Kora v State [2013] PGNC 58; N5230 (4 June 2013)

N5230

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 246 OF 2013

BETWEEN

DR PETER KORA
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Makail, J
2013: 04th June

JUDICIAL REVIEW: Application for leave – Leave to apply for judicial review – Review of decision to suspend departmental head – Procedure for suspension – Alleged error in the process of suspension – Whether arguable case established – Public Services (Management) Act, 1995 – S. 31D – National Court Rules – O 16, r 3(1),(2)&(8)(a).

Cases cited:

Isaac Lupari -v- Sir Michael Somare & The State (2008) N3476

Counsel:

Mr F Griffin for Plaintiff
Mr I Geita for Defendant

RULING

04th June, 2013

1. Makail, J: The plaintiff Dr Peter Kora is the Departmental Head of the Department of National Planning and Monitoring, having being appointed to that position by the National Executive Council ("NEC") on 18th August 2011. It was for a term of four years and on 28th March 2012, signed a contract of employment ("contract") with the defendant formalising the appointment.
.
2. On 01st May 2013, he was suspended by the NEC on grounds of abuse of office, which among others, as Chairman of the National Forest Board fraudulently and unlawfully approved timber projects in Madang and West Sepik provinces. In his place, Mrs Julianna Kubak was appointed to act as Departmental Head. Aggrieved by the decision to suspend him, on 13th May 2013, he filed an application for judicial review to ask the Court to review that decision. He applies for leave to review that decision and also to stay that decision pending the determination of the application for judicial review (if leave is granted) pursuant to O 16, r 3(1),(2)&(8)(a) of the National Court Rules.

3. For the application for leave, relying on the Statement in Support made pursuant O 16, r 3(2)(a), he demonstrates that he has an arguable case that justifies further consideration by the Court and leave should be granted because first, the procedure for suspending him under s. 31D of the Public Services (Management) Act, 1995 was not followed by the defendant. It is flawed and such a flaw is so fundamental that he has been denied the right to response to the allegations against him. He submits that his suspension will only occur after the Public Services Commission, being the only authorised body to investigate Departmental Heads, completes its investigation and submits a recommendation to the NEC to suspend him. He further submits that he was suspended based on a directive from the Minister for National Planning and Monitoring purportedly because of an investigation report prepared by a third party. That report falls outside the procedure set out in s. 31D and should have never been considered and acted upon by the Minister and NEC. He concludes by submitting that the procedure for suspension must be strictly complied with as was held by Injia, DCJ (as he then was) in Isaac Lupari -v- Sir Michael Somare & The State (2008) N3476.

4. Secondly, following on from the first ground, he submits that if the defendant seeks to rely on clause 26.3 of the contract of employment to justify its actions and decision to suspend him, clause 26.3 it inconsistent with the s. 31D of the Public Services (Management) Act, 1995. Where there is a conflict between a Statute and contract, the former prevails and the Court should uphold the procedure set out in s. 31D of the Public Services (Management) Act, 1995.

5. As to the application for stay, he submits that if leave is granted, it is open to the Court under O 16, r 3(8)(a) of the National Court Rules to also grant a stay. In any case, he has sufficiently demonstrated that he has an arguable case and a stay of the suspension will help maintain the status quo until the determination of the application for judicial review. Further to that, the person occupying the office Mrs Kubak is only acting while he is on suspension and under investigation. If a stay is granted, it will not adversely prejudice the defendant, in particular Mrs Kubak because she will revert to her substantive position in the department and he will return as Departmental Head.

6. The defendant counters these submissions, saying that there is no arguable case because clause 23.6 of the contract does provide for the plaintiff's suspension prior to the conclusion of the investigation. Based on this, the NEC acting on the recommendation of the Minister responsible, suspended him. If leave is granted, it will serve no purpose because the investigation is currently underway and the Court should not intervene. Indeed, the plaintiff was invited to meet with the Chairman of the Public Services Commission ("PSC") and he did on 11th December 2012. He did provide his response. If the Court intervenes now, it will hinder the investigation. Additionally, grant of leave and stay will adversely prejudice the defendant because Mrs Kubak is occupying the position of the plaintiff at the moment and that there is likelihood that he will interfere with the investigation.

7. The general principle is that the Court should be slow in or exercise restraint from interfering with decisions of the executive government or administrative bodies. It should be mindful that it is within the prerogative of the executive government or administrative bodies to make decisions that concerns their affairs. It is even urged not to intervene when there are investigations about to commence or are underway or even about to be completed. Indeed, it should be very rare for cases of such nature to come to Court. They should be left alone. The aggrieved party must demonstrate that he or she is not a "busy body", just coming to Court and wasting the Court's time. This is why an aggrieved party must ask for leave from the Court to review the action or decision of the relevant decision making body.

8. There is no issue as to the standing of the plaintiff. Both applications have been promptly filed and moved. Departmental Heads are no ordinary civil servants and should be treated with respect. I express this sentiment because they are top bureaucrats in our public service system. They are leaders and heads of various departments in the public service system and it is assumed that they are appointed by the executive government based on their years and years of experience either in the public service or private sector employment and knowledge. Their standing in the society does also count and so if they are to be removed for one reason or another, I suggest that they should be treated in the same way as they are appointed. The executive government should be fair in the way it removes them because after all, it benefited from their services during their time of service to the State and Papua New Guinea.

9. For example, suspending them as in the case under consideration, strict adherence to the procedures for suspension must be observed. There is no room for complacency or excuses. We have laws and must respect them and the procedure for suspending a Departmental Head is set out in s. 31D of the Public Services (Management) Act, 1995. It states:

"31D. Procedures relating to suspension from office of Departmental Heads.

The procedures relating to the suspension from office of Departmental Heads referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows: -

(a) the Commission –

(i) may, on its own volition; or

(ii) shall, at the request of the Minister responsible for Public Service matters,

investigate any activities, conduct or performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into by that Departmental Head under Section 28;

(b) where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommend to the National Executive Council;

(c) on receipt of a recommendation under Paragraph (b), the National Executive Council shall advise the Head of State to suspend the Departmental Head from office."

10. Although the plaintiff alleged that there is no report on the investigation, he does not deny providing his response to the PSC. Indeed he met with the Chairman of PSC on 11th December 2012 and handed to him a letter of response to the allegations. The PSC was prompted to carry out investigation because of the report by the third party which in my view is not actually an investigation report as contended by the plaintiff but a complaint. It may also appear suspicious that the plaintiff was suspended on the directive of the Minister responsible but here is the Minister responsible bringing to the attention of PSC allegations of abuse by his Departmental Head. The PSC is the authorised body to investigate and it appears it is carrying out its investigation. According to s. 31D, suspension of a Departmental Head may occur in two instances. One by the PSC on its own volition or two by the PSC at the request of the Minister for Public Service. It appears the former applies in this case as a result of the complaints by a third party and the Minister responsible.

11. I am not overwhelmingly satisfied that it can be argued and sustained that the suspension of a Departmental Head will only take place after the PSC completes its investigation and recommends to the NEC. If that is so, Parliament would have said so by using the words "upon completion of its investigation" in sub-section (b) of s. 31D. On the plain reading of the phrase "where, as a result of its investigation, ....." it simply means is that if there is an investigation against a Departmental Head, the PSC may recommend to the NEC to suspend the Departmental Head any time. It can be during the investigation or at the conclusion of the investigation. This view is fortified by clause 26.3 of the contract which in my view is not inconsistent with s. 31D.

12. Clause 26.3 of the contract states:

"The Public Service Commission shall investigate the allegations. Where as a result of the investigations the Commissions is of the opinion that the Departmental Head should be suspended pending the laying of charges or the conclusion of an investigation, it will so recommend to the NEC. The NEC, on receipt of such a recommendation, will recommend to the Head of State to suspend the Departmental Head and the Head of State will effect the suspension. This suspension will be on full pay and entitlements and the NEC shall determine the time required to conclude investigations and/ or disciplinary proceedings against the Departmental Head."

13. The laying of the charges is the end result of the investigation if the investigation reveals a case of abuse of office. For the time being, suspension is in order.

14 For these reasons, I am not satisfied that leave should be granted. It is refused. In light of this ruling, there is no need to consider the application for stay. Costs shall follow the event.

Ruling accordingly.
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Young & Williams Lawyers : Lawyers for the Plaintiff
Acting Solicitor-General : Lawyers for the Defendant