Kalopei v Assistant Commissioner of Police - Coastal-Border Command [2002] PGNC 23; N2342 (22 October 2002)

N2342

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 175 OF 2002

Between:

KU KALOPEI

-Plaintiff-

And:

ASSISTANT COMMISSIONER OF POLICE
– COASTAL/BORDER COMMAND – RAPHAEL HUAFOLO

-1st Defendant-

And:

THE STATE

-2nd Defendant-

LAE: INJIA, J.
2002: October, 22

Administrative law – Police Force Act – Commissioner’s Statutory Power to transfer member to different locality – Delegation of specific power to sub-ordinate officer must be in writing – Onus on sub-ordinate officer claiming to act under delegated authority, to prove the existence of written instrument of delegation – Police Force Act, SS.16, 17, 26(1)(e) & (f); 46 & 48

Counsel:
Plaintiff in person
R. Saranduo for the defendants

22 October, 2002

INJIA, J.: The plaintiff is a policeman based in Lae. He is the Officer in Charge ("OIC") of the Criminal Investigation Division ("CID"). By Originating Summons filed on 8/4/02, the plaintiff is seeking a declaration that the First Defendant’s decision to transfer him as the OIC of CID, Lae to Police Station Commander ("PSC") Minz Police Station and a subsequent decision to transfer him to Banz Police Station, both in the Western Highland Province, is void ab initio and of no effect. He seeks further orders that the said decisions be quashed and that he resume duty as the OIC of CID, Lae.

The plaintiff relies on his affidavit sworn and filed on 8/4/02. The First Defendant contests the application. He has filed an affidavit sworn on 24/6/02.

This matter was argued at length before me on 25/6/02, 28/6/02 and on 1/7/02 and I reserved my decision. Both respective parties in their affidavits set out their versions of the circumstances of the transfer decision and why they say the transfer decision was proper or improper, as the case may be. An important factual issue to be determined is whether it was the First defendant who made the decision to transfer the plaintiff. If I find that the First Defendant made the decision on his own, then the next question is a threshold question. And that is whether the First Defendant had the power to make the said decision. If I find that the First Defendant had the power to make the decision, then the next question is whether the decision was proper or fair in the circumstances. If I find that the First Defendant made the decision but he did not have the power to make that decision, then his decision is ultra vires the Police Force Act and it will be quashed as being void ab initio, in which case it will be unnecessary to consider the question of reasonableness or fairness of the decision.

In relation to the factual issue, the plaintiff says that the first Defendant after taking over the reigns from Assistant Commissioner of Police (ACP) Mr. A. Reu, on 20/2/02 issued a transfer directive that he be transferred to Minz Police Station as its PSC. Later on 28/2/02 after considering the plaintiff’s objection to the proposed transfer, the First Defendant decided to transfer him to Banz. These two directives which are in evidence were signed by the First Defendant and they make no reference to any decision of the Police Commissioner himself or to any specific delegated authority he had from the Commissioner to, inter alia, transfer the plaintiff or any other officers under his command. It is signed by the First Defendant and it appears he was the author of that decision.

The First Defendant says that he was instructed by the Commissioner both verbally and in writing, to deal with bad law and order problems in Lae including the CID Management and its operations. And "after consultation with the previous Metropolitan Commander and my Provincial Staff, necessary divisional transfer directives were issued that also affected the OIC, CID’s position whereby Inspector Kalopei was affected in response to the Commissioner’s directive as referred to in 4 above." (See para 5 of his affidavit). As a result, he issued the two transfer directives. He goes on to say in para I:

"All due processes of officer’s transfers within the Constabulary have been followed, as there was no abuse of such transfer procedures. The Commissioner’s directions for staff changes within the Constabulary override transfer arrangements by the Transfer panel at Police Headquarters."

It is clear to me that in the absence of evidence of any clear instruction from the Police Commissioner himself, authorizing the First Defendant to "transfer" any officer under his command it can be safely inferred that the actual decision to transfer the plaintiff was made by the First Defendant. Of course the directive to "review the CID Management and operations" at Lae Police Station came from the Commissioner but there is no evidence to show that the decision to "transfer" an officer under the First Defendant’s command was specifically contained in that instruction. Therefore, I find that the First Defendant was not specifically empowered or authorized by the Commissioner to transfer members within the division that he commanded, including the plaintiff.

In relation to the legal issue, the question is one of whether the First Defendant had any power, actual or ostensible, to transfer the plaintiff. I am referred by the plaintiff to a Transfer Panel Procedure Directive issued by the then Police Commissioner on 7/5/90, Mr. Ila Geno, which sets out further procedures on transfer issued in PHQ Circular 13/89 which is not before me. But those are administrative directives. The primary source of any such power must come from the Act. I say this because the notion of "transfer" of a member of the police force or any member of the public service for that matter from one locality to another or from one function to another, has practical policy and management implications and welfare consequences for the member concerned. Therefore, the subject of "transfer" is a proper subject for policy-making through legislation and not a purely administrative or operational matter for administrators to determine. Not surprisingly, the subject of transfer is given special consideration in the Police Force Act. The Act prescribes the different situations in which a transfer takes place, the reason for the transfer, the underlying principles of fairness and equity to be observed, the procedure for effecting transfer, and more importantly, it prescribes the authority who is given the power to transfer a "member" for different reasons.

A "transfer" can occur in three situations. First, as a result of a disciplinary process by way of punishment: S.26(1)(e) & (f). Secondly, to fill a vacancy: S.46. Thirdly, for administrative expediency reasons: Division 5 – 5. S.48. The present transfer is an administrative transfer which is governed by S.48. Therefore it is convenient to set out S.48 in full:

"Division 5 – Transfer and Promotions.

"48. Principles to apply to transfers and promotions.

(1) In this section, "transfers" of a member to a position means the appointment of a member to a position in which the member will hold the same rank and be entitled to at least the same level of salary.

(2) A decision to transfer and promote a member to a vacancy in the Royal Constabulary shall be made by fair and equitable procedures that –

• (a) include when possible inviting applications and selection on the basis of the merit of applicants; and
• (b) prevent unjust discrimination, whether in favour of or against a person; and
• (c) allow at all times to the Commissioner the discretion to transfer any member to any location where the exigencies of the Service so require.
  

(3) Where the Commissioner make an order directing the transfer of a member of the Force to other duties not involving a reduction in pay, the member will comply with the order.

(4) Notwithstanding subsection (2), where a decision is made to transfer a member or promote a member under Section 41, the positions of Subsection (2)(a) do not apply.

(5) Notice to a member of a transfer of that member shall be given in writing and allow reasonable time to him to arrange his personal affairs before the permanent date of the transfer takes effect.

(6) For the purposes of this part, merit of a member comprises –

• (a) the integrity of the member to discharge the duties of the position in question; and
• (b) the potential of the member to discharge the duties of the position in question; and
• (c) the industry shown by the member in performance of the duties of office in the course of the member’s career; and
• (d) the physical and mental fitness of the member to perform the duties of the position in question.
  

(7) For the purpose of determining the potential of a member to discharge the duties of a position, the following factors shall be taken into account:--

• (a) the performance of duties of office in the course of the member’s career;
• (b) the range of practical experience of the member in the Force or outside the Force;
• (c) the ability, aptitude, skill, knowledge and experience determined by the Commissioner to be necessary for the proper performance of the duties of the position in question;
• (d) any relevant academic, professional or trade qualifications of the member.
  

(8) In the selection of a member of the Regular Constabulary Branch for promotion, consideration shall be given to the merit of the persons considered for selection and in the event of equality of merit between two or more members, to the relative seniority of such members.

(9) For the purposes of determining merit, the Commissioner may require a member to submit to a psychological assessment to be carried out by a person whom the Commissioner consider to be suitably qualified.

Police Administration Manual Sections 3.510 – 3.550 set out administrative procedures for transferring members consistent with S.48 of the Act.

Section 16 and 17 of the Act are also relevant to the exercise of the power given to the Commissioner by S.48. Section 16 provides:

"(1) Where the Commissioner thinks it for any special reason desirable, the Commissioner may, by written notice, vest in a person, or in members of a class of persons, some or all of the powers, functions, duties and responsibilities of a member of the Force under any law.

(2) A person to whom Subsection (1) applies is deemed, in relation to the powers, functions, duties and responsibilities vested in that person under that subsection, to be a member of the Force."

Section 17 provides:

"Subject to the provisions of this Act in relation to any specific power or function, the Commissioner may delegate in writing all or any of the Commissioner’s powers and functions under this Act (except this power of delegation)."

It is clear in S.48 that the power to transfer a member is vested in the Commissioner. The present transfer which makes a transfer to another locality for other duties did not include reduction in pay. Therefore it comes under S.48(3). The issue is whether the "Commissioner" made the decision for the plaintiff’s transfer. I have already found that the First Defendant and not the Commissioner, made the decision to transfer the plaintiff. The question is whether the First Defendant had a written "delegated authority" under S.17 or vested "power, duty or responsibility" under S.16, to make the decision to transfer the plaintiff.

During argument, Mr. Saranduo was at pains, with very little or no success, to locate any specific written delegation or vesting of authority by the Commissioner to the First Defendant to "transfer" a member under his command. In its place, Mr. Saranduo submitted the decision to transfer the member was an operational matter which the First Defendant either had to make on his own in his capacity as the Assistant Commissioner responsible commanding the Coastal and Border areas, or was made within the ambit of the authority given to him by the Commissioner to review and clean up operational procedures in Lae. In my view, I do not think this is a good argument. An administrative direction from a superior authority to a sub-ordinate authority to make decisions on operational matters cannot take precedence over a legal authority or empowerment to make such decision on transfer of a member. The decision to transfer a member is a specific power given to the Commissioner himself and he must either delegate that power or vest that power to his sub-ordinate by specific written instrument before his sub-ordinate exercises that power. The onus is on the sub-ordinate officer claiming to act under delegated or vested authority to prove that he had such authority. In the totality of the evidence and circumstances before me, I am not satisfied the First Defendant had the written delegated or vested authority to make the decision regarding the transfer of any member of the Force under his command including the plaintiff to either Minz or Banz. For these reasons, I declare the First Defendant’s decision ultra vires S.48 of the Police Force Act. I find that the First Defendant acted unlawfully and I quash the decision. I further order that the plaintiff be re-instated to his old position as the OIC of CID, Lae within 30 days from today. The plaintiff shall have his costs of the proceedings.
____________________________________________________________________
Plaintiff in person
R. Saranduo for the defendant