Aeava v National Executive Council [2001] PGNC 62; N2136 (2 August 2001)

N2136
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

OS 697 OF 1999

BETWEEN:

PHILIP AEAVA

AND:

NATIONAL EXECUTIVE COUNCIL

AND:

THOMAS WAIM

AND:

THE STATE

WAIGANI / MADANG : SAWONG J.
2001 : 14th, 17th May, 2nd August

CONSTITUTIONAL LAW - Head of State - Immunity from judicial review of acts - Head of State - Advise that of National Executive Council - Telecommunications Act 1996, s. 39 (1), (2) - Constitution s. 86 (2).

TELECOMMUNICATION ACT - Appointment of Chief Executive - s. 39 (1) - Suspension of Chief Executive by Head of State - Suspending authority must observe principles of natural justice.

INTERPRETATION ACT - Power to appoint implies power to suspend.

UNDERLYING AND CONSTITUTIONAL LAW -Principles of natural justice.

CONSTITUTIONAL LAW - Harsh and oppressive - Suspension without charges, for long time amounted to harsh and oppressive therefore unlawful.

FACTS:

The Telecommunication Act, 1996, s. 39 (1) provides for the appointment of the Chief Executive of Pangtel by the head of State, acting on advice. Section 39 (1) provides the "Chief Executive of Pangtel .. shall be appointed by notice in the national Gazette by the Head of State, acting in advice, given after considering recommendations by the Minister ..

There is no express statutory power of termination or suspension in the Act. The Interpretation Act, s. 36 (1) provides that "where a statutory provision confers a power to make an appointment, the power includes power ... to remove or suspend a person so appointed."

The Constitution, s. 86 (2) provides that the ... "Head of State shall act only with, and in accordance with the advice of the national Executive Council, or some other body or authority prescribed by a Constitutional Law or an Act of Parliament for a particular purpose ..." and s. 86 (4) provides that "the question, what (if any) advice was given tot he Head of State; or by whom, is non justiciable".

The Chief Executive of Pangtel, was suspended by the head of State acting upon the advice of the NEC.

ISSUES:

1. Whether the actions of the Head State, acting with and in accordance with the advice of the NEC in suspending the Chief Executive of Pangtel was justiciable or not.
   
2. Whether as a matter of law, the actions of Head State, acting with and in accordance of the advice of the NEC in suspending the Chief Executive of Pangtel when no charge have been brought against the Chief Executive, no investigating committee has been established and where the suspension has been for a period of more than one year, were such that, the suspension was harsh and oppressive and therefore unlawful.
   
3. Whether as a matter of law, principle of natural justice should be observed for dismissal or suspension of the Chief Executive.
   

HELD:

1. As the actions of the Head of State, acting with and in accordance with the NEC was in breach of principles of natural justice, his actions were justiciable.
   
2. Where a statute gives a right of suspension expressed or implied, unless there is expressed provision in an Act excluding a right to be heard, that right must be offered to that person.
   
3. The principles of natural justice are part of the underlying law of Papua New Guinea and there is nothing in the Telecommunications Act which excludes the right to be heard.
   

PAPUA NEW GUINEA CASES CITED:

Premdas v. The Independant State of Papua New Guinea [1979] PNGLR 324
Minister for Lands v. Frame [1980] PNGLR 433
Iambakey Okuk v. Fallsheer [1980] PNGLR 274
Raz v. Matune [1985] PNGLR 329
Kila Wari & Seven Ors v. Gabriel Ramoi & Sir Kingsford Dibela [1986] PNGLR 112
Gegeyo v. Minister for Lands and Physical Plnning [1998] PNGLR 336
Leo Nuia v. Benias Sabumei [1992] PNGLR 90

Counsel:

L. MANUA, for the Plaintiff

J. KUMURA, for the First & Third Defendants
G. GARO, for Second Defendant

DECISION

2nd August, 2001

SAWONG J: The plaintiff in this action has commenced proceedings by way of Originating Summons claiming that his purported suspension on the 3rd of November, 1999 by the first and third defendants is unreasonable and unlawful. In the alternative he seeks an order that his purported suspension is unjustified or harsh and oppressive.

The trial of this matter was conducted on affidavit evidence. The plaintiff relied on his own affidavit’s numbering 6. These were his affidavits of 10th November, 1999 and filed on the same date (Exhibit P1), affidavit of the 16th November, 1999 and filed on the same date (Exhibit P2), affidavit sworn and filed on the 17th November, 1999 (Exhibit P3), another affidavit sworn on the 5th December, 1999 and filed on the 6th December, 1999 (Exhibit P4), affidavit of Emmanuel Kairu sworn on the 16th November, 1999 and filed on the 17th November, 1999 (Exhibit P4, 5), and the Plaintiff’s affidavit sworn to the 7th April, 2001 and filed on the 1st May, 2001 (Exhibit P6). Some paragraphs of all these affidavits were objected to and were struck down on various grounds. It is not necessary to state which paragraphs nor the grounds. The amended affidavits were then tendered and accepted into evidence by consent of all parties.

The second defendant’s evidence consisted of the affidavit evidence of Eri Tara sworn on 10th November, 1999, and filed on the 17th November, 1999 (Exhibit D1) and the affidavit of Thomas Waim sworn on the 16th November, 1999 and filed on the 17th November, 1999 (Exhibit D2), the second defendant’s further affidavit sworn and filed on 14th December, 1999 (Exhibit D3) and a further affidavit from Thomas Waim sworn on the 6th February, 2001 and filed on the 14th February, 2001 (Exhibit D4).

The first and third defendants did not call any evidence.

At the conclusion of the hearing of the evidence the court directed that all parties were to file and serve written submissions by close of business on 17th May 2001. I indicated then that I would then attempt to deliver my decision on this matter on the 24th of May, 2001. Unfortunately, I was not able to deliver the decision as I was subsequently engaged in a four (4) day trial.

As a result of the directions given by the court only the plaintiff and the second defendant have filed written submissions. Up till today no submissions have been received from the first and third defendants.

Much of the facts between the parties are really not in dispute. I find that the following facts are not in dispute. On 6th February 1997, the plaintiff was appointed as chief executive of PANGTEL by gazetted instrument of appointment.

On the 23rd September, 1999 Peter Waiang was appointed the minister for Information and Communication. On the same day (24th September, 1999) the minister through his first secretary, Sam Mogia requested PANGTEL to meet their expenses for airfares, clothing, travelling, accommodation, entertainment, allowances of personal nature, for the minister to attend meetings overseas.

On the same day (24th September, 1999) the board of PANGTEL including the plaintiff met and deliberated on the request. The board accepted the request for airfares and purchased the minister’s airline tickets. However, the board rejected the claim for other allowances. There is evidence that the minister then followed this request with a letter to the plaintiff. Upon receiving the letter the plaintiff sought legal advice and the legal advice was that as the funds sought were not for the benefit of PANGTEL as set out in the Act, the claim for those allowances should be refused. The plaintiff then advised the minister that it was unlawful to pay him those allowances.

On the 29th September, 1999 the minister than requested the plaintiff for a motor vehicle and that request was also rejected on basis that it was not able to meet that request.

On the 4th October, 1999 the minister suspended the plaintiff on the basis that there was rampant abuse of power and establish procedures including mismanagement, gross financial abuse, lack of accountability and commenced and investigation.

However, on the 5th October, 1999 the plaintiff instituted court proceedings in OS 608 of 1999 challenging the suspension in that the minister did not have powers to suspend him. Subsequently, the minister conceded that he had no power to suspend the plaintiff. On the 19th October, 1999 the National Court declared the suspension null and void.

On the 9th November, 1999 the plaintiff was served with the National Executive Council’s decision number NG 96 of 1999. The National Executive Council gave the following advice to the Head of State: -

"1. approved and advised the Head of State:-

1.1. to suspend Mr. Philip Aeava as Director General for PANGTEL on his normal terms and conditions, to enable an investigation to be made into alleged management inefficiency and malpractice at PANGTEL;
1.2. to appoint Mr. Thomas Waim as Acting Director General pending the outcome of the investigation and final determination of the matter by Cabinet.

2. directed the heads of the Central Agencies, in consultation with he Attorney General to establish an investigatory committee to look into the report back to the Minister for Communication on the allegations made against the Director General for PANGTEL, within thirty (30) days of this Decision;
3. directed the Minister for Communication to determine whether any disciplinary charges are to be laid and based upon legal advice from the Attorney General, proceed to deal with the matter as though Mr. Aeava had been engaged on a standard Departmental Head contract of employment."
   

Since the decision of the National Executive Council and the directions referred to above no investigation committee has been established and no investigation has been carried out by this duly appointed Central Agencies of the State. Consequently, the plaintiff has remained suspended since he was suspended in November, 1999.

At the same time the plaintiff was suspended, the second defendant was appointed as acting Chief Executive of Pangtel.

On the 18th January, 2001 the plaintiff wrote to the then Minister for Communication, Sir John Kaputin and expressed, amongst other things, his concerns at the delay in the investigations and continuous suspension without any basis and requested the Minister to resolve the matter quickly.

However, the plaintiff did not receive any responses.

Subsequently, on the 5th of March, 2001 the plaintiff sent a further letter to the Minister, John Kamb requesting an advice from the Minister concerning the investigations (if any) and his suspension and requested for an expeditious resolution. The plaintiff has received no response since.

Between the decision of the National Executive Council to the 17th December, 1999 interlocutory proceedings were instituted which dealt with parts of the plaintiff’s claim and which were disposed.

The issues to be resolved are as follows:

1. Whether the Head of State’s, acting upon and with the advise of the NEC decision to suspend the plaintiff is non-justiciable.
2. Whether the plaintiff’s purported suspension on the 3rd November, 1999 by the Head of State is unreasonable and unlawful.
3. In the alternative whether the plaintiff’s purported suspension is unjust, harsh and oppressive under the circumstances.
   

The plaintiff’s claim are based on three grounds.

Firstly, the decision to suspend him was based on irrelevant, irrational and improper reasons and therefore the decision is unreasonable and unlawful.

Secondly, the decision to suspend him is unlawful in that he was denied natural justice. This is based on s 59 of the Constitution.

Finally it is submitted that the decision to suspend him and his subsequent suspension over a long period of time without being charged amount to being harsh and oppressive, and therefore unlawful. This part of the claim is based on s 41 of the Constitution.

I propose to deal with the first and second ground together as I consider these issues are related and connected. I will deal with the third ground separately.

I deal firstly with the issue of jurisdiction, that is whether the advise given by the National Executive Council to the Head of State non justiciable.

Counsel for the plaintiff submitted that the act of the Head of State acting on advice to suspend the plaintiff without giving reasons or failing to give him an opportunity to answer any allegations before suspending him are unlawful and unreasonable. He submitted that the suspension in those circumstances affected the Constitutional rights of the plaintiff and consequently the court has jurisdiction to intervene and protect the rights of the plaintiff. He relies on the authorities of Minister for Lands v Frame [1980] PNGLR 433, Kila Wari & Seven Others v Gabriel Ramoi & Sir Kingsford Dibela [1986] PNGLR 112, Leo Nina v Benias Sabumai & Others [1992] PNGLR 90.

He also relied on ss 82, 86 (4) and Schedule 1.7 of the Constitution.

Mr. Garo, who also relies on the same authorities and Constitutional provisions referred to above submits to the contrary. He in essence submits that the advice given by the National Executive Council to the Head of State are non justiciable, and therefore the court lacks jurisdiction to intervene in this particular case.

In my view the answer to this jurisdictional issue was answered by the Supreme Court in Kila Wari & Ors v Gabriel Ramoi & Sir Kingsford Dibela (supra).

Each of the members of the Court held that where the advise given by the National Executive Council falls outside the power or discretion given to the person or authority by law, that advise would not be protected by s 86 (4) of the Constitution. Kidu CJ (as he then was) said at p.115:

"I consider that it is because the Head of State cannot act otherwise than on advice of the National Executive Council or a body prescribed by law that s 86(4) of the Constitution ensures that whatever advice the Head of State is given and by whom is non-justiciable:

"The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable."

This means of course that no Court has jurisdiction to look into questions relating to the advice given to the Head of State (see Sch 1.7 of the Constitution and The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, per Frost CJ at 499, and per Saldanha J at 504). This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v Frame (at 477) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged:" (my emphasis)

Deputy Chief Justice Kapi expressed similar views. He said at p. 118 - 119:

"What is the extent of this protection? As I have pointed out, where advice is given to the head of State within the discretion given by law, that advice is non-justiciable. Where the advice falls outside the power or discretion given to the person or authority by the law, that advice is not protected by s 86(4) of the Constitution. This raises the question of the person or authority which is acting ultra vires the power given to it by the law. On this point, I am in agreement with Pratt J in The Minister for Lands v Frame. In fact at 458 to 459, I dealt with the question whether or not the determination of the prescribed factor was outside the powers given to the Head of State under the provisions of the Lands Acquisition Act. Similarly, where there is an inconsistency of an act of the Governor-General under an Act or regulation with a provision of the Constitution, that act cannot be protected by s 86(4) of the Constitution. This again is a separate question and I dealt with this issue in The Minister for Lands v Frame AT 470-473. In that case, I concluded that the provisions in the Constitution relating to "just terms" were not applicable to Mr Frame as he was a naturalised citizen and his rights fell to be considered within the first five years of Independence. See s 68(4) of the Constitution.

Therefore, s 86(4) protects any advice which is given within the discretion permitted by an Act but does not protect,

(a) any advice which is either inconsistent with the provisions of an Act or is ultra vires the Act; and
(b) does not protect any act of the Head of State which is inconsistent with any provision of the Constitution...." (my emphasis)

Amet J (as he then was) also expressed a similar opinion. He said at p.122:

"The Constitution, s 86(4), was raised in argument in relation to the issue whether to challenge the validity of the decision or action of the Head of State, acting upon advice, was to question an advice or challenge the validity of that advice given to the Head of State. This is, of course, precluded by s 86(4). A conclusive opinion on the issue is not necessary for the disposition of this appeal and so I do not attempt to do that. I too consider that to challenge the legality, validity or indeed the constitutionality of the final act or decision of the Head of State acting upon advice is not to question the advice, if any, given to the Head of State. Whatever the advice might have been, is not the issue, it is the end result of that which is challenged. As an example, whatever the advice might be, if the action or decision oft he Head of State is clearly unconstitutional, I do not think it can be argued that that decision cannot be challenged as being unconstitutional. Such a challenge is not concerned with what advice, if any, or the contents of such advice, but the fact that the decision ipso facto is unconstitutional." (my emphasis)

I would adopt and apply these principles in this case.

It is clear that where the advice is ultra vires or unconstitutional this court has jurisdiction to intervene. In so far as this case is concerned, I think the starting point in resolving this issue is to look at the relevant provisions of the enabling statute, being the provisions of the Telecommunications Act 1996 (the Act). I consider that, that is the appropriate starting point because the office of the Chief Executive of PANGTEL is created by that Act. More importantly, the power of appointment of the Chief Executive of PANGTEL is provided for by the provisions of that Act.

Section 20 of the Act establishes the Papua New Guinea telecommunication authority as a co-operate entity to be known as PANGTEL. The functions and powers of PANGTEL are set out in s 32 and 33 of the Act.

The office of the Chief Executive of PANGTEL is established under s 39 of the Act. It reads:

"39. CHIEF EXECUTIVE.

(1) There shall be a Chief Executive of PANGTEL who -

• (a) Shall be appointed by notice in the National Gazette by the Head of State, acting on advice, given after considering recommendations by the Minister; and
• (b) Shall be appointed for a term not less than three (3) years and not exceeding five (5) years and is eligible for re-appointment; and
• (c) Shall be known by such designation as PANGTEL may determine; and
• (d) Shall be head of the staff of PANGTEL.

(2) The terms and conditions of appointment and services of the Chief Executive are as determined by the National Executive Council after consideration of recommendation by the Minister."

I would interpret this provision in the following way. First, under s 39 (1) (a) of the Act, the relevant Minister makes recommendations to the National Executive Council, which in turn advises the Head of State after considering the recommendations, on the appointment of the Chief Executive.

The appointment is to be made by instrument and published in the National Gazette.

Under s 39 (2) the terms and conditions and services of the Chief Executive are to be determined by the National Executive Council after considering recommendations from the relevant Minister. In other words, in respect of terms and conditions of employment, such as salaries etc, the relevant Minister makes recommendations to the National Executive Council. The National Executive Council then determines the appropriate terms and conditions of service. This does not involve the Head of State.

There is no express statutory power under s 39 of the Act, for the Minister to recommend to the National Executive Council to advice the Head of State to either terminate the appointment of or suspend the Chief Executive. However, such a power may be found by reference to s 36 of the Interpretation Act. It reads:

"36. IMPLIED POWER TO REMOVE OR SUSPEND

(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.
(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject."

Thus by operation of s 36 (1) of the Interpretation Act, the power to appoint includes the corresponding power to remove or suspend a person so appointed. However this general power is qualified by s 36 (2). This provides that the power so provided "is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject".

Thus, in respect of termination or suspension of the Chief Executive is concerned, the relevant Minister must make the necessary and appropriate recommendation to the National Executive council. In other words the relevant Minister must make recommendation to the National Executive Council to either terminate or suspend the Chief Executive. The National Executive Council in turn, after considering the recommendations, advises the Head of State to either terminate or suspend the services of the Chief Executive.

There is no doubt that the National Executive Council has the power to give proper advice to the head of State to terminate or suspend the services of the Chief Executive. However, that advice must not be inconsistent with the provisions of an Act or is ultra vires the Act. Equally important is that the advice must not be inconsistent with any provisions of the Constitution.

I now turn to each of the grounds of the plaintiff’s claim.

DENIAL OF NATURAL JUSTICE

It is plain, and it is not disputed, that the plaintiff was not given any opportunity to answer any allegations prior to his suspension. The second defendant’s counsel submitted that there is no requirement for natural justice and there was no requirement for reasons to be given to the plaintiff.

Counsel for the second defendant argues that there are no statutory basis under the Act for the principles of natural justice to be accorded to the plaintiff. He submits that the plaintiff’s services have not been terminated - he has only been suspended.

Section 59 of the Constitution provides that:

"59. PRINCIPLES OF NATURAL JUSTICE.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."

Both the national court and the Supreme Court have consistently held that whilst a statue, either expressly or impliedly gives a right to dismiss or suspend a particular office holder, unless that statue expressly exclude a right to be heard, that right must be afforded to that person. See Iambakey Okuk v Fallsheer [1980] PNGLR 274, Leo Nuia v Benias Sabumai [1992] PNGLR 90.

I consider the submissions by counsel for the second defendant to be without any merit at all. There is more than ample judicial authority in Papua New Guinea which go against this submission. The cases say that unless there is an express provision in an Act excluding a right to be heard, that right must be afforded. See Iambakey Okuk v Fallscheer, Leo Nuia v Benias Sabumai (supra).

As Amet J in Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR at 336 said:

"In the circumstances of this case it is my strong view, that if any administrative decision will or may affect the reputation, integrity or standing in the community of persons holding public office then the minimum requirement of fairness must be afforded that person or persons. I consider that that minimum requirement should be to give advice or notice in writing of the reasons for a decision proposed to be taken which will affect the status of such a person. And if that reason is likely to case negative aspersions on the character, integrity or reputation of that person, then I consider that an opportunity should be given to that person to be heard before such a reason or reasons are relied upon as the basis for that decision.

In this case, I note, that at the time of the making of the decision to revoke the appointments of the four plaintiffs no reasons were forwarded or advised to the four plaintiffs. There has been no correspondence or advice produced in evidence to show that there was indeed some advice given to the Minister to enable or to cause him to take the decision he did. And so in the words of Lord Denning:

"If it gives no good reasons - in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly"."

In the present case there are no express provisions in the Act excluding that right. The plaintiff was therefore entitled to be afforded that right. Given the background of the plaintiff and given the whole of the circumstances under which he was suspended, the plaintiff’s suspension was most unfair. The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly - s 59 (2) of the Constitution.

The plaintiff was entitled to the right to be heard. However, he was denied this right. He is therefore entitled to come to this court to challenge the decision to suspend him. In summary only the Head of State acting on advice has the power to appoint the Chief Executive of Pangtel. Conversely only the head of State has power to dismiss or suspend the Chief Executive of Pangtel, but in either case the Head of State must exercise those powers according to law. The law may be a Constitutional Law, a statute or an underlying law adopted under Schedule 2 of the Constitution.

For these reasons I find that the plaintiff’s suspension was unlawful. If I am wrong on this point, I go to the next ground, that is that the suspension was unlawful as it was in all the circumstances harsh and oppressive.

HARSH AND OPPRESSIVE

The plaintiff’s next submission is that he was suspended without any charges being made against him and this amounts to being harsh and oppressive. Further he submitted there has been long delay in setting up an investigating committee to conduct investigation into the allegations levelled against him. This affects his reputation and integrity. It was submitted that in these circumstances, the suspension though valid is nevertheless harsh and oppressive and therefore unlawful. This part of ground is based on s 41 of the Constitution.

Mr Garo has not made any specific submission on this ground.

This provision was considered by the Supreme Court in Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329 and subsequently in Raz v Matane [1985] PNGLR 329. In the Supreme Court in Raz’s case confirmed a right of enquiry in the National Court, based on s. 41 of the Constitution. In that case, Kidu CJ said at 330:

"There is, in my opinion, no doubt that s. 41 of the Constitution confers a right - the right to challenge an act done under a valid law."

And his honour went on and said at 332:

"Section 41 creates a right but does not directly prohibit or restrict an act nor does it directly impose a duty. But in my view it does indirectly prohibit or restrict an act and also indirectly imposes a duty. A person is empowered to do an act under a valid law is restricted or prohibited indirectly by s. 41 from acting harshly or oppressively."

Kapi DCJ expressed it differently at 336:

"The provision (s.41) deals with acts that are empowered to be done or allowed to be done by a valid law. The provision sets out the circumstances, (s.41(a),(b)or (c)), under which such acts maybe held unlawful or invalid. The whole thrust of the provision is directed at these actions... . However, any person aggrieved by acts which are prohibited by s.41 (a), (b) or (c), may seek judicial remedy in terms of the provision."

The onus is on the applicant relying on s. 41 to prove on the balance of probabilities any of the circumstances set out therein.

It is clear from the authorities that I have referred to above, that the provision (s. 41) attacks acts which are otherwise lawful. It is not concerned with procedural fairness but with the resultant effect.

In the present case, the plaintiff was suspended on 3rd November 1999. No charges have been brought against him. No committee as provided for in the National Executive Council’s decision has been established to investigate any allegations. The plaintiff has been suspended for approximately one year and eight months. Despite him writing to two ministers, no action of any kind has been taken to deal with his suspension.

In these circumstances, I am satisfied that while the suspension maybe lawful, it is nevertheless harsh and oppressive and therefore unlawful.

I make the following orders.

1. I declare that the plaintiff has not been validly suspended; and
2. I declare that the purported suspension by the First Defendant, the National Executive Council, and or the Head of State acting on advice of the first Defendant, is unlawful, null and void and of no effect.
3. I declare that the Second Defendant was not validly appointed.
4. I declare that the plaintiff is the Chief Executive of Pangtel.
   

I award costs to the plaintiff.
_______________________________________________________________________
LAWYERS FOR THE PLAINTIFF : HARRICKNEN LAWYERS
LAWYERS FOR THE 2ND DEFENDANT : P. PARAKA LAWYERS
LAWYERS FOR THE 3RD DEFENDANTS : SOLICITOR GENERAL