Dataona and Tohian v Makis [1998] PGNC 125; N1797 (17 December 1998)

Unreported National Court Decisions

N1797

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 492 OF 1998
LIMA DATAONA - FIRST PLAINTIFF
PAUL TOHIAN - SECOND PLAINTIFF
V
MOSES MAKIS - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT

Waigani

Woods J
19 November 1998
17 December 1998

STATE SERVICES - Provincial Government - Appointment and termination of Provincial Administrator - in the interests of the State - requirement for consultation

Counsel

D Steven for the Plaintiffs

J Kawi for the Defendants

17 December 1998

WOODS J: The First Plaintiff has been the Provincial Administrator of the New Ireland Provincial Administration since October 1995. Although the actual written Employment contract under the Public Services (Management) Act 1995 was only executed by the State on 2nd July 1998 yet it expressly provided that the contract was effective from 26th October 1995. However on 30 July 1998, only 4 weeks after the State had executed and thus endorsed the original contract, the National Executive Council purported to terminate the First Plaintiff as Provincial Administrator and some weeks later appointed the First Defendant as the Acting Administrator. The Plaintiffs sought leave for Judicial Review of the actions of the National Executive Council and Leave for Judicial Review was granted on 18 September 1998.

The first issue is whether the actions of the National Executive Council to terminate the Plaintiff’s contract of employment is a proper subject for judicial review being a matter of public law or is it merely a matter of private law and matters under the contract of employment. Are the relations between the plaintiff and the State merely a matter of contract.

It is submitted that the plaintiff’s position being a matter of an appointment under an Organic Law governed by procedures for consultation under the Organic Law and where it is claimed that such consultation has not been effected, then any actions against the plaintiff must be a matter of public law and open to judicial review of the relevant public bodies. Of course it would always be open to the plaintiff to take any private law remedies under the contract however in this case the plaintiff has opted for the public law action.

The Office of Administrator is established under the Organic Law on Provincial and Local-Level Government 1997 Section 73:

73(2) The National ExecuCouncil

(a) &##160;; after cter considensidering a list comprising the names of three persons submitted by the provincial Executive Council concerned; and

(b)҈&ـ afte after consultation with the Public Servicervices Coes Commission shall be notice in the national Gazette, appoint from the list submitted under paragraph (a) the Provincial Administrator.

And by 73 (5) An Act of Parliament shall make provisions for the selection criteria and procedure for appointment and acting appointment and for the terms and conditions of employment of such Provincial Administrators. And this Act is the Public Services (Management)Act. And as noted above a Contract of Employment was executed by the Plaintiff and the State in July 1998 to be effective from October 1995.

It is clear that the appointment, and by virtue of Constitution Schedule 1.10(5) the power to revoke, can only be exercised under the same conditions or subject to the same conditions which are applicable in making the appointment. So of course the termination of a Provincial Administrator must therefore involve the appropriate consultation with the relevant parties, and as noted in Section 73, with the Provincial Executive. Consultation means meaningful interchange and consideration of views as defined under the Constitution Section 255, and here see the case PSC V NEC [1994] PNGLR 60i>

So there must be meaningful consultation with the Provincial Executive. It must also be noted that under the Organic Law each Provincial Administrator is subject to the directio control of the Provincial cial Governor subject to the policy of the NEC as reflected in the Public Service General Orders, and his or her contract of employment.

In this case the evidence is clear that the decision to revoke the appointment of the First Plaintiff was done without any consultation with the Governor for New Ireland and the Provincial Executive Council. The Governor himself has joined with the Administrator in this application for Review. The Governor himself has stated that he has not been consulted about the decision to revoke the appointment, nor has recommended the revocation of the appointment. Further he states that it is not in the best interests of the Province that the appointment be revoked.

It would appear that the National Executive Council has made up its own mind to terminate the plaintiff and has deemed it unnecessary to consult. The NEC somehow seemed to consider that a letter written by the Governor in August 1997 was sufficient authority from the Governor for the action of the NEC. However any person with any reasonable experience of senior administration and the responsibilities of Governors and Administrators would see that letter as a normal constructive criticism of a senior official, however the person advising the NEC obviously had very little experience and has clearly misled the NEC into acting contrary to the Constitutional laws. The Organic law requires consultation, and even commonsense would require consultation. Anyone who saw that letter as consultation must have been dreaming. The Constitution is clear what consultation means. There is no room for the NEC to act arbitrarily. The NEC can only act under its powers under the Constitution and law. And where it fails to follow the requirements of the law whether the Organic law or the general law then it is open to an appropriate legal challenge or review. In such a case as this where the status of a senior Public Official is concerned and where the appropriate consultation with public authorities is required then any action is clearly of a public law nature. It is therefore open to judicial review.

I must note that what makes the action of the NEC in July 1998 to consider the termination of the First Plaintiff appear downright nonsensical is that they appeared to base it on a letter dated August 1997, a year earlier, and yet only a couple of weeks earlier on 2nd July 1998 the NEC had advised the Governor-General to execute the Plaintiff’s Contract of Employment. It almost appears an insult to the office of the Governor-General to advise him to act one way in the interests of the State whilst at the same time considering action the complete opposite again supposedly in the best interests of the State. Whilst there is a clause in the contract of employment which allows for termination ‘in the interest of the State’ and the State relies on that clause for its action such must be read in the wider context of consultation with the relevant public bodies and in particular with the Provincial Governor and Executive, such a clause does not give the NEC arbitrary power without appropriate consultation. Such an exercise of arbitrary power can only lead to greater instability and chaos. I need only refer again to the fact that it was only 4 weeks earlier that the NEC recommended that the Contract of Employment be executed by the Head of State, this clearly suggests some chaotic thinking which it must be the duty of this Court to correct. I make no comment on the relevance of some secret unsigned and apparently anonymous confidential document of June 1998 from the Public Services Commission headed ‘Preliminary Report on the Status of the New Ireland Provincial and Kavieng District Administration’ and which resulted from an apparent secret trip of 1 week in May 1998 other than to suggest that it breaches all the principles of open government and consultation that our Constitution requires. Such action should perhaps be the subject of a referral to the Ombudsman Commission.

I am satisfied that the NEC has clearly failed to act in accordance with its powers and responsibilities under the relevant Organic laws and guided by the relevant principles embodied in the Constitution and has therefore acted without power and is subject to judicial review.

I therefore remove the decision of the NEC made on the 29th July 1998 to terminate the first plaintiff and the appointment made on the 2nd September 1998 to appoint the First Defendant as the Acting Administrator to this court and I quash those decisions.