N5511

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 889 OF 2006

COMMODORE PETER ILAU
Plaintiff

V

THE RIGHT HONOURABLE SIR MICHAEL SOMARE,
PRIME MINISTER AND CHAIRMAN,
NATIONAL EXECUTIVE COUNCIL
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2007: 20, 12 January

ADMINISTRATIVE LAW – judicial review of decision of National Executive Council to advise Governor-General to suspend Commander of Defence Force – Constitution, Section 193 (appointments to certain offices) – Defence Act, Section 6 (Commander of the Defence Force)

PRACTICE AND PROCEDURE – applications for judicial review – National Court Rules, Order 16, Rule 6 (statements and affidavits): no grounds to be relied upon or relief sought at hearing except grounds and relief set out in originating statement – need for flexibility in application of Rules of Court – Rules to be interpreted and applied so as to dispense justice.

ADMINISTRATIVE LAW – judicial review – whether decision to suspend Commander of Defence Force must be preceded by consultation with Public Services Commission – natural justice – whether Commander entitled to right to be heard on question of suspension – whether Commander entitled to reasons for suspension.

EVIDENCE – evidentiary value of statement published in National Gazette – whether any presumption arises on publication as to truth of statement – Evidence Act, Section 52 (gazettes); Section 53 (printing by government printer) – use of affidavits in judicial review proceedings – whether author of document required to give oral evidence as to truth of statement in document.

ADMINISTRATIVE LAW – judicial review – remedies – whether National Court has discretion to grant remedies other than those specifically sought by applicant for judicial review. 

The plaintiff is the Commander of the Defence Force. The Governor-General, acting on the advice of the National Executive Council, suspended him. He sought judicial review of his suspension on two grounds: failure to consult the Public Services Commission and breach of the principles of natural justice. 

Held:

(1)	A decision to suspend the Commander is subject to the same conditions as the decision to appoint the Commander: the Governor-General makes the decision, acting with and in accordance with the advice of the National Executive Council given after consultation with the Public Services Commission. 

(2)	Suspension of a person holding an office established by the Constitution is a significant decision, having an immediate impact on the standing and reputation of the office-holder and the office itself. The principles of natural justice or procedural fairness require that the office-holder be given a right to be heard as to any allegations against the office-holder and the need for the office-holder to be suspended.

(3)	Natural justice also requires that the office-holder be given reasons for the suspension.

(4)	In hearing applications for judicial review the National Court is bound to apply the rules of court and rules of evidence with the degree of flexibility necessary to avoid substantial prejudice to any of the parties and to give paramount consideration to the interests of justice.

(5)	In the present case, the NEC did not consult with the PSC before the plaintiff was suspended; the plaintiff was neither afforded a right to be heard nor given reasons for his suspension. Three discrete errors of law were made.

(6)	Remedies in judicial review proceedings are at the discretion of the court and in the circumstances the court quashed the suspension of the plaintiff and made other consequential orders and declarations calculated to bring certainty to discharge of the powers, functions, duties and responsibilities of the Commander of the Defence Force. 

Cases cited

The following cases are cited in the judgment:

Benson Gegeyo and Others v Minister for Lands and Physical Planning [1987] PNGLR 336
Bill Eichorn v Robert Ninikin, Joe Yanz and the East Sepik Provincial Assembly [1988-89] PNGLR 222
David S Nelson v Patrick Pruaitch (2003) N2440
Francis Damem v Mark Maipakai (2005) N2730
Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659
Ila Geno, Paul Lawton and Florien Mambu v The State [1993] PNGLR 22
Joe Ponau v Teaching Service Commission Disciplinary Committee (2006) N3059
Leo Nuia v Benias Sabumei and Others [1992] PNGLR 90
Michael Anis Winmarang v David Ericho and The State (2006) N3040
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Niggints v Tokam [1993] PNGLR 66
Ombudsman Commission v Peter Yama (2004) SC747
Phillip Aeava v The State (2001) N2136
Public Services Commission v The State [1994] PNGLR 603
Wena v Tokam (1997) N1570
Yawip v Commissioner of Police [1995] PNGLR 93

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his suspension as commander of the Defence Force.

Counsel

F Griffin, for the plaintiff
D Lambu, for the defendants

12th January, 2007 

1. CANNINGS J: The plaintiff, Commodore Peter Ilau, is the Commander of the Papua New Guinea Defence Force. He was recently suspended and seeks judicial review of his suspension. He argues that proper procedures were not followed and he was denied natural justice. This case raises important issues about what laws have to be followed by the government of the day if it wants to suspend a person from duty as the head of a disciplined force and what protection the holders of such offices have against suspension or revocation of their appointments. 

2. The plaintiff was appointed Commander of the Defence Force on 12 October 2001. He was re-appointed for a four-year term on 15 October 2005. The National Executive Council considered various aspects of the plaintiff's official conduct from 8 to 11 November 2006. It decided he should be suspended after receiving a report that apparently implicated him in the use of a Defence Force aircraft to fly an Australian citizen, Mr Julian Moti, from PNG to Solomon Islands in early October 2006. Mr Moti, the Solomon Islands Attorney-General, had been arrested, detained and granted bail in PNG. It was alleged he had left PNG unlawfully and that the plaintiff was involved. The NEC took the view that the plaintiff should be suspended pending the outcome of a Defence Board of Inquiry established under the Defence Act. Records of the NEC meetings brought into evidence show that the NEC was also concerned that the plaintiff had made improper public statements on some issues and travelled to Australia in October 2006 without authority. 

3. On 13 November 2006 the first defendant, the Prime Minister and Chairman of the NEC, signed an instrument of advice to the Governor-General. The advice was to suspend the plaintiff as Commander and appoint Colonel Francis Agwi as Acting Commander. On 14 November 2006 the Governor-General signed the following instrument, published that day in National Gazette No G206:

SUSPENSION OF APPOINTMENT AND APPOINTMENT OF ACTING COMMANDER OF THE PAPUA NEW GUINEA DEFENCE FORCE

I, Grand Chief Sir Paulias Matane, GCL, GCMG, KStJ, Governor-General, by virtue of the powers considered by Section 193(3) of the Constitution and Section 6(2) of the Defence Act 1974 and all other powers me enabling, acting with and in accordance with the advice of the National Executive Council, given after consultation with the Public Services Commission, hereby:

(a)	suspend the appointment of Commodore Peter Ilau as Commander of the Papua New Guinea Defence Force; and

(b)	appoint Colonel Francis Agwi to be Acting Commander of the Papua New Guinea Defence Force,

with effect on and from 11th November 2006.

Dated this 14th day of November 2006.

PAULIAS MATANE
Governor-General 

4. The Secretary to the National Executive Council, Ms Winnie Kiap, notified the plaintiff of his suspension by a letter dated 14 November 2006. She attached copies of various NEC decisions pertaining to the matter and a copy of the notice in the National Gazette. 

5. On 1 December 2006 the plaintiff filed an application for leave and on 13 December 2006 Hinchliffe J granted leave for judicial review. The matter is now before the court for substantive judicial review. 

GROUNDS OF REVIEW AND RELIEF SOUGHT

6. The plaintiff relies on two grounds of review:

•	ground No 1: failure to consult the Public Services Commission; and 
•	ground No 2: breach of the principles of natural justice, in two respects: (a) failure to give a right to be heard; and (b) failure to give reasons for suspension.

7. He wants the court to:

•	quash the NEC decision to advise the Governor-General to suspend him;
•	quash the Governor-General's decision to suspend him;
•	quash the appointment of the Acting Commander; and 
•	order that he be reinstated. 

RELEVANT LAW

8. A decision to suspend the Commander of the Defence Force is governed, directly, by three laws:

•	Constitution, Section 193;
•	Constitution, Schedule 1.10;
•	Defence Act, Section 6.

9. Section 193 (appointments to certain offices) of the Constitution states:

(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; and
(b)	the offices of the members of the Boundaries Commission; and
(c)	the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d)	the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and
(e)	the office of Commissioner of Police; and
(f)	the office of Commander of the Defence Force; and
(g)	the office of Secretary to the National Executive Council; and
(h)	such other offices and positions as are prescribed by an Act of the Parliament for the purpose,

other than the offices of the members of the Public Services Commission.

(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.

(1B)	All temporary appointments to offices to which Subsection (1)(a), (g) or (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council in accordance with a recommendation 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.

(2)	All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.

(3)	All appointments (whether temporary or substantive) to which Subsection (1)(d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.

(4)	An Act of the Parliament may make provision for and in respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2).
10. Schedule 1.10 (exercise and performance of powers and duties) of the Constitution states:

(1)	Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.

(2)	Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.

(3)	Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.

(4)	Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.

(5)	The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.

11. Section 6 (Commander of the Defence Force) of the Defence Act states:

(1)	An office of Commander of the Defence Force is hereby established.

(2)	The Commander of the Defence Force—

(a)	shall be appointed in accordance with Section 193 (appointments to certain offices) of the Constitution; and

(b)	may be suspended or dismissed at any time by the Head of State, acting on advice, by notice in the National Gazette.

(3)	The terms and conditions of appointment of the Commander of the Defence Force are as determined by the Head of State, acting on advice, and, except where the contrary intention appears, Part VII does not apply to or in relation to the Commander.

PLAINTIFF'S SUBMISSIONS 

12. On ground No 1, Mr Griffin, for the plaintiff, submitted that the NEC was obliged to consult with the PSC before making a decision on suspension of the Commander. This is due to the combined effect of Section 193(3) and Schedule 1.10(4) and (5) of the Constitution. He conceded that the provisions he relied on during the course of his oral submissions were different to those set out in the original statement relied on to obtain leave for judicial review. But the substance of the ground of review was the same, he submitted. He argued that there was no involvement at all by the PSC prior to the decision being made to suspend the Commander. This was clear from a letter to the plaintiff's lawyers by the Acting Chairman of the PSC, Mr Tau Liu, dated 30 November 2006; which was in evidence as an annexure to the plaintiff's affidavit of 1 December 2006.

13. As to ground No 2, Mr Griffin highlighted the serious and substantial nature of the decision to suspend the Commander, which has an immediate effect on the person holding that high office. The NEC's duty to accord natural justice to the Commander also applied after the suspension was effected; and this duty entails giving the Commander reasons for his suspension. No reasons were given in this case, Mr Griffin argued.

14. As to remedies, Mr Griffin submitted that the NEC decision to advise the Governor-General to suspend the plaintiff should be quashed and that the court should make other orders which would see the plaintiff immediately reinstated and the Acting Commander's appointment revoked.

DEFENDANTS' SUBMISSIONS

15. Mr Lambu, for the defendants, objected to the court entertaining ground No 1 as the plaintiff was relying on a different ground to that set out in his originating statement. Leave for review was granted on the basis that the plaintiff was arguing a breach of Section 193(1A) of the Constitution and Section 31D of the Public Services (Management) Act. Now, he has switched the provisions around without notice. He now relies on Section 193 and Schedule 1.10 of the Constitution. In the event that the court dismisses the defendants' objection, Mr Lambu conceded that the NEC was obliged to consult the PSC but argued that, in fact, there had been consultation and that the plaintiff had failed to prove the facts to support this part of his case. The instrument signed by the Governor-General on 14 November 2006 stated clearly that the advice of the National Executive Council was given "after consultation with the Public Services Commission". That statement was published in the National Gazette. Under Sections 52 and 53 of the Evidence Act its publication became evidence of its truth. The letter from Mr Liu that was annexed to the plaintiff's affidavit was not properly before the court as 16. Mr Liu had not given oral testimony. Furthermore, Mr Lambu highlighted that Mr Liu's letter stated:

This letter is to confirm that the Commission was not consulted on his suspension from office as required under Section 31D of the Public Services (Management) Act. 

17. The letter did not state that there was no consultation under Section 193(3) and Schedule 1.10 of the Constitution. So, if it were regarded as an authentic document, it carried the issue of fact no further. The court should therefore conclude that there was consultation with the PSC and the first ground of review should be struck out, Mr Lambu submitted.

18. As to ground No 2, Mr Lambu emphasised that the plaintiff's livelihood was not prejudiced by his suspension. He is on full pay and does not necessarily have to face charges or answer any allegations of misconduct. If it were proposed to dismiss him, natural justice would probably require that he be given a right to be heard. But this is a very different scenario. The NEC had made its decision in good faith, in the national interest, in light of the Defence Board of Inquiry, the proceedings of which might be compromised if the Commander of the Defence Force – the person responsible for running the Defence Force at the time of the movement of Mr Moti to Solomon Islands – was still in charge of the Defence Force while the Inquiry was running. Mr Lambu referred to the constitutional basis of the principles of natural justice, in Section 59 (principles of natural justice), which states:

(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.

19. It could not be said that the NEC had acted unfairly or unreasonably. Maybe if the plaintiff had been suspended without pay he would have cause to complain. But his interests had been well catered for and it was unnecessary for him to be given a right to be heard. As to whether the Commander had a right to reasons, Mr Lambu conceded that he did and submitted that, in fact, he was given the reasons for his suspension by the Secretary to the NEC, Ms Kiap, on 14 November 2006. The reasons for the suspension were well known to the plaintiff, Mr Lambu submitted.

20. On the question of remedies, Mr Lambu submitted that in the event that one or more of the grounds of review is upheld, the court should not grant any remedies other than those expressly asked for in the plaintiff's originating statement. As with Mr Griffin's departure from the statement in the course of submissions on the first ground of review, Mr Lambu submitted that the court should take a strict approach to the 'pleadings'. Otherwise the defendants would be prejudiced. Mr Lambu pointed out that the acting Commander, Colonel Agwi, was not joined as a party, yet the plaintiff is now seeking to get his acting appointment revoked.

APPLICATION TO AMEND ORIGINATING STATEMENT

21. Mr Griffin made an application to amend the grounds sought in the originating statement, to accommodate the objections Mr Lambu took to ground No 1. But he did not make the application until his reply to Mr Lambu's submissions. Not surprisingly, Mr Lambu objected to the application, coming very late in the day like that. 

22. I upheld Mr Lambu's objection, refused Mr Griffin's application and indicated that I would decide whether to entertain the first ground of review when giving judgment. It is the first issue to resolve, as shown below.

MAIN ISSUES

23. There are six sets of issues to resolve:

1	The first is the issue of practice and procedure raised by Mr Lambu's objection to ground No 1: is it properly before the court?

2	If the first issue is decided against the defendants, I will need to address the contentious issue of fact: was the PSC, in fact, consulted?

3	If the PSC was not consulted, the issue of law raised by ground No 1 must be resolved: was consultation with the PSC necessary and, if yes, is the first ground of review upheld?

4	As to ground No 2(a) (re natural justice): did the plaintiff have a right to be heard before being suspended?

5	As to ground No 2(b) (also re natural justice): did the plaintiff have to be given reasons for his suspension? And was he, in fact, given adequate reasons?

6	Finally, if one or more ground of review is upheld, what remedies, if any, should the court grant? Should the remedies be confined to those expressly sought by the plaintiff?

FIRST ISSUE: IS GROUND NO 1 (RE CONSULTATION WITH THE PSC) PROPERLY BEFORE THE COURT?

24. A person seeking judicial review must first seek the leave of the court to do so. This is done under Order 16 of the National Court Rules. A statement (often called 'the originating statement) must be filed under Order 16, Rule 3(2)(a). It must set out:

•	the name and description of the applicant, ie the plaintiff;
•	the relief sought; and
•	the grounds on which the relief is sought.

25. If leave is granted, the case proceeds to a substantive judicial review and the hearing of the review is subject to Order 16, Rule 6 (statements and affidavits), which states:

(1)	Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement. [Emphasis added.]

(2)	The Court may on the hearing of the notice of motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3)	Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.

(4)	Each party to the application must supply to every other party on demand and on payment of the proper charges copies of every affidavit which he proposes to use at the hearing, including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3.

26. Mr Lambu's objection to the court hearing ground No 1 is based on the highlighted bit of Rule 6(1):

no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.

27. He points out that in the originating statement there was no mention of the provisions the plaintiff relies on now, to argue that there was an error of law by virtue of the failure of the NEC to consult the PSC. The provisions relied on now are Section 193(3) and Schedule 1.10 of the Constitution. In the originating statement, the provisions referred to were Section 193(1D) of the Constitution and Section 31D of the Public Services (Management) Act. This switch means that a different ground of relief is being relied on, and as the plaintiff was refused leave at the hearing of the review to amend his grounds, he cannot rely on the arguments based on Section 193(3) and Schedule 1.10.

28. Mr Griffin, having had his application to amend ground No 1 refused, countered by arguing that the substance of ground No 1 had not changed. He admitted candidly during the course of submissions that the originating statement pleaded the wrong provisions. He did so after I pointed out the provisions he was referring to appeared to apply to Departmental Heads but not other office-holders such as the Commissioner of Police and the Commander of the Defence Force appointed under Section 193. However, he argued that, in effect, the same ground of review was being relied on.

29. I have decided to uphold Mr Griffin's submission on this issue of practice and procedure. In hearing applications for judicial review the National Court is bound to apply the rules of court with flexibility, to avoid substantial prejudice to any of the parties and to give paramount consideration to the interests of justice. I do not think the change of tack or switch of the provisions has prejudiced the defendants. The originating statement disclosed sufficiently clearly that the challenge to the plaintiff's suspension would be based largely on the failure to consult the PSC. It is equally clear that the originating statement was flawed by referring to the wrong constitutional provisions and an irrelevant provision of the Public Services (Management) Act. But as I intimated during the course of submissions: is the court to dismiss an important issue like this simply because the lawyer who drafted the originating statement misread the law and inserted incorrect provisions? I do not think so. I remind myself of the dictates of Section 158 (exercise of the judicial power) of the Constitution, which states:

(1)	Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2)	In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

30. I would not be dispensing justice if I were to decline to consider the merits of ground No 1. It is, in the form it was relied on by Mr Griffin during oral submissions, a ground of review properly before the court. I dismiss the objection to it.

SECOND ISSUE: WAS THE PUBLIC SERVICES COMMISSION, IN FACT, CONSULTED?

31. I am not persuaded by Mr Lambu's submission that publication of a statement in the National Gazette is, by itself, evidence of its truth. He referred to two provisions of the Evidence Act to support the submission. Section 52 (gazettes) states:

The production of a paper purporting to be a Gazette is in all courts evidence that the paper is the Gazette and was published on the day on which it is dated.

32. Section 53 (printing by government printer) states:

The production of a paper purporting to be printed by the Government Printer or by the authority of the Government or of the Government of Australia is in a court evidence that the paper was printed by the Government Printer or by such authority.

33. However, these provisions only say that if the copy of a gazette is adduced to a court, it constitutes evidence that it is a genuine copy of the gazette and that the document or instrument ("the paper") published in the gazette is genuine. The provisions do not say anything about the truth of what is in the National Gazette. That is not a reasonable construction to put upon those provisions. The defendants adduced no evidence in these proceedings that the PSC was consulted prior to the decision being made to suspend the plaintiff. On the other hand, the plaintiff adduced substantial documentary evidence suggesting that there was no consultation.

34. First, NEC Decision Nos 257, 258, 261 and 263 of 2006, dated 8, 9, 10 and 11 November 2006 respectively, all addressed the issue of the plaintiff's suspension but none mentioned consultation with the PSC. 

35. Secondly, the instrument of advice from the NEC to the Governor-General, signed by the Prime Minister and Chairman of the NEC on 13 November 2006, did not mention consultation with the PSC. Yet the instrument of suspension signed by his Excellency the Governor-General on 14 November 2006 does mention "consultation with the PSC". The reasonable inference to draw is that that was a form of words inserted as a matter of drafting practice by the drafter of the instrument – not that consultation had actually taken place.

36. Thirdly, there is the letter from the Acting Chairman of the PSC, Mr Liu, to the plaintiff's lawyers of 30 November 2006. The fact that Mr Liu did not give oral evidence to verify the letter and the truth of the statement in it, is not something that prevents the court considering the statement. The letter is annexed to the plaintiff's affidavit of 30 November 2006. The defendants had ample notice of its existence. They had ample time to challenge its authenticity using the provisions of Section 36 (cross-examination of deponents) of the Evidence Act. The plaintiff could have been called for cross-examination. Mr Liu could have been summoned to give evidence. The plaintiff's affidavit was admitted into evidence without objection. I regard Mr Liu's letter as credible evidence.

37. Mr Lambu's point about Mr Liu only saying that there was no consultation under Section 31D of the Public Services (Management) Act – and not saying that there was no consultation under Section 193(3) or Schedule 1.10 of the Constitution – is a clever one, if considered in isolation. But the court must put things in context and look at the question Mr Liu was asked. The question was in a letter from Young & Williams Lawyers bearing the same date as his reply, 30 November 2006:

Please confirm whether prior to 11 November 2006, the Public Services Commission was consulted, did investigate the affairs of and did recommend the suspension of Commodore Peter Ilau to the National Executive Council before his suspension on the grounds of his purported involvement with one Julian Moti. 

38. It is clear enough that Mr Liu's answer to that question (triple-barrelled though it may have been) was: "no". It cannot reasonably be inferred that he was leaving open the possibility that there was consultation under Section 193(3) or Schedule 1.10 of the Constitution.

39. This is the plaintiff's application. In the event there is a dispute over any aspect of the facts, he has the onus of proving the facts he relies on to the satisfaction of the court, on the balance of probabilities. He has discharged that onus. I find as a fact that the NEC did not consult the PSC prior to making the decision to advise the Governor-General to suspend the plaintiff. 

THIRD ISSUE: WAS CONSULTATION WITH THE PSC NECESSARY?

40. This is an important question of law. If the NEC is considering suspension of the Commander, does it have to consult the PSC prior to advising the Governor-General to effect the suspension? Mr Lambu ended up conceding that consultation is necessary but I am not bound by counsels' concessions or agreement on issues of law. This is a key aspect of the plaintiff's case and it requires thorough consideration. 

Appointment of Commander

41. The Commander of the Defence Force is appointed under Section 193 of the Constitution and Section 6 of the Defence Act. The Commander can be suspended or dismissed under the same laws. Section 193 is a complex provision that regulates appointments to a number of leadership offices, including Departmental Heads, members of the Boundaries Commission, head of the National Broadcasting Corporation, Commissioner of the Correctional Service, Commissioner of Police, Secretary to the NEC and Commander of the Defence Force. The bits of Section 193 applying to the Commander are Section 193(1)(f) and 193(3) (not Section 193(1D) as claimed in the plaintiff's originating statement).

42. Section 193(1)(f) states: 

This section applies to and in respect of the following offices and positions:—
… the office of Commander of the Defence Force. 

43. Section 193(3) states:

All appointments (whether temporary or substantive) to which Subsection (1)(d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.

44. Section 6(2)(a) of the Defence Act reinforces Section 193(3) by stating:

The Commander of the Defence Force … shall be appointed in accordance with Section 193 (appointments to certain offices) of the Constitution.

45. Section 193(3) does not expressly refer to suspension of the Commander but Section 6(2)(b) of the Defence Act does, by stating:

The Commander of the Defence Force … may be suspended or dismissed at any time by the Head of State, acting on advice, by notice in the National Gazette.

46. Mr Lambu's original submission was that because none of the provisions say anything about consultation with the PSC prior to suspension, such consultation was not necessary. He later adjusted his position in the light of Schedules 1.10(4) and (5) of the Constitution, which relevantly provide:

(4)	… where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed …

(5)	The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.
 
47. To similar effect is Section 36 (implied power to remove or suspend) of the Interpretation Act Chapter No 2, which states:

(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.

48. Schedule 1.10 of the Constitution applies to Section 193(3) of the Constitution by virtue of Schedule 1.1 (application of Schedule 1) of the Constitution. Section 36 of the Interpretation Act applies to Section 6(2) of the Defence Act by virtue of Section 2 (application) of the Interpretation Act.

Power to appoint includes power to suspend

49. Put in plain language these laws say:

•	the power to appoint a person to a public office includes the power to remove or suspend them;

•	however, the power to remove or suspend is subject to the same conditions as the power of appointment;

•	that means the same procedure used to appoint them must be used to remove or suspend them.

Previous cases

50. The above principles have been applied in a number of previous cases. In Bill Eichorn v Robert Ninikin, Joe Yanz and the East Sepik Provincial Assembly [1988-89] PNGLR 222 Kidu CJ held that the Speaker of the East Sepik Provincial Assembly could only be removed from office in the same way he was appointed: by secret ballot in accordance with the Standing Orders. A censure motion supported by a majority of members of the Assembly was ineffective if not done by secret ballot.

51. In Phillip Aeava v The State (2001) N2136 the plaintiff applied for judicial review of his suspension and subsequent removal from office as Chief Executive of PANGTEL. The Telecommunications Act provided for appointment of the Chief Executive but not for suspension or removal. Sawong J applied Section 36 of the Interpretation Act. The power of appointment was conferred on the Governor-General acting with and in accordance with the advice of the NEC, given after considering recommendations by the Minister for Communications. The power of suspension and removal was conferred in the same way and subject to the same conditions. His Honour concluded that the plaintiff's suspension was unlawful.

52. In David S Nelson v Patrick Pruaitch (2003) N2440 the Minister for Forests suspended the plaintiff, the Managing Director of the National Forest Service. The Forestry Act provided for appointment of the Managing Director but not for suspension or removal. Sevua J applied Section 36 of the Interpretation Act. The power of appointment was conferred on the Governor-General acting with and in accordance with the advice of the Minister, given after consultation with the National Forest Board. The power of suspension and removal was conferred in the same way and subject to the same conditions. The Minister did not consult the Board on the plaintiff's suspension. His Honour concluded that the suspension was unlawful.

Application of principles 

53. The Commander of the Defence Force is appointed in this way:

1	the appointment is made by the Governor-General;

2	the Governor-General acts with and in accordance with the advice of the NEC;

3	the NEC's advice must be given after consultation with the PSC.

54. It follows that the Commander can only be suspended the same way:

1	the suspension is effected by the Governor-General;

2	the Governor-General acts with and in accordance with the advice of the NEC;

3	the NEC's advice must be given after consultation with the PSC.

The first two requirements or conditions were satisfied. The third was not. There was no consultation with the PSC. 

Importance of consultation

55. The requirement to consult – especially in the present case where the requirement arises by operation of the Constitution – is not just a statement of general principle or a guideline. It is a legal, justiciable requirement. The above cases make that clear, as do two cases from the 1990s, initiated by the PSC itself when it was aggrieved by the failure of the NEC to consult it on a succession of Departmental Head appointments. 

56. In Ila Geno, Paul Lawton and Florien Mambu v The State [1993] PNGLR 22 the Supreme Court (Kapi DCJ, Woods J, Jalina J) emphasised that failure to consult the PSC was not simply an administrative matter. It raises an actionable issue as to non-compliance with a constitutional requirement and can be the basis of an application for judicial review. In Public Services Commission v The State [1994] PNGLR 603 Salika J declared the appointments of five Departmental Heads null and void due to the failure of the NEC to consult the PSC as required by Section 193(3). His Honour stated:

Where the Constitution imposes a duty or obligation, it must be carried out. Here, in my view, Section 193(3) imposes a duty on the NEC to consult with the PSC in making appointments under Section 193(1)(a).

In my view, Section 193(3) is in mandatory terms relating to the appointment of persons to certain offices by the Head of State [represented by the Governor-General]. The Head of State must act with, and in accordance with, the advice of the NEC. The advice given by the NEC to the Head of State in relation to the appointments must be given after consultation with the PSC. In my view it is a direction in mandatory terms.

It is not the courts' function to interfere with the functions of the NEC in carrying out its duties. However, the courts, as guardians of the law, are duty bound to ensure that the letter of the law is adhered to. 

57. I agree with those statements of principle by Salika J. The NEC was obliged to consult the PSC on the question of suspension of the Commander, in a way that complied with Section 255 (consultation) of the Constitution, which states:

In principle, where a law provides for consultation between persons or bodies, or persons and bodies, the consultation must be meaningful and allow for a genuine interchange and consideration of views.

58. The PSC is an independent constitutional institution constituted by three members with substantial experience in the National Public Service. Its role in the appointment, removal and suspension of senior public office-holders was strengthened considerably in 2004 by Constitutional Amendment No 25 (the State Services), related amendments to the Public Services (Management) Act (including the new Section 31D) and the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. These laws demonstrate how important the requirement of consultation is. It ensures that the risk of the NEC making arbitrary, ill-considered decisions on suspensions is reduced.

Conclusion re ground of review No 1

59. The first ground of review is upheld. The NEC failed to consult the PSC prior to making the decision to suspend the plaintiff. This was a serious breach of the Constitution. The plaintiff's suspension was infected by a significant error of law.

FOURTH ISSUE: DID THE PLAINTIFF HAVE A RIGHT TO BE HEARD BEFORE BEING SUSPENDED?

60. There is no doubt, following the decision of Los J in Leo Nuia v Benias Sabumei and Others [1992] PNGLR 90 that the Commander of the Defence Force must be given a right to be heard before he is dismissed. Suspension is a different matter and Mr Lambu was right to point out that the effect on a person's livelihood and reputation is not as great in the case of suspension as it is in dismissal or removal from office. 

61. However, the effect is still significant especially when the person being suspended is the head of a disciplined force. The person's reputation and standing and his authority within the command structure of the force are immediately diminished. Suspension of the head of a disciplined force can lead to confusion, disaffection or chaos. As explained by Injia DCJ in Francis Damem v Mark Maipakai (2005) N2730, suspending an office-holder of the standing and importance of the Attorney-General – or, as in this case, the Commander of the Defence Force – is not a decision that should be made lightly. The courts in PNG have been vigilant in enforcing the principles of natural justice – also known as procedural fairness – over many years, particularly in cases where public office-holders have been dismissed or suspended by their appointing authority without anyone bothering to hear the office-holder's side of the story. Amet J, as he then was, made these profound comments in one of the earlier natural justice cases, Benson Gegeyo and Others v Minister for Lands and Physical Planning [1987] PNGLR 336:

… 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.

62. His Honour made those statements of principle in relation to members of the Land Board whose appointments were revoked by the Minister without giving them a right to be heard. Those principles apply with greater force to holders of offices established by or appointments to which are governed directly by the Constitution. The greater the importance and standing of the office held by the person who it is proposed to suspend, the more acute is the need for the person to be afforded a right to be heard before he or she is suspended.

63. The appointment and suspension of the Commander of the Defence Force are decisions made under the Constitution. It is a very high public office. It is a leadership office under Section 26(1) of the Constitution. The holder of the office must be afforded natural justice if it is proposed to suspend him.

64. Mr Lambu suggested that there were special circumstances prevailing in November 2006 that warranted the plaintiff's immediate suspension; and therefore it was not practical or necessary to give him a right to be heard. Serious allegations were being made as to the role of members of the Defence Force in the allegedly unlawful movement of Mr Moti to Solomon Islands. The plaintiff was the head of the Defence Force and responsible for the conduct of its members. He was in Solomon Islands at the time of Mr Moti's movement. He was naturally implicated. A Defence Board of Inquiry was established. It made sense – and it was a proper and fair practice – to stand aside the Commander. It could not be said that the Commander's suspension was unfair. Nor would it be seen as unfair by reasonable people in the street, Mr Lambu suggested. The plaintiff is on full pay, so his personal interests are protected.

65. Those would all be valid considerations if the decision to suspend the plaintiff were being impugned on the ground that it was unreasonable or absurd. But that is not the ground of review relied on. It may well make sense to suspend the Commander of the Defence Force while a Board of Inquiry is running. No one is suggesting that the NEC does not have the power to decide that the Commander should be suspended. However, it must be done the right way. 

66. The right to be he heard of any person is special – something to be cherished in a society built on principles of fairness, decency and democracy. That is the sort of society PNG is supposed to be. That is what the National Goals and Directive Principles are all about. Despite the special circumstances brought about by Mr Moti's movement and because of the allegations that the plaintiff was involved, he deserved – and had a legal right – to be heard before he was suspended. Ground No 2(a) is upheld.

FIFTH ISSUE: DID THE PLAINTIFF HAVE TO BE GIVEN REASONS FOR HIS SUSPENSION?

67. This is the issue raised by ground No 2(b). It rises or falls with ground No 2(a). As I recently explained in Joe Ponau v Teaching Service Commission Disciplinary Committee (2006) N3059 the duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official's decisions. If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were recently applied by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747, Injia DCJ, Sakora J, Sawong J and Mision Asiki v Manasupe Zurenuoc (2005) SC797, Jalina J, Cannings J, Manuhu J. The following National Court decisions have applied the same principles: Niggints v Tokam [1993] PNGLR 66, Amet J; Yawip v Commissioner of Police [1995] PNGLR 93, Injia J; Wena v Tokam (1997) N1570, Injia J; Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659, Lenalia AJ; Michael Anis Winmarang v David Ericho and The State (2006) N3040, Cannings J.

68. The NEC was obliged to give the plaintiff reasons for his suspension. I am not persuaded by Mr Lambu's submission that Ms Kiap conveyed the reasons when she gave the plaintiff a bundle of NEC decisions relating to his suspension. That was better than giving him nothing. But it did not amount to giving reasons. I agree with Mr Griffin's submission that what was required was a discrete document, succinctly stating the reasons for the NEC's decision to advise the Governor-General to suspend the plaintiff. That would have been the decent and lawful thing to do. It was not done. Ground of review No 2(b) is upheld.

SIXTH ISSUE: WHAT REMEDIES SHOULD BE GRANTED?

69. To sum up, so far:

•	ground No 1 – errors of law due to failure to consult the PSC – is upheld;
•	ground No 2(a) – failure to give right to be heard – is upheld;
•	ground No 2(b) – failure to give reasons – is upheld.

70. Both grounds of review have been upheld in full and the decisions involved in suspending the plaintiff are therefore ripe for judicial review. As the Supreme Court emphasised in Mision Asiki v Manasupe Zurenuoc (2005) SC797 it is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.

71. Mr Lambu correctly pointed out that a number of the remedies sought by the plaintiff at the hearing are not claimed in the originating statement. He argued that the court should confine itself to precisely what is in the originating statement. 

72. As with the other procedural arguments made by Mr Lambu, it was a fair point, properly made. However, there are wider interests of justice at play. If the court insists on an overly stringent application of the Rules of Court we are in danger of losing sight of our main task: dispensation of justice according to law. Besides that, as Mr Griffin pointed out, the originating statement asked the court to make "such further orders this Honourable Court deems fit". That embraces the orders I propose to make, in the interests of justice. I will order that the plaintiff's suspension be quashed and that the appointment of the Acting Commander be revoked. The latter is a natural consequence of the former. I acknowledge that the Acting Commander was not a party to these proceedings. However, these proceedings have been held in public and given considerable publicity in the media. He has had ample opportunity to be represented and it was not necessary for him to be separately represented. I will build a brief grace period into the orders, so they will take effect three days after the pronouncement of the orders. This will allow for a smooth transition of power from the Acting Commander to the Commander.

COSTS

73. The rule of thumb is that the winning party has its legal costs paid by the losing party. Costs are at the discretion of the court. I can see an argument that though he has won the case the plaintiff should not be awarded costs because of the deficiencies in the originating statement: referring to the wrong provisions of the Constitution and not setting out all the remedies that he eventually sought at the hearing. However, the more telling consideration is that he succeeded in showing that his suspension was vitiated by a number of serious errors of law. He is an individual citizen and is entitled to the full protection of the law. I will award him costs.

ORDERS

74. I grant the application for judicial review and direct entry of judgment in terms of the following orders, all of which are subject to order No 7:

1	the decision of the National Executive Council of 11 November 2006 to advise the Governor-General to suspend the plaintiff is quashed and declared unlawful;

2	the suspension of the plaintiff by his Excellency the Governor-General, published in National Gazette No G206 on 14 November 2006 is quashed and declared unlawful;

3	the decision of the National Executive Council of 11 November 2006 to advise the Governor-General to appoint Colonel Francis Agwi as Acting Commander of the Defence Force is quashed and declared unlawful;

4	the appointment of Colonel Francis Agwi as Acting Commander of the Defence Force by his Excellency the Governor-General, published in National Gazette No G206 on 14 November 2006 is quashed and declared unlawful;

5	the plaintiff is reinstated as Commander of the Defence Force;

6	costs of these proceedings are to be paid by the State to the plaintiff on a party-party basis, to be taxed if not agreed;

7	these orders shall take effect at 3.00 pm on 15 January 2007.

Judgment accordingly.
______________________________________________________

Young & Williams: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants