breach of section 31D(b) of the Public Services (Management) Act. Section 31D(b) of the Act states that where, as a result of its investigations, the Commission is of the opinion that the Departmental Head should be suspend, it shall so recommend to the National Executive Council."

The uncontested facts from the affidavit evidence filed and relied upon by the parties, are those set out the applicant's counsel in his written submission and I adopt them:-

(a) On 9 January 2001, the applicant was appointed the Secretary for the Department of Justice and the Attorney General of Papua New Guinea. He subsequently entered into a Contract of Employment with the State on 12 April 2001 with retrospective effect from the date of his appointment. His appointment will expire on 9 January 2005.

(b) On 21 January 2004, the Hon. Mark Maipakai, MP, Minister for Justice (first respondent) wrote to then Minister for Public Service, Hon. Peter O'Neil, referring to him allegations of misconduct against the applicant.

(c) On 21 January 2004, the first respondent by internal memorandum to the applicant informed the applicant about his referral to the Minister for Public Service.

(d) On 21 January 2004, the first respondent by letter informed the Prime Minister about the applicant's referral to the Public Services Minister for Public Service.

(e) On 5 September 2004, the Hon. Sinai Brown, MP, Minister for Public Service (second respondent) wrote to the Public Service Commission, setting out the charges against the applicant, and among other things, enclosing allegations, Charges and Notice of Suspension.

(f) On 13 September 2004, the Public Services Commission wrote to the Minister for Public Service, recommending suspension of the Applicant.

(g) On 14 September 2004, the Minister for Public Service wrote to the applicant enclosing Notice of Suspension and Two Disciplinary Charge Notices.

On 22 September 2004 when the applicant filed these proceedings, the Applicant did not have in his possession any concrete information or evidence as to the Minister's decision to suspend him. On 22 September 2004, when he made the application for interim restraining orders, I enquired of the existence of the decision. Subsequently, copies of letters exchanged between the Commission and the Minister were produced before me. Copies of relevant correspondent between the Commission and the Minister are now in evidence before me. These documents support the above facts.

The correct procedure to be followed in suspending a Departmental Head in a case where the Portfolio Minister makes allegations of improper conduct against his own Departmental Head, is not in issue in these proceedings. But this procedure was not eventually settled between the parties without difficulty. It appears to me that prior to the hearing, the parties, in particular the applicant, were not quite sure about the correct procedure. At the hearing, it was clear to me that key players in the disciplinary process were confused about the correct procedure. One reason for this confusion, it appears to me, is that there are inconsistencies or anomalies in the procedure for suspension under the relevant statutory provisions. It is necessary therefore, to set out the relevant provisions and the application of these provisions by the key players in the present case, as evident from correspondences exchanged between those key players, and point out the main inconsistencies and anomalies, so that State can take some remedial actions.

It is convenient to first set out the full text of the correspondences exchanged between the Minister, the Commission and the applicant. They are:-

1. Letter dated 5 September 2004 to Chairman of PSC from the Minister for Public Service (Annexure "A" to Mr Nii's affidavit sworn on 23 September, 2004). The letter states:-

"I refer to Justice Minister, Hon. Mark Maipakai's letter of referral dated 21 January 2004 regarding serious allegations of impropriety against the current Attorney General, Mr. Francis Damem.

"I enclose a copy for your information.

"For purposes of consultation, the Justice Minister, Hon. Mark Maipakai has correctly referred the Attorney General to us on these serious allegations of impropriety for us to take appropriate actions under the disciplinary provisions within his contract of employment and the Public Service Management Act.

"These allegations are very serious and I write to inform you of my intention to suspend with full pay the current Attorney General, Mr Francis Damem under Section 27(1) of his contract of employment for serious allegations of impropriety within the meaning of section 18(g) and 18(h).

"Section 27(1)(a) of his Contract of Employment states:

"Where the departmental head is alleged to have committed a serious offence under Section 18, the Minister shall suspend the departmental head on full pay, and the Minister shall formally charge the officer in writing with the offence allegedly committed and enable the departmental head to reply to such charges prior to submitting a report to the National Executive Council (NEC)"

"The Attorney General has a current contract of employment which expires on the 9 January 2005 and it was alleged that he has committed serious offences under section 18(g) and 18(h) of his contract of employment.

"Section 18. Termination for cause provision states:

In the event that the Departmental Head:

(g) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of official duties;

(h) is guilty of disgraceful or improper conduct in the discharge of official duties or otherwise;

The departmental head is guilty of a serious disciplinary offence and the Head of State acting on advice from the National Executive Council may immediately terminate the employment without notice provided that the disciplinary Procedures under section 27 has been implemented.

"The Ombudsman Commission and the Police have also initiated their own investigations given the nature and seriousness of these allegations.

"These investigations (Police and Ombudsman Commission) will also cover the conduct of the former Acting Solicitor General, Mr John Kumura for serious breaches of section 50(a), (h) and (i).

"I refer this matter to you to satisfy the requirements of Statutory Instrument No. 7 of 2003, Public Services (Management) [Criteria and Heads & Provincial Administrators (1)] Regulation 2003. Section 2(3)(a), (b), (c), (d).

"Lastly, I enclose copies of the Allegations, Charges and Notice of Suspension in compliance with section 27 together with a copy of my NEC Submission for cabinet endorsement for immediate suspension of the current Secretary for Justice and Attorney General, Mr Francis Damem from office. These allegations are serious enough to warrant instantaneous removal from office.

"For your information and immediate action please."

(Signed)

Hon. Sinai Brown, MP

Minister for Public Service".

2. Letter from PSC to the Public Service Minister dated 13 September 2004. The letter states:

"RE: PROPOSED SUSPENSION OF THE ATTORNEY GENERAL ON DISCIPLINARY GROUNDS

I refer to your letter dated 5 September, 2004 regarding above matter.

The Commission has deliberated on the report and information your office submitted regarding the alleged misconduct by the Attorney General and it is satisfied that a prima facie case exists warranting suspension.

The Commission, therefore, hereby recommends that you suspend the Attorney General with pay pursuant to your delegated power under Section 149 of the Constitution. But ensure you get NEC's ratification of the suspension within 30 days of your decision to suspend as required by Section 2(3)(d) of the Public Services (Management) Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators Regulation 2003, (No. 7 of 2003).

Yours sincerely

(signed)

J.E. TETEGA, OBE

Chairman"

3. Copy of Notice of Suspension issued by the Minister dated 14 September 2004 which was not served on the applicant. It states:

"Public Service (Management) Act 1995.

"NOTICE OF DISCIPLINARY SUSPENSION UNDER SECTION 27 OF THE TERMS AND CONDITIONS OF A CONTRACT OF EMPLOYMENT.

TO: Mr Francis Damem

Secretary & Attorney General

Department of Justice & Attorney General

PLEASE TAKE NOTICE THAT: Pursuant to Section 31D(a)(ii) of the Public Services (Management)(Amendment) Act 2003, Section 28 of the Public Services (Management) Act 1995, Section 2(3)(d) of the Public Services (Management)(Criteria and Procedures for Suspension and Revocation of Appointment of Departmental and Provincial Administrators Regulation 2003, (No. 7 of 2003) and Section 27 of your contract of employment, you are hereby suspended from duty on disciplinary grounds, with effect from the date that this notice is served on you, until further notice.

AND PLEASE TAKE FURTHER NOTICE: That I have laid against you two (2) serious disciplinary offences based on two separate allegations contained in the separate Forms attached, in respect of the offences that you are alleged to have committed.

AND PLEASE TAKE FURTHER NOTICE: That during the period of suspension you will be paid your entitlements under your contract, however, as a condition for payment, you are required to FORTHWITH return to my office, all keys to files and offices and all files and papers and any other documents in your possession related to your position or to the Department. You are required to maintain contact with my office and not to enter the Secretary and Attorney General's Office without my specific approval, or to deal with any of the files or staff of the Department in connection with the Disciplinary Charges served on you.

Dated this .......................14th ................. day of September 2004.

Signed by: .......................(Signed).....................

HON. SINAI BROWN OBE, MP,

Minister for Public Service."

4. The Charge documents issued by the Minister, were not served on the Applicant. The pertinent parts of the Charge documents are as follows:

PUBLIC SERVICES (MANAGEMEN) ACT 1995

Offence References: No: 01/2004

Notice of Disciplinary Charge Under Section 27 of the Terms and Conditions of A Contract of Employment of A Departmental Head of the Public Service

TO : MR. FRANCIS DAMEM

Secretary and Attorney General

Department of Attorney General

P O Box 591

WAIGANI

National Capital District

PLEASE TAKE NOTICE THAT: Pursuant to Section 27 of your Contract of Employment, you are hereby charged with having committed serious Disciplinary Offences within the meaning of Section 18(a)(g)(h) of the Terms and Conditions, thereby breaching your Contract, NAMELY THAT:

(FACTS OF CHARGE:- Specified)

PLEASE TAKE FURTHER NOTICE: That in accordance with Section 27 of the Terms and Conditions of your Contract of Employment, you are required to respond in Writing to the Charges within 7 days of the receipt of the Charges to enable you to state whether you admit or deny the truth of the charges and give any explanation in writing that you think fit for my consideration.

AND PLEASE TAKE FURTHER NOTICE: That should you fail to respond in the manner required within the stipulated time you may be deemed to have admitted the truth of the charges and thereby render yourself liable to terminate for Cause.

DATED this ...........14th ............. Day of ..........September.....2004.

.........(Signed).........

HON. SINAI BROWN, OBE MP

MINISTER FOR PUBLIC SERVICE."

5. Copy of Acknowledgement of Service of Charge by the Applicant, which the Applicant did not complete as he was not served with the Charges. It reads:

Public Services (management) Act 1995.

DELIVERY OF NOTICES OF DISCIPLINARY CHARGES, DEPARTMENTAL HEAD CONTRACT OF EMPLOYMENT

Offence References: No: 01/2004

I CERTIFY THAT I have served the Notice of Disciplinary Charges made by the Minister for Public Service on MR. FRANCIS DAMEM, Reference No. 01/2004, pursuant to Section 27, Disciplinary procedures of the Standard Terms and Conditions of the Departmental Head Contract of Employment.

Place Notice Served: .....................................

Date and Time Served: ..................................

(N.B. Officers serving and witnessing the signing of these charges are to write their names clearly in BLOCK LETTERS below their signatures).

I ACKNOWLEDGE RECEIPT OF THE NOTICES 01/2004 RECORDED ABOVE.

...........................................

MR. FRANCIS DAMEM

COMMENTS MADE BY THE CHARGE SERVER AND WITNESS IF NECESSARY:

Signed: ...........................Witness: ........................."

6. Copy of letter from Applicant's Lawyer to PSC dated 17th September 2004 requesting information on investigations and suspension of the applicant. The letter states:

"RE: ATTORNEY-GENERAL AND SECRETARY OF JUSTICE – MR FRANCIS DAMEM

We act for Mr Francis Damem, Attorney General and Secretary of Justice.

We have been instructed that the Minister for Public Service is attempting to deliver a suspension notice to our client.

It is our instruction that the Minister may be attempting to effect the suspension without complying with the provisions of the Public Services (Management) Act (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 ("Regulation").

Please confirm if either the Minister for Justice or the Minister for Public Service have complied with Section 2 of the Regulation, with the following:

1. Whether the Public Services Commission has recommended the suspension of the Attorney General and Secretary for Justice;

2. Whether the Minister for Public Service has provided a Written report to the Public Service Commission in order to assist it to establish a prima facie case for suspension of the Attorney General on disciplinary grounds.

We would appreciate it very much if you could kindly provide these information as soon as possible.

Thank you.

Yours faithfully

(Signed)

HARVEY NII

7. Copy of letter from PSC to applicant's Lawyer dated 17 September 2004 responding to request. The letter states:

RE: ATTORNEY-GENERAL AND SECRETARY FOR JUSTICE – MR FRANCIS DAMEM

I refer to your letter above referenced and dated 17 September, 2004.

The Commission has considered your request for the information and has decided that it would not be proper to give you the requested information at this stage, when the Attorney-General has not been suspended.

You are only assuming, based on your instructions, that the Minister will effect the suspension without complying with the Public Services (Management) Act (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation 2003. This is a hypothetical situation, and the Commission cannot disclose confidential information on a mere request in respect of such a hypothetical situation.

The Commission's deliberations and decisions in relation to appointment, suspension and dismissal of Departmental Heads and Provincial Administrators are confidential in nature, and cannot be disclosed upon a mere request where the appointment, suspension or dismissal has not been effected.

I hope you appreciate the Commission's position in this regard.

Yours sincerely

(Signed)

T.E. TETAGA, OBE

Chairman"

There is no dispute on the correct procedure to be followed in suspending a Departmental Head who is referred by his own Portfolio Minister to the Public Services Minister. The procedure is provided in s.193 1D of the Constitution, s.31D of the Act, s.2 of the Regulation and Clause 27 of the Contract of Employment.

The power to appoint, revoke an appointment and suspend a Departmental Head for disciplinary causes is provided in Constitution, s.193, as follows:

".193. 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;

"(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services commission following procedures prescribed by or under an Act of the Parliament.

"(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.

"(1D) The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.

Section s.31D of the Act provides the procedure for suspension of a Departmental Head. It provides:

"(a) the Commission—

(ii) shall, at the request of the Minister responsible for Public Service matters;

(b) where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommended to the National Executive Council.

(c) On receipt of a recommendation under Paragraph (b), the National Executive Council shall advice the Head of State to suspend the Departmental Head from office."

The applicant's Contract of Employment dated 9 January 2001, provides grounds for revocation of appointment of a Department Head and the procedure for suspension as those prescribed in the Standard Terms and Conditions for Employment of Heads of Central Agencies in the National Public Service (1999) ("Standard Terms and Conditions"). Clause 27 of the Standard Terms and Conditions states:

"27. DISCIPLINARY PROCEDURES

27.1 Serious disciplinary matters pursuant to Section 18 hereunder, allegedly involving the Departmental Head shall be resolved through the following procedure:

(a) Where the Departmental Head is alleged to have committed a serious offence under Section 18, the Minister shall suspend the Departmental Head on full pay, and the Minister shall formally charge the Officer in writing with the offence allegedly committed and enable the Departmental Head to reply to such charges prior to submitting a report to the National Executive Council.

(b) The Departmental Head shall formally respond to the charge in writing to the Minister within 7 days of the charge being laid and the Minister shall consult the Minister for Public Service prior to advising the National Executive Council.

(c) The Minister shall submit a copy of the charge, the Departmental Head's formal response, any other relevant evidence, together with recommended action to the National Executive Council and the National Executive Council having obtained a legal opinion shall determine whether or not the Contract should be terminated.

(d) The decision of the National Executive Council shall be final, and the terminated Departmental Head may seek redress through the Papua New Guinea Courts of Law in the event that he considers the termination to have been made unfairly.

27.2 Notwithstanding the above procedure, the Minister may following consultation with the Head of the Department of Personnel Management, formally caution or warn the Departmental Head in writing for unsatisfactory performance of duties, where the disciplinary offence is considered by the Minister not to warrant Termination for Cause, under Section 18 herein."

Section 2 of the Regulation implies certain procedure into Clause 27 of the Standard Terms and Conditions. Section 2(1),(2) and (3) of the Regulation deal with suspension and they provide:

(1) A Portfolio Minister may suspend a Departmental Head from office on disciplinary grounds, only in accordance with a recommendation of the Public Services Commission, pursuant to Section 193 (appointment of certain offices) of the Constitution, and ratification by the National Executive Council, ensuring that the provisions of these Regulations and the Departmental Head's contract are complied with.

(2) A suspension may only be effected in accordance with the criteria and the procedures contained within a contract of employment entered into between the Head of State and the Departmental Head.

(3) The grounds or the criteria and the procedure for suspension prescribed by a contract of employment shall include the following provisions:

(a) Where allegations of serious misconduct have been made against a Departmental Head by his or her Portfolio Minister or by the Chief Secretary to Government, dependent upon the circumstances and the nature of the allegations, which may require instantaneous removal from office, the Portfolio Minister shall provide a written report to the Minister for Public Service.

(b) The Minister for Public Service shall provide a written report to the Public Services Commission to establish a prima facie case for suspension of the Departmental Head on disciplinary grounds.

(c) Where the Public Services Commission upholds the advice of the Minister, it will make a recommendation to the National Executive Council to effect the suspension, and by delegation under Section 149 (the National Executive Council) of the Constitution, the Portfolio Minister or the Minister for Public Service shall effect suspension from office on full pay to enable investigations to be conducted, and or disciplinary charges to be laid.

(d) Suspensory action taken by a Portfolio Minister or the Minister for Public Service shall be ratified by the National Executive Council no later than 30 days following the action, and the National Executive Council shall determine the time required in which to conclude investigations and/or disciplinary proceedings against the Departmental Head."

Reading these provisions together, the correct procedure for suspension in a case where the Portfolio Minister makes an allegations of serious misconduct against his own Departmental Head, is that neither the Portfolio Minister or the Minister for Public Service has any power to suspend the Departmental Head. The portfolio Minister must provide a written report to the Minister for Public Service (Regulation, s.2(3)(a), (b)). This is to avoid conflict of interest situation. Based on the report by the Minister for Public Service, if the Commission is satisfied that there is a "prima facie case for suspension", the Commission must make a recommendation to the National Executive Council to "effect the suspension" (Regulation, s.2(3)(c) (first part only). The NEC then decides on the recommendation. Up to this point, the first part of s.2(3)(c) of the Regulation and Clause 27 of the Contract are consistent with s.31D(a) and (b) of the Act.

The second part of s.2(3)(c) of the Regulation is not consistent with s.31D(c) of the Act. Under the second part of s.2(3)(c) of the Regulation, if the NEC decides to suspend, the NEC does not "advice" the Head of State to suspend the Departmental Head. Instead the NEC delegates the authority to the Minister for Public Service to implement or effect the suspension and lay disciplinary charges. Whereas, under s.31(D)(c) of the Act, the NEC "advises"the Head of State "to suspend" the Departmental Head. In the event of an inconsistency between provisions of a Regulation made under an Act of the Parliament and provisions of the Act, the latter prevails: see Constitution, s.10. This Court has no jurisdiction to rectify this inconsistency. The State may have to rectify this by amending s.2(c) of the Regulations.

There appears to be another inconsistency between the procedure under s.31(D)(c) of the Act, and Constitution s.193(1D). Under S.31D(c) of the Act, the PSC recommends to the NEC, the NEC decides on the recommendation and then the NEC "advices" the Head of State, to suspend the Departmental Head. This is the normal procedure. Under s.86(2) of the Constitution, the Head of State is required to act "with, and in accordance with, the advice of the NEC."

Whereas under s.193(1D) of the Constitution, the Head of State is required to "act with" and "in accordance with the recommendation",, of the Commission and "suspend the Department Head." Accepting suspension as a disciplinary measure to facilitate an independent investigation into disciplinary matters, it appears that s.193 (1D) of the Constitution gives a measure of independence to the Commission to investigate the disciplinary matter and then make its recommendation for suspension directly to the Head of State. Of course when the investigations are completed and charges laid and the disciplinary process is completed, the ultimate revocation of the Departmental Head's appointment will be made by the Head of State "acting with, and in accordance with the advice of the National Executive Council": Constitution, s.193 1C. The Commission is involved in this decision-making process because the Commission makes the recommendation for revocation to the NEC. Therefore, the decision to suspend the Departmental Head pending the commencement and completion of disciplinary process is in effect, made by the Commission and the Head of State simply endorses the Commission's recommendation. Section 193(1D) of the Constitution up to this point appears to be clear. But there is a potential conflict between this section and S.31D(c) of the Act. The State needs to rectify this inconsistency.

Then there is the latter part of s.193 1(D) of the Constitution, which creates room for confusion. The phrase which creates the confusion is "following procedures prescribed by or under an Act of the Parliament." Does this phrase mean the Commission must recommend to the Head of State, through the NEC, as it says in s.31D(c) of the Act or does it mean some other administrative procedure should be provided in the Act for the Commission to follow in making a recommendation directly to the Head of State? The State needs to clarify this as well.

Notwithstanding these inconsistencies, the procedure for suspension is clear. The Commission cannot recommend back to the Public Services Minister to suspend a Departmental Head referred to the Commission by the Minister under s.2(3) of the Regulations. The Commission must either recommend to the NEC (s.31(D) of the Act) or the Head of State directly (s.193 1D of Constitution). Ultimately, the Head of State effects the decision to suspend made by the Commission or the NEC. In real terms, the ultimate suspending authority is the NEC or the PSC, either of whose decision is simply endorsed by the Head of State. The Minister for Public Service has no power to suspend a Departmental Head referred to him by the Departmental Head's own Portfolio Minister and the Commission has no power to refer and recommend to the Public Services Minister to suspend the Departmental Head.

The plaintiff submits that, whichever procedure applies, either under the Act or the Constitution, the second respondent acted ultra vires his powers under these provisions.

Mr Henao for the second respondent does not seriously contest this argument. He submitted that rightly or wrongly, the decision to suspend the plaintiff was made by the second respondent upon recommendation of the PSC.

In the circumstances, I have no hesitation in finding that the second respondent exceeded his powers or acted ultra vires s.31D of the Act and s.193 1D of the Constitution.

Mr Henao's argument however is on a discretionary consideration. He submits notwithstanding the rightness or wrongness of the Minister's decision, the application should be dismissed because the applicant does not have a reasonable cause of action. The disciplinary process has not yet commenced because the suspension notice has not yet been served on the plaintiff. There is no decision to review. Therefore the question of infringement of any legal right he may have which may warrant an intervention by this Court in the disciplinary process, does not arise. He submits the application is without proper legal basis, it is pre-mature, misconceived and an abuse of process of the Court. He relies on the Supreme court decision in Rimbink Pato v Tom Manjin SC 622 (1999) and Simon Ketan v Lawyers Statutory Committee N 2290 (2001).

Mr Nii for the applicant submits there is evidence before the Court showing that a decision to suspend the applicant was made by the Minister upon recommendation of the Commission, that the recommendation by the Commission and the Minister's decision are both ultra vires the Constitution, Act and the Regulations, and the applicant should not be subjected to a flawed disciplinary suspension process which might adversely affect his personal and professional integrity and reputation. The Court in the exercise of its inherent discretionary power should intervene to stop the flawed process from taking its course. He submits judicial review is available to correct the flawed disciplinary process.

It is settled principle that judicial review is concerned with the decision-making process. Orders in the nature of prerogative writs such as certiorari, mandamus and prohibition are available to correct a flawed process and grant appropriate relief to a person aggrieved by the decision made by a public authority or a Minister of the State. It is available in cases where, inter alia, the public decision-making authority or Minister exceeds its powers or commits an error or law such as where it fails to follow decision-making procedure prescribed by Statute: Kekedo v Burns Philp (New Guinea) Ltd [1988–89] PNGLR 122. The present applicant has correctly sought certiorari to quash the decisions of the Commission and the Minister.

The two cases cited to me by Mr Henao show a general reluctance by the Court to interfere in the criminal or disciplinary investigative process whilst it is in train. However, those cases can be distinguished from the present case on both facts and principle. In Pato's case, Mr Pato claimed declaratory and injunctive relief to stop police investigations into alleged criminal conduct by Mr Pato. Mr Pato had Constitutional rights guaranteed to him by the Constitution to raise his grievances in a Court if the investigations resulted in criminal charges being laid and prosecuted. He also had a statutory right of appeal if the criminal prosecution were successful. In Ketan's case, Mr Ketan was being investigated by the Lawyers' Statutory Committee on certain disciplinary matters. He had the right to defend the proceedings before the disciplinary body. If the disciplinary body found against him, he had a statutory right of appeal to the National Court against that decision. The Lawyers Act 1986 provided elaborate procedures for the disciplinary process and a statutory right of appeal under the Act. None of these two cases raised issues of ultra vires or breach of procedure prescribed by statute of the respective investigative bodies. Both men are not public officials. Any adverse consequences flowing from the investigations were therefore purely of a personal or private nature.

In the present case, the disciplinary process which has commenced and the repercussions and ramifications it will have on the applicant's personal and professional integrity and the public interests in the public office he holds, are different to the case of Pato and Ketan. First, the applicant is the Principal Legal Adviser to the NEC. He is also the Attorney General of Papua New Guinea and the Secretary of the Department of the Attorney General. His suspension from office will have serious implications and ramifications on his personal and professional standing and integrity, and serious implications and ramifications for the national government, the Department that he heads and his staff.

Secondly, suspension on disciplinary grounds is given considerable importance not only by the Act and the Regulations but most importantly, by the Constitution. The suspension procedure set out in the statutory and Constitutional provisions are fairly extensive and in mandatory terms. The Commission is given a key role in the suspension process. This is necessary to ensure that suspension procedures are strictly followed, and in that process, the politization of the office of the Departmental Head, is minimized. It also ensures that due process of law takes place in effecting the suspension and the public interest and confidence in the high office of Departmental Head is guarded against disciplinary action motivated by purely political and personal considerations.

Thirdly, these statutory and Constitutional provisions treat suspension as the first important step in the disciplinary process and it is treated seriously. It is clear from the scheme of these provisions that a decision to suspend a Departmental Head is a one-off stand-alone decision. These elaborate procedural provisions impose a duty on the Minister to decide, for good cause, whether to refer the matter referred to him by the portfolio Minister, to the Commission. They also impose a duty on the Commission to investigate the matter and decide, for good cause, whether to make a recommendation for suspension to the NEC or the Head of State. Implicit in these procedural provisions is also the duty imposed on the Minister and the Commission to follow the prescribed procedure for making the report or recommendation and do so, correctly. Also implicit in these procedural provisions is that the Departmental Head is assured of due process according to law – that he will be dealt with in accordance with the prescribed procedure in the suspension process and done so fairly. There is no provision in these procedural provisions for a Departmental Head who is aggrieved by a flawed suspension process to seek relief through administrative appeal or review process, in order to protect himself or herself. Therefore, the Departmental Head concerned, such as the applicant, is entitled to seek judicial intervention to protect himself and his office.

Fourthly, the matter of a decision-making authority exceeding its powers given by Statute or the Constitution; or committing an error of law are serious matters. When there is clear evidence placed before the Court to show that a public authority such as a Minister of the State has clearly acted ultra vires or exceeded his power or has failed to follow procedures prescribed by the Constitution or Statute, the Court cannot be expected to sit back and do nothing. The Court must do justice. It must intervene out of necessity and arrest the flawed process from proceeding further to conclusion.

In judicial review, the relief designed for this purpose is an order in the nature of certiorari, mandamus or prohibition. Mandamus and prohibition are both injunctive in nature. Such injunctive relief will stop the flawed process from continuing thereby exposing the Departmental Head to unnecessary embarrassment and damage his professional and person integrity and reputation and at the same time damage the good standing of his office. At common law, an injunctive order in the nature of prohibition or mandamus is available to stop or compel a public authority of official to from assuming or exercising jurisdiction which the public body or official does posses, or even require the public body or official to exercise his discretion in a certain way, on a matter within its jurisdiction. Such relief is available in a process that is still in train, before final decision. Equally so, certiorari is available to quash the decisions before the decision is enforced or implemented. Although the applicant has not sought an order for mandamus or prohibition, an order of certiorari which he has sought serves the same purpose: for example, see R v North Yorkshire C.C; ex p.M [1989] Q.B 411. I do not see any reason why a similar approach should not be adopted in this jurisdiction.

In the present case, I find that the portfolio Minister, that is the Minister for Justice, correctly referred the matter to the Minister for Public Service. I find that the Minister for Public Service correctly referred the matter referred to him by the applicant's portfolio Minister, to the Commission. I also find that the Commission correctly received the matter and deliberated on it and formed an opinion.

But then, I find that the Commission erred in law by acting contrary to s.193 1D of the Constitution, and s.31D of the Public Service Management Act 1986, in making its recommendation for suspension back to the Minister for Public Service, to effect or suspend the applicant. It should have made the recommendation to either the NEC or the Head of State directly. I also find that the Minister for Public Service acted ultra vires s.193 1D of the Constitution and s.31D of the Public Service Management Act 1986 by exercising suspension powers which he did not posses. For these reasons, I am of the opinion that this Court should intervene, grant the application for certiorari and quash these parts of the decisions of the Commission and the Minister.

This leaves me to deal with the question of what should happen to those parts of the decision of the two Ministers and the Commission which I have found to be procedurally correct. If upon a close examination of the whole decision-making process, it can be said that the whole process was coloured or tainted by the invalid parts of the decision, then the whole decision-making process which includes the valid parts, is liable to be quashed. In the present case, there are three aspects of the decision-making process, which concerns me. First, there has been a reluctance by the respondents in disclosing to the Court the letter or report made by the Minister for Justice to the Minister for Public Service. That report is not in evidence. Such report would show if the Minister for Public Service acted, on good cause.

Secondly, under s.2(3) of the Regulation, the Minister for Public Service is required to provide a "written report to establish a prima facie case for suspension." The evidence shows the Minister provided an advanced report to the Commission which not only attached copies of allegations but also formulated charges and Notice of Suspension, leaving the Commission little or no chance to conduct its independent investigations and form an independent judgment on the matter. This is clear from the Minister's letter to the Commission in which the Minister said he referred "this matter to satisfy the requirements of Instrument No. 7 of 2003, Public Services (Management)(Criteria and Heads & Provincial Administrators (1) Regulations 2003. Section 2(3)(a), (b), (c), (d)." It seems from this statement that the Minister was referring the matter to the Commission as a matter of formality and sought its endorsement of his decision to suspend the applicant.

Thirdly, it seems to me that the Commission simply endorsed the Minister's decision without conducting any independent investigations of its own to form an independent opinion as required by the Constitution and the Act. This is evident from the Commission's letter to the Minister dated 13 September 2004 wherein the first paragraph sets out the only matters the Commission considered in reaching its decision. It says the Commission "deliberated on the report and information your (Minister's) office submitted regarding the alleged misconduct by the Attorney General and it is satisfied that a prima facie case exists warranting suspension." There is no reference in this letter to any findings received from its own investigations into the matter.

The Commission's deliberations on the matter and its decision cannot be taken lightly because it is an independent Constitutional office. It is the only office charged by law to carry out initial investigations and make a recommendation on suspension of a Departmental Head. However, there is no evidence before me to show that Commissioner Tetega's decision as per his letter dated 13 September 2004 was in fact the decision of the Commission. Under s.190(2) of the Constitution, the Commission is composed of three (3) Commissioners and one would expect an important decision such as this made under the Constitution, to be made by all three Commissioners. This should be evident on the face of the decision letter. One would expect all three Commissioners to sign the recommendation letter. I understand that Commissioner Tetega is the Chairman of the Commission and he may speak for the Commission on any matter. However, an important Constitutional function such as the present one requires the concerted actions of all three or majority of Commissioners. On the face of the Commission's letter, I am unable to conclude that Commissioner Tetega's recommendation letter was in fact the decision of the whole Commission. For this reason, I am not satisfied that the Commission made a valid determination on the nature of the case before it. I am also not satisfied that the Commission formed a valid recommendation in the circumstances. Therefore, the Commission's decision cannot stand alone and be given effect to, by this Court.

For these reasons, I find that the actions of the Minister for Justice, the referral by the Minister for Public Service and the Commission's deliberations and decision are tainted by the ultra vires actions of the Minister and the Commission. In the circumstances, the whole decision-making process on the applicant's suspension is tainted and flawed. The whole decision-making process should be quashed.

Finally, for avoidance of doubt, I say that the whole disciplinary process commenced by the Minister for Justice and culminating in the suspension by the Minister for Public Service is to be quashed. However, I note that these proceedings are not about the substance or merits of the complaint against the applicant. Therefore, this decision does not preclude the respondents from commencing fresh disciplinary actions against the applicant on the same or some other subject matter but the process must start fresh following the correct procedures outlined in this judgment. As far as the present disciplinary process that has already started is concerned, these will be quashed and declared invalid and void ab initio.

For these reasons, I make the following orders:

1. The applicant is granted an order in the nature of certiorari to bring up the decision of the Minister for Public Service made on 14 September 2004 suspending the applicant from performing the duties of his office as the Attorney General of Papua New Guineas and Secretary of the Department of the Attorney General, to be quashed and the said decision is so quashed.

2. Consequently, the decision of the Public Service Commission to recommend the applicant's suspension, to the Minister for the Public Service made on 13 September 2004, is also quashed.

3. The applicant continue to perform his functions as the Attorney General of Papua New Guinea and the Secretary for the Department of the Attorney General.

4. The second respondent pay the applicant's costs of these proceedings, to be paid on his behalf by the fourth respondent, as the nominal respondent in these proceedings.

5. The entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

Lawyer for the applicant: Harvey Nii Lawyers.
Lawyer for the respondents: Henao Lawyers.