Mulou v Commissioner of Police [2012] PGNC 374; N4496 (13 January 2012)

N4496

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 329 OF 2011

BETWEEN:

CHIEF INSPECTOR RICHARD MULOU FOR HIMSELF & FOR THE OTHERS LISTED IN SCHEDULE 1 ATTACHED TO THE SUMMONS
Plaintiff

AND:

THE COMMISSIONER OF POLICE, ANTHONY WAGAMBIE
First Respondent

AND:

THE DEPUTY COMMISSIONER OF POLICE – ADMINISTRATION,
THOMAS KULUNGA
Second Respondent

AND:

THE ASSISTANT COMMISSIONER OF POLICE – HUMAN RESOURCE, ALFRED REU
Third Respondent

AND:

THE CHAIRMAN OF THE POLICE PROMOTIONS BOARD, REVERAND SOMMY SETU
Fourth Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Manuhu, J
2012: 6 & 13 January

JUDICIAL REVIEW – Police Act 1998 - Promotion procedures of Royal PNG Police Constabulary – Police Promotions and Selection Board – Police Commissioner removed names of members recommended for promotion – Appropriate remedy.

No case cited in the judgment.

Counsel:

M. Maitang, for the Applicants

13 January, 2012

1. MANUHU, J: The Applicants seek a review of the decision of the Commissioner of Police (Commissioner) to promote certain officers in the Royal PNG Police Constabulary (Constabulary) against the recommendations of the Police Promotions Selection Board (Board).

2. Positions within the Constabulary were advertised internally in December 2010. The Applicants and other officers applied for the positions. The Board convened and considered the applications. A list of names recommended for promotions to various positions by the Board was submitted to the Commissioner. The Applicants' names were on the list. However, the Commissioner deleted the Applicants' names and caused the amended list to be published in Police Gazette No. 1 of 2011. The publication means that the Applicants missed out on the promotions.

3. The issue therefore is whether the Commissioner had the power to remove the Applicants' names from the published list.

4. Chief Inspector Mulou was acting Provincial Police Commander, West New Britain Province. The Board recommended that he be promoted to Superintendent and be made substantive Provincial Police Commander, West New Britain Province. However, his name was removed by the Commissioner.

5. Chief Inspector Joseph Goloki was acting Superintendent and Acting Director – Traffic at Police Headquarters, Konedobu. He was recommended by the Board for promotion to Superintendent and substantive Deputy Director – Traffic. However, his name was removed by the Commissioner.

6. Senior Inspector Paul Unupite was acting Chief Inspector and Senior Instructor at Bomana Police College. He was recommended for promotion to the position of Chief Inspector. However, his name was removed by the Commissioner.

7. Senior Inspector Lincoln Gerari was Acting Provincial Police Commander, Milne Bay. He was recommended for appointment as Chief Inspector and Provincial Police Commander, Milne Bay. However, his name was removed by the Commissioner.

8. Chief Sergeant Bobby Wila Alisa was attached to the Police Prosecution Training Unit and was acting second in charge. He was recommended for promotion to the position of Inspector and be second in charge of the unit. His name was removed by the Commissioner.

9. Chief Inspector Miriam Yawa was acting Superintendent. She was recommended for substantive appointment. However, her name was removed by the Commissioner.

10. Chief Sergeant Joseph Koi was acting Course Manager at the Detective Training School in Bomana Training College. He was recommended for promotion to the position of Inspector and that he be acting OIC-CID Training. His name was however removed from the list by the Commissioner.

11. Other Applicants affected in similar manner were Superintendent Anthony Mota, Senior Inspector Charles Parinjo, Inspector Kelei Martin, Inspector David Siene, Inspector Florian Luui, Inspector Maurice Hitoro, Chief Sergeant Micah Yosman, Director Corporate Joanne Clarkson, and Officer in Charge Traffic Kathy Dobb.

12. The procedure for the promotions of members of the Constabulary is set out in the Police Act 1998. Section 48 (2) states that a decision to promote a member shall be made in accordance with procedures that is fair and equitable, including selection on the basis of the merits; and unjust discrimination should be prevented. These are matters that the Board would have taken into account when it made the recommendations in relation to the Applicants.

13. Under subsection (6), merit of a member comprises of the integrity, diligence and good conduct of a member; the potential of the member to discharge the duties of the position in question; the industry shown by the member in the performance of the duties of office in the course of the member's career; and the physical and mental fitness of the member to perform the duties of the position in question.

14. Under subsection (7), for the purpose of determining the potential of a member to discharge the duties of a position, factors to be taken into account include the performance of duties of office in the course of the member's career; the range of practical experience of the member; the ability, aptitude, skill, knowledge and experience determined by the Commissioner to be necessary for the proper performance of the duties of the position in question; and, any relevant academic, professional or trade qualifications of the member.

15. Section 50 provides that where a vacancy occurs in the Constabulary and if the Commissioner is of the opinion that the vacancy could suitably be filled by the promotion of a member, the Commissioner may in his discretion, promote a member to that position in accordance with section 50.

16. There are requirements under section 50 for the Commissioner to meet before a promotion can be made. It is mandatory for the Commissioner to refer a promotional matter to the Board. The Commissioner is also required to give notice in an Official Police Publication that it is intended that a meeting of the Board will be held on a certain date and at a certain place to consider the matter. The Commissioner is further required to call for applications from members who wish to be considered for the promotion.

17. Section 51 establishes the Board. It comprises of a permanent Chairman who shall sit with not more than two assessors. The Chairman and assessors of the Board are not, while acting as such, subject to direction or control by any person or authority under the Act. Any person would, in my view, include the Commissioner.

18. Under section 52, the functions of the Board are to consider applications for promotion to vacancies and to make recommendations to the Commissioner in accordance with Section 53.

19. Section 53 is entitled "Promotions through the Board". It provides:

"(1) The Police Promotions Selection Board shall—

(a) consider all members of the Regular Constabulary Branch who are qualified and apply for promotion to a vacancy; and

(b) make a recommendation to the Commissioner in accordance with this section as to the filling of each vacancy.

(2) The Commissioner shall give or cause to be given to the Board all files, reports and documents, and any other information, relevant to all members of the Regular Constabulary Branch who are qualified for promotion to the vacancy.

(3) The Police Promotions Selection Board shall make full inquiries, without regard to legal forms or solemnities into the matter of the filling of the vacancy.

(4) On receipt of a recommendation under Subsection 1(b), the Commissioner shall—

(a) accept the recommendation and take action accordingly; or

(b) refer the matter, together with his reasons for not accepting the recommendation, back to the Police Promotions Selection Board concerned for reconsideration and a further recommendation.

(5) On receipt of a further recommendation under Subsection (4)(b), the Commissioner shall—

(a) accept the further recommendation and take action accordingly; or

(b) refer the matter for decision by the Minister, together with all relevant papers setting out the Board's recommendations and the reasons for his rejection.

(6) The decision of the Minister under Subsection (5) (b) is final and shall be implemented by the Commissioner." (my emphasis)

20. The Act clearly prescribes the promotion procedure for the Commissioner, the Board and the Minister responsible to follow. The Court will be guided by the same provisions to determine the issue at hand. In that regard, it is necessary to note that the Commissioner cannot unilaterally promote a member of the Constabulary. His decision to promote a member must be in line with the Board's recommendation. Where he disagrees with a recommendation, the matter ought to be referred back to the Board.

21. Secondly, the merits of the recommendations, as far as the Applicants are concerned, are not for the Court to dwell into. The Act gives that authority to the Board in conjunction with the Commissioner and the Minister responsible to deal with. The Court is only concerned with whether the Commissioner had the power to delete the Applicants' names from the Board's list.

22. As mentioned, the Applicants take issue with the Commissioner's decision to amend and delete their names from the list provided to him by the Board. The Commissioner then caused the amended list to be published thereby excluding the Applicants from being promoted as recommended by the Board.

23. The Applicants argue the Commissioner's list is a nullity in that the list did not comply with section 53 (4) (b). Consequently, 557 members that were promoted by virtue of the defective list were not duly appointed. It is submitted that in view of the Commissioner's differing view, the Board's list should be returned to the Board for further consideration in accordance with section 53 (5) (a) or (b), as the case may be.

24. The Applicants' argument appears convincing at first. However, on closer examination, I find myself with a different view. I do not agree, with respect, that deleting the Applicants' names, which is contrary to section 53 (4) (b), should invalidate the Commissioner's list and, consequently, the promotion of other members. A promotion is not made on the basis that a member's name is or is not in a particular list. There is no statutory basis for prominence to be given to any list.

25. My view is that each recommendation should be treated separately. A recommendation stands on its own. Each member is entitled to apply for a position. The Board considers all applications and recommends one member to be promoted to that position. Such recommendation is made individually. Such recommendation need not be accompanied by other recommendations in relation to other members even if in practice the Board usually produces a list. A promotion then takes effect in relation to that member alone.

26. My view is supported by the relevant provisions of the Act but I will limit my observations to section 53. References to 'vacancy' and 'recommendation' in section 53 are all in singular forms. Section 53 (1) (a) empowers the Board to consider applications by qualified members for promotion to "a vacancy" and then recommends to the Commissioner as to the filling of "each vacancy". Subsections (2) and (3) refer to "the vacancy". Subsection (4) refers to "a recommendation", "the recommendation" and "a further recommendation". Subsection (5) refers to "a further recommendation" and "the further recommendation". The plural "recommendations" in subsection (5) (b) is understandable. There would already be a number of names and "recommendations" for the Minister responsible to consider by the time a matter is referred to him.

27. Construing the provision in this way also makes administrative sense. It serves no purpose for the entire list to be remitted back to the Board just because the Commissioner does not agree with one or some recommendations. The Commissioner is quite entitled to cause promotions for members who have been recommended for promotion by the Board.

28. The Commissioner is, however, not entitled to delete names of members recommended by the Board for promotion and do nothing about them. It is mandatory for the Commissioner to remit a rejected recommendation with his reasons back to the Board in accordance with section 53 (4) (b). This is where, in this case, the Commissioner failed to carry out his statutory duty under section 53 (4) (b) and I so find.

29. What then is the appropriate remedy? The Applicants seek to nullify the Police Gazette No. 1 of 3 January 2011. For the given reasons, this is not an appropriate remedy.

30. The Applicants also seek an order that the promotion process under sections 50 to 54 be complied with. In view of the conclusion the Court has reached, it is appropriate for each recommendation on each Applicant to be remitted to the Board for their further consideration in accordance with section 53 (4) (b) and the Act. This should be accompanied by the reasons, if any, for the rejection by the Commissioner.

31. I take judicial notice of the fact that Anthony Wagambie is no longer the Commissioner. The statutory obligation now falls upon the current Commissioner and the remaining Respondents to take appropriate action and ensure compliance with the Act.

31. The following orders are therefore appropriate:

1. The (current) Commissioner of Police shall forward each recommendation for promotion pertaining to each Applicant to the Police Promotions Selection Board for a further consideration in accordance with section 53 (4) (b) of the Police Act 1998 forthwith.

2. The Police Promotions Selection Board shall, upon receipt of the recommendations, consider each matter in accordance with section 53 (4) (b) and the Act generally.

3. The Respondents are directed to ensure that section 53 is complied with in respect of each Applicant.

4. Cost follows the event which, if not agreed, shall be taxed.

________________________________________________________________
Mirupasi Lawyers: Lawyer for the Applicants