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Ipatas v Somare [2010] PGNC 269; N4190 (24 December 2010)

N4190


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 385 OF 2009


BETWEEN:


PETER IPATAS in his capacity as Governor of Enga Province and Chairman of the Enga Provincial Executive Council and Assembly
First Plaintiff


AND:


DR. SAMSON AMEAN in his capacity as Provincial Administrator for Enga
Second Plaintiff


AND:


SIR MICHAEL SOMARE in his capacity as Chairman and other members of Parliament comprising the NATIONAL EXECUTIVE COUNCIL
First Defendant


AND:


KUNDAPEN KELVIN TALYAGA
Second Defendant


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Davani, J
2010: 10th, 24th December


PREROGATIVE WRITS – Declaration and Certiorari – Review of NEC decision – Provincial Administrator – appointment process – Error in law – unreasonable – abuse of powers – Organic Law on Provincial and Local-Level Governments ('OLPLLG'); s.60 Public Services (Management) Act ('PSMA'); Statutory Instrument No. 5 of 2003 Public Service (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 ('Regulation No. 5')


PROVINCIAL GOVERNMENT – Process – appointment of Provincial Administrator – NEC's role in appointment process – general discussion of process involving Public Service Commission, Provincial Executive Council and Department of Prime Minister – ss.60(1)(2)(3) of PSMA; s.73(2) of OLPLLG


PROVINCIAL GOVERNMENT – Provincial Executive Council – the NEC must have a list from the PEC and consider it before making an appointment – failure to do so is generally an abuse of its powers – s.60(1)(e)(i) of PSMA; s.5(3)(g) of Regulation No. 5


PROVINCIAL GOVERNMENT – Appointment of Acting Provincial Administrator – process discussed – s.60(2)(b)(3)(a) of PSMA


Facts:


On 18th June, 2003, Dr. Samson Amean was appointed as Provincial Administrator of the Enga Province for 4 years. That term expired on 16th June, 2007. Prior to that, the Provincial Executive Council of Enga ('PEC'), decided to commence the re-appointment process under s.60(2)(b) of the Public Service (Management) Act 1995 ('PSMA'). On 2nd January, 2007, the PEC decided to appoint Dr. Amean as the Provincial Administrator for Enga, for a further 4 years. Then began the process of re-appointment which progressed from 6th February, 2007 to 13th September, 2007. By letters of 13th September, 2007, the Acting Chairman of the PSC was advised to facilitate Dr. Samson Amean's appointment as Acting Administrator. By letter of 17th September, 2007, the PEC expressed surprise at this. However, this decision was implemented by the NEC, when on 4th October, 2007, Dr. Samson Amean's appointment as Acting Provincial Administrator was advertised in the National Gazette. Although, the Department of the Prime Minister ('DPM') advised by letter of 25th February, 2008, that Dr. Samson Amean would be re-appointed as Provincial Administrator, by letter of 6th March, 2008, the PSC directed that the position be publicly advertised. On 25th July, 2008, the position of Provincial Administrator was advertised and published in the National Gazette. Dr. Samson Amean applied. Following interviews conducted by DPM and PSC, Dr. Samson Amean was short listed first, in a list of three, for consideration by the PEC. By letter of 2nd June, 2009, the PEC requested 2 more names from the PSC, so it can consider from a broader list. The PEC did not get the requested list of names from the PSC, when on 17th July, 2009, the NEC revoked Dr. Samson Amean's acting appointment and appointed Mr Kundapen Talyaga as Provincial Administrator for Enga.


Issues:


  1. Whether the decision of the NEC made on 17 July 2009 to appoint Mr. Kundapen Talyaga is in accordance with law and therefore void.
  2. If not, whether the decision made on 17 July 2009 can be quashed or otherwise vitiated.
  3. Whether the orders declaring Dr. Samson Amean as acting Provincial Administrator until a valid decision to appoint a Provincial Administrator for Enga can be made in accordance with law.
  4. Whether the composition of Enga Provincial Executive Council is legal in respect to any resolution or meetings convened pursuant to Organic Law on Provincial Government and Local Level Government Amendment No 10 of 2006."

Reasoning;


  1. That the NEC's decision of 17th July, 2009 to appoint Kundapen Talyaga as Provincial Administrator is an error in law because it contravened and breached processes outlined in;
  2. That the NEC should have waited for a list from the PEC before it made the appointment of Provincial Administrator because s.73(2) of the OLPLLG states that the Provincial Administrator shall be appointed from a list of 3 submitted by the PEC from a list of persons recommended to the PEC by the PSC.
  3. The PSMA at s.60(1)(e)(i) states that the NEC shall make an appointment from the list submitted to it by the PEC. Regulation No. 5 states at s.5(3)(g)(h) that where the PEC has made a selection of 3 names and has submitted them to the Minister for Public Service, that the Minister shall present a submission to the NEC in respect of the 3 candidates in the order of the PEC's preference, i.e the NEC shall make an appointment taking into account the order of preference indicated by the PEC. The PSC cannot go outside of or circumvent that list.
  4. As the OLPLLG requires the PEC to make the submission to the NEC, to the extent that the Regulation requires the PEC to pass its submission to the Minister and for the Minister to submit it to the NEC, in a submission prepared by the Department of Personnel Management, the Minister and the Department are only facilitators to pass the PEC's recommendation to the NEC in the form of a submission. They are given no power to add or subtract from the recommendation of the PEC. Nor are they given power to delay the transmission of the PSC's recommendation to the National Executive Council. (Followed Willie Edo v. Hon. Sinai Brown (2006) N3071 dated 21.7.2006).
  5. The NEC made the appointment, without a submission or list from the PEC, a clear breach of mandated process, stated above.
  6. The scheme of the law is that the PEC must play its part in the appointment process because of the critical role the incumbent has in its government process and administration.
  7. The PEC was properly and validly constituted when it made its decisions.

Held:


  1. An order in the nature of Certiorari to bring up and quash the first defendant's decisions made on or about 17th July, 2009 and 20th July, 2009, revoking the second plaintiff's appointment as Acting Provincial Administrator and appointing the second defendant as the Provincial Administrator for the Enga Province.
  2. A Declaration that the first defendant's decision of 17th July, 2009, to appoint a Provincial Administrator for Enga Province is contrary to law and is therefore null and void.
  3. An order for prohibition, prohibiting the first and second defendants from facilitating or making a decision to appoint the Provincial Administrator for Enga unless and until they have a submission from the Provincial Executive Council of Enga containing its list of preferred candidates.
  4. The plaintiffs are at liberty to apply for further consequential orders upon 3 days notice to the defendants.
  5. The first and second defendants shall pay the both plaintiffs' costs of the proceedings, to be taxed if not agreed.

Case Cited:


Papua New Guinea cases
Dale Christopher Smith v. Minister for Lands (2009) SC 973.
Hanjung Power Limited v. Dr Allan Marat, Attorney-General (2006) N3751;
Isaac Lupari v. Sir Michael Somare (2008) N3476;
Kekedo v. Burns Philip [1988-89] PNGLR 122;
Lima Dotaona and Paul Tohian v. Moses Maki's and the State [1998] N1797;
Matu Mining Pty Ltd v. Embel (1995) SC483;
Mission Asiki v. Manasupe Zurenouc & Ors (2005) SC 797;
NTN Pty Ltd v The State (1986) PNGLR 167;
Pansat Communication Pty Ltd v. Momis (1995) N1321;
PNG Harbours Board Ltd v. Pex Avosa (2006) N306;
Telepage Pty Ltd v. PTC (1987) N605;
Willie Edo v. Hon. Sinai Brown (2006) N3071


Overseas Cases


Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 233;
Clements v. Bull [1953] HCA 61; (1953) 88 CLR 572;
Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155;
Council of Civil Service Unions v. Minister for the Civil Services [1985] AC 374;
New South Wales v. Macquarie Bank Ltd (1992) 30 NSWLR 307;
Williams v. Melbourne Corporation [1933] HCA 56; (1993) 49 CLR 142;


Counsel:


D. Steven, for the first and second plaintiffs
J. Amanu, for the first and second respondents
E. Geita, no appearance (for the first and third defendants)


DECISION


24th December, 2010


  1. DAVANI . J: This Judicial Review is before me for substantive hearing. It is opposed by the second respondent. The decision sought to be reviewed is that of the first defendant National Executive Council ('NEC') made on or about 17th July, 2009 to revoke the second plaintiff's appointment as Acting Provincial Administrator and to appoint the second defendant as the Provincial Administrator for the Enga Province.
  2. The Review Book filed by Stevens Lawyers on 9th July, 2010, contains all the necessary documentation filed in support of this Review, together with the order granting leave on 24th July, 2009.

Orders sought


  1. The orders/reliefs sought by the second plaintiff ('Dr Samson Amean') are contained in paragraphs 2, 3, 4, 10 and 12 of the Originating Summons filed on 20th July, 2009. These are;

"...


2. An order in the nature of Certiorari to bring up and quash the decision of the first defendant (NEC) made on or about 17 July 2009 to revoke the appointment of the second plaintiff as Acting Provincial Administrator and to make a substantive appointment of another person (other then the second plaintiff) to the position of Provincial Administrator of Enga.


3. An order in the nature of a declaration that the decision of the First Defendant made in relation to the appointment of the Provincial Administrator for Enga made on or about 17 July 2009 is contrary to law and is therefore void.


4. An order prohibiting the First and Second Defendants, their servants and agents from taking any steps to appoint the Provincial Administrator of Enga Province.


...


10. Costs of these proceedings.


...


12. That the time of entry be abridged to the time of settlement by the Registrar which shall take place forthwith."


Undisputed facts, Disputed facts, Issues


  1. The undisputed or agreed facts and issues are taken directly from the Statement of Agreed & Disputed Facts and issues for Trial (the 'statement of facts'), endorsed by Mr Stevens for the first and second plaintiffs, Mr Alois Jerewai for the first and third defendants and Mr Kelly Naru for the second defendant. It was filed by Stevens Lawyers on 25th June, 2010. It reads as follows;

"1. Agreed Facts:


  1. Mr. Peter Ipatas is the current Governor of Enga and Chairman of the Provincial Executive Council of the Enga Provincial Government.
  2. Dr. Samson Amean is the Acting Provincial Administrator of Enga Province.
  3. Dr. Amean was initially appointed to the position of Provincial Administrator, Enga Province on 18 June 2003 for a term of 4 years that expired on 16 June 2007.
  4. Based on advice received on the matter from Department of Personnel Management (DPM), the Provincial Executive Council (PEC) of Enga decided to invoke the process of reappointment allowed under Section 60(2)(b) of the Public Service (Management) Act 1995.
  5. The PEC of Enga did conduct a performance assessment on Dr. Amean's performance in office based on which it decided on 2 January 2007 to appoint Dr. Amean as the Provincial Administrator for Enga for a further term of 4 years.
  6. On 6 February 2007, the Chief Secretary acting in his capacity as Chairman of CACC requested the Enga Provincial Government to provide him with Dr. Amean's Work Performance Report in the prescribed form.
  7. By letter dated 27 February 2007, the required work performance report was forwarded to the Office of the Chief Secretary to Government. The Chief Secretary was advised in the same letter about the PEC's decision to reappoint Dr Amean under Section 60(2)(b) PSMA.
  8. By letter dated 11 April 2007, the Acting Chief Secretary to Government, Ms. Margaret Elias acknowledged receipt of the Work Performance Assessment Report from the Provincial Executive Council.
  9. By letter dated 13 September 2007, from the Acting Chairman of the PSC, Governor Ipatas in his capacity as Chairman for Enga was advised to facilitate the appointment of Dr. Amean to act in the position.
  10. Governor Ipatas responded by letter dated 17 September 2007 addressed to the Acting Chairman of PSC expressing surprise that the matter was now to be treated as an acting appointment when the PEC had facilitated and was expecting the re-appointment of Dr. Samson Amean as Provincial Governor.
  11. In the same letter, the Governor also refuted the allegation by Secretary of DPM that it was the PEC that had delayed the acting appointment process when the suggestion was baseless and untrue and that the delay was by central government agencies in Waigani.
  12. On 4 October 2007, the appointment of Dr. Amean as Acting Provincial Administrator was published in the National Gazette.
  13. By letter dated 25 February 2008, the Secretary DPM advised the PSC that Dr. Amean would be reappointed as Provincial Administrator under Section 60(2)(b) of the Public Service Management Act 1995.
  14. The PSC responded to the decision of DPM by letter dated 6 March 2008 in which it directed that the position be advertised publicly.
  15. Dr. Amean did apply for the position following the advertisement of the position vacancy in the National Gazette published on 25 July 2008. Mr Kundapen Talyaga did apply for the same position.
  16. Following interviews conducted by DPM and PSC, Dr. Amean was listed number one of the three short listed applicants for consideration by the PEC.
  17. I know that the PEC had considered the list of three names and has responded to the PSC by letter dated 2 June 2009 to request two more candidates so the PEC can consider its candidate from a broader list.
  18. The PEC of Enga has not made a decision in relation to its list of names to the National Executive Council (NEC) for the Provincial Administrator's position.
  19. On 17 July 2009, the NEC decided to revoke the acting appointment of Dr. Amean and to appoint Mr. Kundapen Talyaga as the Provincial Administrator of Enga.

...


3. Issues for Trial:


27. Whether the decision of the NEC made on 17 July 2009 to appoint Mr. Kundapen Talyaga is in accordance with law and therefore void.


28. If not, whether the decision made on 17 July 2009 can be quashed or otherwise vitiated.


29. Whether the orders declaring Dr. Samson Amean as acting Provincial Administrator until a valid decision to appoint a Provincial Administrator for Enga can be made in accordance with law.


30. Whether the composition of Enga Provincial Executive Council is legal in respect to any resolution or meetings convened pursuant to Organic Law on Provincial Government and Local Level Government Amendment No 10 of 2006."


  1. The facts that are disputed are also taken from the statement of facts and are as follows;

"2. Disputed Facts.


  1. By letter dated 19 February 2009 from the Public Service Commission (PSC) to the PEC of Enga, a list of 3 names was provided to the Provincial Executive Council (PEC) of Enga Province to consider.
  2. The NEC decision on 17 July 2009 to appoint Mr. Kundapen Talyaga as Provincial Administrator for Enga Province was in accordance with the procedures prescribed in law.
  3. The PEC of Enga has not received such a list comprising 5 names from the PSC.
  4. The PSC has not submitted a list of (3) three names expressly required by Section 73(2) Organic Law on Provincial and Local Level Government to enable the NEC to make an appointment decision in relation to the Provincial Administrator's position.
  5. That the Provincial Executive Council of Enga had been consulted on the appointment of the Provincial Administrator for Enga.
  6. That the process of consultation between the PSC and the PEC of Enga has been completed.
  7. A Notice in the National Gazette was published on 20 July 2009 after the Court case had been commenced in the National Court in Waigani."

Analysis of evidence and the law


(i) Affidavits
  1. The affidavits sought to be relied on by Dr. Amean are;
  2. The defendants rely on the following affidavits;
  3. I have heard that the affidavit of Manly Ua, although sworn, was not filed. Mr Stevens has not objected to this and I assume he does not object to the applicant relying on that affidavit because it forms part of the Review Book at pgs.266 to 299, which was endorsed by all Counsel.

(ii) Grounds for review.


  1. The plaintiffs basically seek orders in the nature of Certiorari to bring up and quash NEC decision made on 20th July, 2009. I say 20th July, 2009 because the NEC gave notice of its decision made on 17th July, 2009 by notice published in the National Gazette dated 20th July, 2009. That is not disputed. Therefore, the dates 17th and 20th July, 2009 will be used interchangeably throughout in this decision.
  2. The grounds as pleaded in the Statement filed on 20th July, 2009 are;
(ii) Relevant legislation
  1. Section 73(2) of the OLPLLG reads;

"(2) All substantive appointments to offices of Provincial Administrator shall be made by the National Executive Council from a list of three persons submitted by the Provincial Executive Council concerned from a list of persons recommended to the Provincial Executive Council by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.." (my emphasis)


  1. Section 60 of the PSMA provides;

"(1) The procedures relating to the substantive appointments to offices of Provincial Administrators referred to in Section 73(2) of the Organic Law on Provincial Governments and Local-Level Governments are as follows:-


(a) Where an office of Provincial Administrator becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsections (2) and (3) –

(b) after consideration and assessment of the applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall –

(c) an assessment of an applicant under paragraph (b) shall be based on –

(d) the Commission shall consider the list submitted under paragraph (b)(ii)(A) and all applications received in response to the advertisements under paragraph (a)(iv) and shall –

(e) the Provincial Executive Council shall –

(2) Where –


(a) an office of Provincial Administrator becomes vacant or is likely to become vacant; and

(b) the person holding the office or who held the office immediately before it became vacant is willing and eligible to continue in that office, the Departmental Head of the Department of Personnel Management shall obtain from the Central Agencies Co-ordination Committee a report under Section 24A on the performance and discipline of that person, and where such report justifies the re-appointment of that person shall notify the Commission accordingly and, subject to subsection (3)(b), the procedure specified in subsection (1) shall not be followed.

(3) On receipt of a notification under subsection (2), the Commission shall recommend to the Provincial Executive Council that the person be re-appointed and –


(a) where the Provincial Executive Council is agreeable to the re-appointment, it shall advise the National Executive Council to re-appoint as substantive Provincial Administrator; or

(b) where the Provincial Executive Council is not agreeable to the re-appointment –
  1. Regulation No. 5 s.5 provides:

"5. Vacancy in the office of Provincial Administrator


(1) Subject to Section 6, where the office of Provincial Administrator is vacant or about to become vacant, the Departmental Head of the Department of Personnel Management shall, on the advice of the relevant Governor of the Province following a decision of the Provincial Executive Council, declare the office vacant.

(2) Where a vacancy has been declared under subsection (1), the Departmental Head of the Department of Personnel Management shall cause to be advertised the position in the National Gazette in a standard format.

(3) Where an office has been advertised in accordance with subsection (2) –
  1. The Judicial Review jurisdiction of the Court is not concerned with the merits of the decision but with the decision making process (see Kekedo v. Burns Philip [1988-89 PNGLR 122). Dr. Samson Amean seeks to establish that the NEC's conduct is an error in law and amounts to an abuse of power. He seeks to establish that the NEC breached the stipulated mandatory processes and appointed 'their man'. That he has come to this Court for Judicial Review because that process is "intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial and, ...administrative...That, it is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Courts as the bodies making the decisions..." (see Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155 (House of Lords)).
  2. Therefore, the decision making process that was undertaken through application or non-application of the statutorily prescribed or sanctioned process, rather than the decision itself, has to be reviewed to determine whether or not the NEC properly used and exercised its powers, as demanded by law.
  3. The Courts have developed a body of substantive principles of public law to ensure that public bodies do not exceed or abuse their powers, and that they perform their duties and discharge their responsibilities as required by law. Thus, the Courts will review an exercise of power to ensure that the public body;
  4. These principles were summarised by Lord Diplock in the oft-cited House of Lords decision Council of Civil Service Unions v. Minister for the Civil Services [1985] AC 374 at 410 as illegality, irrationality and procedural impropriety.
  5. The applicants' grounds for review raise error in law, ultra vires and unreasonableness. I deal firstly with the first ground.

Error in law


  1. Mr Steven submits that the NEC's decision of 17th July (and thereafter the gazettal on 20th July), appointing Kundapen Talyaga as Provincial Administrator for Enga, was made without receiving the prescribed submission from the Enga PEC containing the names of 3 preferred candidates. Mr Steven submits that in that respect, the following legislations have been breached;
  2. Mr Amanu for the second defendant Kundapen Talyaga ('Mr Talyaga') submits that the NEC had complied with processes under the PSMA. He referred to the various provisions of the PSMA, more particularly s.60, and illustrated this with evidence that he considers, demonstrates that the stipulated processes had been complied with in relation to the appointment of Mr Talyaga. Mr Amanu also submits further that the re-appointment of Dr. Samson Amean by the PEC is in breach of s.6(5) of Regulation No. 5 and s.60(2) of the PSMA. Mr Amanu submits that according to s.6(5) of Regulation No. 5 and s.60(2) of the PSMA, the PSC shall make recommendation for Dr. Samson Amean to be re-appointed by the PSC. He submits that in this case, there was no recommendation for Dr. Samson Amean to be re-appointed by the PSC. He submits that the PEC passed a resolution, on its own volition, for Dr. Amean's re-appointment. Mr Amanu submits that this is unlawful. Mr Amanu submits further that there was deliberate delay by the Governor, the first plaintiff, which prompted Engan MPs and the Honourable Miki Kaeok ('Mr Kaeok'), to request the Prime Minister, in his capacity then, as the Acting Public Services Minister, to present a submission to NEC to appoint the Enga Provincial Administrator. He submits that the undue delay by the PEC to submit its recommendation to the PSC has defeated the true meaning of s.60(1)(e) of the PSMA. The evidence in relation to what transpired is taken from the various affidavits before the Court, contained in the Review Book.
  3. I have reviewed the facts and note these facts set out below to be the chronology of events that commenced from when Dr. Samson Amean was appointed to be the Provincial Administrator;

The letter advised also that the 3 names were from a list of 5 submitted to it (PSC) from the Secretary of the Department of Personnel Management by letter dated 25th February, 2008. These candidates were;


(xi) 2nd June, 2009 – Date of letter from the PEC to the PSC advising that the PSC should not have recommended to it 3 names, but 5 names.

The PEC's letter further advised, amongst others, that at its meeting on 22nd April, 2009, it decided that;


(xii) 17th July, 2009 – NEC decided to appoint the second defendant as Administrator for Enga Province which was subsequently gazetted on 20th July, 2009.

22. The above chronology demonstrates that 2 appointment processes were undertaken, firstly, that under s.60(2)(a) and (b) of the PSMA and thereafter, the process under s.60(1) of the PSMA. I would have to determine whether;


- There was an error in law in the manner in which both appointment processes were commenced and then, terminated;

- Whether the NEC had acted beyond its powers, subsequently abusing its powers, when it did what it did;

- Is the decision so unreasonable, having regard to all the circumstances, that no reasonable decision-maker would have made that decision.

Process under s.60(2)(b) and (3)(a) of the PSMA:


  1. I deal firstly with this process as it was undertaken first in time.
  2. As Dr. Samson Amean's term as Provincial Administrator would expire on 4th October, 2007, on 2nd January, 2007, the PEC resolved to re-appoint him for a further 4 years, done in accordance with s.60(2) of the PSMA.
  3. The facts show these steps to have been taken, or not to have been taken;

The PEC's decision to re-appoint Dr. Amean together with the completed Work Performance Report, were sent to the Office of the Chief Secretary to Government by letter dated 27th February, 2007 which was acknowledged by the Acting Chief Secretary to Government by her letter of 11th April, 2007.


(iii) 25th February, 2008: Date of Secretary DPM's letter advising the PSC on the processes being undertaken to re-appoint Dr. Amean as Provincial Administrator.

(iv) 6th March, 2008: Date of letter from PSC to DPM directing that the position of Provincial Administrator be publicly advertised.
  1. Basically, although the process was commenced under s.60(2) of the PSMA, the PSC unilaterally put a stop to it on 6th March, 2008. By then, Dr. Samson Amean was already acting in that position, appointed as at 4th October, 2007. The process in relation to the acting appointment commenced on 17th September, 2007, seven months after the process in relation to the re-appointment under s.60(2) had commenced.
  2. Although, the applicant does not seek any relief in relation to the PSC's actions under s.60(2) of the PSMA, in my view, the PSC has indeed strayed from the duly legislated processes without providing any valid or proper explanation. Effectively, it would have been the PEC who had the final say. That is, in accordance with s.60(3), if the PEC was agreeable with the re-appointment of an incumbent, it will advise the NEC to re-appoint the incumbent to the substantive position of Provincial Administrator. I emphasise that it is the NEC that re-appoints upon advice from the PEC.
  3. However, where the PEC is not agreeable to the re-appointment, it shall advise the PSC and the Head of DPM and the processes set out in s.60(1) shall be followed. But this did not occur.

Process under s.60(1) of the PSMA;


  1. By letter of 19th February, 2009, the PSC provided a list of 3 names to the PEC which the PEC refused to accept, requesting that the PSC re-advertise and re-submit 5 names, done by the PEC's letter of 2nd June, 2009.
  2. Should the PSC have sent a list of 5 and not a list of 3?
  3. According to s.60(1)(b)(i) of the PSMA, after consideration and assessment of applications, and after consultation with the CACC, the DPM shall compile "a list of not less than 5 candidates.." and will submit to the PSC for its consideration.
  4. The PSC shall consider that list "and all applications received in response to advertisements.." (s.60(1)(d)) and will then submit the list as a recommendation to the PEC (s.60(1)(d)(i)(ii)). (my emphasis).
  5. However, Regulation No. 5 states differently. It states at s.5(3)(d), (e), (f)(i) (ii) that the PSC, after conducting the necessary assessments, will then compile a list of 5 candidates with its recommendations to the PEC. The PEC will either select 3 candidates and submit to the Minister for Public Service in preferred order for inclusion in submission to the NEC. Or, it can reject all candidates and request a new list from the DPM.
  6. Section 73(2) of the OLPLLG states that the Provincial Administrator shall be appointed from a list of 3 submitted by the PEC from a list of persons recommended to the PEC by the PSC.
  7. How can this Court deal with this statutory dilemma, as I term it?
  8. In that respect, Mr Stevens referred the court to Willie Edo v. Hon. Sinai Brown (2006) N3071 dated 21st July, 2006, where Lay .J, as he then was, when faced with a similar predicament, found and held that Regulation No. 5 must be read and construed subject to the PSMA. He found and held further that the Regulation No. 5 was ultra vires the PSMA because of several conflicting provisions including the drafting anomaly I just pointed out. His Honour said;

"I consider the Regulation to be Ultra Vires the Act... in requiring the list to have three names. To the extent that the Regulations must be read down so that they are interpreted in a way which is consistent with the Act...;" (pgs. 16, 17).


  1. Although that finding was made in an application for leave for Judicial Review where His Honour only had to determine whether there was an arguable case, I will apply this reasoning in this case as I find it very appropriate and relevant. I find that the PSMA applies, in that a list of 5 should have been submitted to the PEC after which the PEC then submits its list of 3. And of course, this explains why s.73(2) of the OLPLLG sates that the Provincial Administrator shall be appointed "from a list of persons" submitted to the PSC by the PEC, the rationale being the more names the PEC has, the more options it has in the candidates available to it. I find that indeed an error of law has occurred in that respect.
  2. Additionally, after the PEC responded by requesting an additional 2 names, the NEC proceeded to appoint the second defendant Kundapen Talyaga, as the Provincial Administrator. This is in direct contravention of processes stipulated in s.60 of the PSMA, s.73(2) of the OLPLLG and Regulation No. 5. No doubt, the NEC made the appointment without a submission from the PEC. The process of appointment is not a light matter (see Lima Dotaona and Paul Tohian v. Moses Maki's and the State N1797; Willie Edo v. Sinai Brown (supra)). That is why the PSMA, OLPLLG and Regulation No.5 are very detailed and descriptive of the process involved in the appointment of a Provincial Administrator.
  3. Section 5 of Regulation No.5 provides in no uncertain terms that the appointment of the Provincial Administrator is made by the NEC from a list of three (3) persons submitted by the PEC. The evidence shows that this was not done.
  4. Section 60(1)(a)(ii) of the PSMA allows for a PEC to advise the PSC and the Departmental Head of DPM to re-advertise or more specifically, follow the process set in par.60(a)(iv), (b), (c), (d) and (e)(i), if the PEC "...does not consider any of the persons on the list submitted to it under paragraph (d)(ii) suitable for appointment...". But the PSC and DPM did not do that. They proceeded to appoint the second defendant, in clear breach of stipulated process.
  5. What does Mr Talyaga say about this?
  6. Mr Amanu, his Counsel, submits that the PEC did not "properly/legally" conduct its meeting with "legal members" of the PEC to deliberate on the issue of the administrator's position. He submits further that there was "unreasonable and deliberate" delay by the PEC in relation to consideration by the PEC of the nominees sent to it from the PSC.
  7. What is the evidence on this claim?
  8. The PSC's letter to PEC is dated 19th February, 2009. There is no evidence of when the letter was posted and when it was received by the PEC. The PEC's response to the PSC is dated 2nd June, 2009, advising amongst others that it had decided not to submit the 3 names to NEC, and that this was decided at its 22nd April, 2009 meeting. This then takes me to the annexures attached to Manly Ua's affidavit sworn on 21st July, 2009. Manly Ua deposed an affidavit on 21st July, 2009, in his capacity as Acting Secretary, National Executive Council. To that affidavit, is an executive brief, purportedly signed by the Prime Minister as Head of the NEC, and which brief states at par. no. 7;

"7. The Public Services Commission has exhaustively followed the stringent legislative processes and procedures and have come up with an short list of the following three (3) persons in order of preference:


  1. Mr Kundapen K. Talyaga
  2. Mr. Luke Kembol
  3. Dr. Samson Amean

(The full assessment of the short list can be found in the Commission's Assessment Report and the Assessment Matrix attached hereto as annexure marked "A")."


  1. Annexure "A" attached to that brief is the PSC's letter of 19th February, 2009 to Governor Peter Ipatas and the PSC's completed "Assessment Report on the Short Listing of Candidates for the Position of Provincial Administrator – Enga Provincial Administration" ('Assessment Report'), the same document that the PEC sent to the Chief Secretary for Government by letter dated 27th February, 2007. The Assessment Report is the document that the PEC deliberated on, at its meeting on 22nd April, 2009, after which it conveyed its response to the PSC by letter of 2nd June, 2009. This is the same list or Assessment Report that is referred to in the NEC's brief attached to Manly Ua's affidavit, more particularly par.7 referred to above. However, what was omitted in the Assessment Report are the 3 names that were referred to in the PSC's letter of 19th February, 2009 and which are;

"1. Dr. Samson Amean

2. Mr. Luke Kembol; and

3. Mr. Kundapen Kevin Talyaga".


  1. Those are the names that should have been listed at par.7 of the Assessment Report, not "1. Kundapen Talyaga, 2. Luke Kembol 3. Dr. Samson Amean".
  2. As for the purported delay, the OLPLLG, PSMA and Regulation No. 5 do not state a time period when the PEC should respond. Additionally, it would have been a period of about 3 months only when the Enga Provincial Government was without an Administrator. And it was through no fault of the first and second defendants because they had started the process of re-appointment back in January, 2007 or even before that. They were concerned about a vacuum and so started the process before Dr. Amean's term expired. I will not accept Mr Amanu's submissions on delay because it is all baseless.
  3. Can the NEC provide a list, different to that as proposed or selected by the PSC?
  4. The PSMA and Regulation No. 5 do not say that. The PSMA at s.60(1)(e)(i) states that the NEC shall make an appointment from the list submitted to it by the PEC. Regulation No.5 states at s.5(3)(g), (h) that where the PEC has made a selection of three (3) names and has submitted them to the Minister for Public Service, that the Minister shall present a submission to the NEC in respect of the 3 candidates in the order of the PEC's preference, i.e, the NEC "shall make an appointment taking into account the order of preference indicated by the PEC". The NEC cannot go outside of or circumvent that list.
  5. In the case Willie Edo v. Hon. Sinai Brown (supra), Lay .J, as he then was, said;

"...As the Act requires the PEC to make the submission to the NEC, to the extent that the Regulation requires the PEC to pass its submission to the Minister, and for the Minister to submit it to the NEC, in a submission prepared by the Department of Personnel Management, the Minister and the Department are only facilitators to pass the PEC's recommendation to the NEC in the form of a submission. They are given no power to add or subtract from the recommendation of the PEC. Nor are they given power to delay the transmission of the PSC's recommendation to the National Executive Council." ((my emphasis) (pg. 17).


  1. It is obvious that the Assessment Report that was purportedly signed by the Prime Minister was prepared by persons who had little or no knowledge about the mandatory processes involved. Or if they or he or she had knowledge of these processes, they chose to ignore it.
  2. I find that the PEC should have firstly given its list of 3 to the PSC, before the PSC took any further steps. This is a clear breach of process.
  3. What about Mr Amanu's submissions that when the PEC convened on 22nd April, 2009 and decided that the PSC should send it 5 names and not 3 names, that the meeting was unconstitutional, void and of no effect as was ordered by the National Court in proceedings OS 22 of 2009?
  4. The National Court order in OS 22 of 2009 that Mr Amanu refers to was made on 3rd June, 2009; the PEC meeting was held on 22nd April, 2009, some two months before. An interim injunction issued on 21st May, 2009 also does not affect the decisions made by the PEC on 22nd April, 2009.
  5. What of the involvement of other Engan politicians and the possibility that they had influenced the NEC in appointing the second defendant?
  6. There is evidence before me that certain politicians had requested the Acting Chief Secretary then and the then Secretary of the DPM to appoint either the second defendant or Mr Luke Kembol to be the Engan Provincial Administrator. (See annexure "C" of the Honourable Miki Kaeok's affidavit sworn on 28th July, 2009 and filed on 17th August, 2009 which is Tab 22 in the Review Book). Their submissions to the DPM were made from their perspective as concerned Engan MPs, but the fact is that there are processes to be followed, which must be followed. And this was not done.
  7. I find that the decision not to appoint Dr. Samson Amean is contrary to law and an error that taints the NEC's decision made on 17th July, 2009 and subsequent gazettal on 20th July, 2009.
  8. It demonstrates that the NEC acted beyond its powers in making the decision under review.

Ultra Vires and Abuse of Power


  1. I find that the same or similar legal issues arise. This is reaffirmed by s.73(2) of the OLPLLG which provides in no uncertain and clear terms, the scope of the NEC's powers in the appointment process which is that the NEC can only rely on submissions from the PEC and must not devise its own list as was done in this case.
  2. When the NEC knew that it did not have a list from the PEC, it should not have continued the process. The evidence is that the NEC did not have a list from the PEC but still continued with the process.
  3. The NEC and its officers facilitating that process are responsible for this unforgiveable fiasco. Their duties, amongst others, is to be vigilant and protective of the processes that it polices and executes. They must not bow down to political pressure but must be prepared to ride out a storm in the protection of the democratic principles laid out by the men and women who fought to gain the freedom that we all now enjoy and treasure. In the circumstances of this case, it is clear that the PEC had not submitted its list. The NEC, in exercising its Constitutional duties that it is duty bound to perform, should have halted the process. But it did not
  4. Instead, as it happened in this case, the NEC exercising people's powers vested in them by legislation, endorsed a decision that is wrong in law and that is now causing much hardship to the administration of Enga and its government and constituents.
  5. Therefore, I find that the NEC decision under review is not only ultra vires but also an abuse of powers at the highest level of government.

Unreasonableness


  1. The final ground raised is that of irrationality and unreasonableness under the Wednesbury Principles.
  2. Mr Stevens referred me to by Cannings .J's decision Hanjung Power Limited v. Dr Allan Marat, Attorney-General (2006) N3751, where he laid out the common law on the principle of unreasonableness. I adopt those principles. Cannings .J said;

"Is the decision that has been made so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision? (Paul Sakobo v. Commissioner of Police (2006) N2975).


If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure".


"Unreasonableness is a more common and conventional ground of judicial review of delegated legislation than is natural justice... it rests on the presumption that when the primary law-making authority...delegates law-making power (the power to make regulations) to another authority...the delegation is subject to some fundamental, implied constraints: one of which is that the power must be exercised reasonably and rationally having regard to the purposes of the enabling law (Williams v. Melbourne Corporation [1933] HCA 56; (1993) 49 CLR 142; Clements v. Bull [1953] HCA 61; (1953) 88 CLR 572; New South Wales v. Macquarie Bank Ltd (1992) 30 NSWLR 307)." (my emphasis)


"Unreasonableness is an ultra vires (i.e beyond power) ground of judicial review of delegated legislation; its essence being that the authority delegated the law-making power has gone beyond the limits of its power.


The ultra vires principle has been adopted and applied in a number of PNG cases resulting in various pieces of delegated legislation being declared null and void, e.g Telepage Pty Ltd v. PTC (1987) N605; NTN Pty Ltd v. The State (1986) PNGLR 167; Pansat Communication Pty Ltd v. Momis (1995) N1321, Matu Mining Pty Ltd v. Embel (1995) SC483. None of those cases, however, involved a determination that law-making power has been exercised unreasonably. They were all cases where the sort of delegated legislation that was made was simply not permitted by the enabling law."


  1. Mr Stevens urges me to find that the decision of the NEC in this case is unreasonable in that it was made without regard to the purpose of the law in relation to appointment of Provincial Administrators.
  2. I agree with Mr Stevens that the scheme of the law is that the PEC must have a major role in the appointment process because of the critical role the incumbent has in its government process and administration.
  3. What is the Court's power where a decision is unreasonable?
  4. Douglas and James' Administrative Law (2006) fifth edition, at pg.462, states this about the Court's power where unreasonableness is an issue;

"...They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition... but the Court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the Courts in a strictly limited class of cases. As I have said, it must always be remembered that the Court is not a Court of appeal. When discretion of this kind is granted, the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the Court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters...


It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions, often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that lay within the powers of the authority..." (my emphasis)


  1. The irrationality of the decision is also clear in the foregoing submissions and are adopted.
  2. I find that the test for unreasonableness and irrationality are met in the circumstances of this case.

Temporary appointment pending substantive appointment


  1. I discuss this aspect of the plaintiffs' case as Mr. Amanu has submitted that it is the plaintiffs who sought the acting appointment. Enga PEC was advised by letter dated 13th September, 2007 from the Acting Chairman of the PSC, to facilitate the appointment of Dr. Amean to act in the position of Provincial Administrator.
  2. Governor Ipatas responded by letter dated 17th September, 2007, addressed to the Acting Chairman of PSC, expressing surprise that the matter was now to be treated as an acting appointment when the PEC had facilitated, what was expected to be the re-appointment of Dr. Samson Amean as Provincial Administrator.
  3. On 4th October, 2007, the appointment of Dr. Amean as Acting Provincial Administrator was published in the National Gazette. Obviously, Dr. Samson Amean's appointment as Acting Administrator is not his doing.
  4. Mr Amanu also raises the issue of whether the Court Orders declaring Dr Samson Amean as Acting Provincial Administrator until final order was made, is a valid order or not. His Honour Gavara-Nanu .J's Orders of 28th July, 2009 states this;

"1. Stay is granted against the implementation of the National Executive Council's decision made on 17 July 2009 to appoint Kundapen Talyaga as the Provincial Administrator of Enga Province.


2. Dr. Samson Amean shall continue as the Acting Provincial Administrator of Enga Province pending determination of substantive Judicial Review.


3. The matter is returnable for Directions Hearing on Monday, 10 August 2009.


4. The Plaintiff's Costs of and incidental to the application for leave and stay shall be borne by the defendants.


5. Time for entry of these orders shall be abridged."


  1. I have pointed out above that it was the Acting Chairman of the PSC's letter of 13th September, 2007, that conveyed the decision to appoint Dr. Amean as the Acting Provincial Administrator. The interim injunctive orders are temporary only and are to remain until a decision after a substantive hearing. It is to maintain the status quo only. It was not the PEC that recommended Dr. Amean's appointment as Acting Administrator. It was the PSC that took that step. No doubt, Mr Amanu's submissions are incorrect, misconceived and misleading.

Conclusion


  1. I find that all grounds of the review have been made out. The plaintiffs have sought certain orders in the originating process filed.
  2. Can I make these orders?
  3. It is settled in this jurisdiction that even if the Court is minded to uphold the ground of review, it does not necessarily follow that the Court will grant the relief sought. (Mission Asiki v. Manasupe Zurenouc & Ors (2005) SC 797).
  4. It is a two-stage decision making process. First, the plaintiffs must establish one or more grounds of judicial review sought.
  5. If that succeeds, then the second stage of the process involves persuading the Court that it should be granted the remedy sought (Dale Christopher Smith v. Minister for Lands (2009) SC 973).
  6. Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v. Sir Michael Somare (2008) N3476).
  7. I agree with Mr Stevens that confusion has been created by the NEC's decision, confusion leading to the inability of the Enga Administration to carry out its duly mandated functions as portrayed by the evidence before me where parties have had to come to Court to obtain orders to enable the performance of their administrative duties and functions. That should never be allowed to happen. It has become the norm in this country for administrators in Provincial Governments to challenge each other for the right to hold office, using the Courts as their arbitrator. In my view, if the administrators, who are tasked to carry out duties as provided in legislation, perform their duties as delegated to do so, the process of administration will not be hampered by time consuming, expensive Court battles. The offices they hold belong to the people. They are there for the people and must be seen to be doing so.
  8. The applicants urge the Court to grant the reliefs sought for the reason that the confusion now created by the NEC's decision and the ensuing hardship in administration deposed to in the affidavits of Dr. Amean cannot be corrected unless the NEC's decision is quashed by this Court.
  9. On the relief of prohibition, the Court is referred to the principles discussed by the Court in PNG Harbours Board Ltd v. Pex Avosa (2006) N306.
  10. Essentially, prohibition is available in judicial review where the public authority lacks jurisdiction conferred by law, to entertain a matter in which it lacks jurisdiction.
  11. In this case, the order sought is to prohibit the NEC from making another decision regarding the Provincial Administrator's position until the PEC of Enga has fully dealt with the matter in accordance with law.
  12. I accept that prohibition is necessary, given the manner in which the decision in question was made. Therefore, a properly constituted PEC must now decide the matter as soon as the consultation process with the PSC is completed. For good administration in the Province, I urge that this be done as soon as possible.
  13. As the grounds of review have all been made out, I will grant the orders sought.

Formal Orders


  1. Therefore, the Court orders as follows;

_____________________________


Stevens Lawyers: Lawyer for the first and Second Plaintiffs
Kelly Naru Lawyers: Lawyer for the Second Defendant
Solicitor-General's Office: Lawyer for the First and Third Defendant

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