Kulangil v Malabag [2016] PGNC 320; N6521 (16 November 2016)

N6521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 364 OF 2016

BETWEEN
GARRY KULANGIL, ROBERT POSU &FR. ROBERT GIGMAI IN THEIR CAPACITY AS MEMBERS OF THE MENDI PROVINCIAL HOSPITAL BOARD
Plaintiffs

AND

HONOURABLE MICHAEL MALABAG IN HIS CAPACITY AS MINISTER FOR HEALTH AND HIV/AIDS
First Defendant

AND

HONOURABLE WILLIAM POWI IN HIS CAPACITY AS THE GOVERNOR FOR SOUTHERN HIGHLANDS PROVINCE
Second Defendant

AND

THE SOUTHERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY BOARD
Third Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J

2016: 16^th November

JUDICIAL REVIEW – Review of appointment of members of Provincial Heath Authority Board – Process of Appointment considered – Appointment process begins with nomination of persons – Nominees nominated by interest groups or organisations prescribed in Section 17 (2) (a) to (f) – Consultation process between Minister and Governor of Province – Provincial Health Authorities Act, 2007 – Section 17

Cases cited:

Nil

Counsel:
Mr.A.Ona, for Plaintiffs
No appearance, for First, Second, Third & Fourth Defendants

Mr. E. Geita, for the Fifth Defendant

JUDGMENT

16^th November, 2016
1. MAKAIL, J: The Plaintiffs are applying for judicial review of the decision of the Fourth Defendant of 17^thMarch 2016 to appoint members of the Board of the Southern Highlands Provincial Health Authority pursuant to Order 16 of the National Court Rules.

2. They are former members of the Board and by that decision, were replaced by the following:
(a) Dr. Goa Tau representing Department of Health,
(b) Mr.Ambe Keleli representing District Affairs,
(c) Mr. Joe Kunukunu representing Local Business Sector,
(d) Mr. Jacob Iki representing Local Business Sector,
(e) Mr. Alex Awesa representing Local Business Sector,
(f) Bishop Wesis Porop representing Local Religious Denominations,
(g) Ms. Gloria Rami representing Women in the Community,
(h) Mr. Peter Nupiri representing General Community, and
(i) Rev. Mondopa Mini representing General Community.

3. In addition, Peter Nupiri was appointed Chairman and Alex Awesa was appointed Deputy Chairman. The appointment of the new members, Chairman and Deputy Chairman was gazetted in the National Gazette on 2^nd June 2016. The appointment is said to be made under Section 17 (2) (a) to (f) of the Provincial Health Authorities Act, 2007 (“The Act”). Section 17 states:

“17. Constitution of Boards.

(1) Subject to this section, a board shall consist of a maximum of nine members appointed, on the nomination of the Minister, by the Head of State, acting on advice.

(2) After consultation with the Governor of the province or Governor of National Capital District, as the case may be in which the provincial health authority is located, the Minister shall nominate nine members for appointment to a Board under Subsection (1) of whom —

(a) one is a representative of the National Department of Health nominated by the provincial administrator or manager as the case may be; and

(b) one has knowledge and experience of district affairs in the province and is nominated by the provincial administrator or manager as the case may be; and

(c) three are experienced members of the local business sector nominated by the provincial Chamber of Commerce and Industry or like organisation, or where no such organisation exists, as nominated by the Minister; and

(d) one is member of a local church run or Christian organisation nominated by the Church Medical Council or like organisation; and

(e) one is a woman with a high level understanding of issues for women of the province nominated by the Provincial Women's Organisation or like organisation; and

(f) two are members of the local community appointed by a panel consisting of the Chief Executive Officer, the provincial administrator or manager as the case may be and a representative of the local community.

(3) If the Minister is satisfied that —

(a) reasonable steps have been taken to locate suitably qualified persons; and

(b) no persons have been located in the province who are suitably qualified and available for one or more of the positions on the board as required in Subsection (2),

the Minister may nominate less than nine members for appointment to the Board.

(4) A vacancy in board positions created by operation of Subsection (3) may be filled as soon as —

(a) reasonable steps are taken to locate a person or persons in the province who are qualified and available to fill such vacant position or positions; and

(b) a person or persons are located who are qualified and available for any or all vacant positions; and

(c) the Minister is informed that a person or persons have been nominated in compliance with Subsection (4) to a vacant position or positions on the board.

(5) A Board constituted under Subsection (1) shall also include, as an ex officio member the provincial administrator or manager as the case may be who shall be an advisory member of the Board.

(6) The person appointed as an advisory member of the Board under Subsection (5) shall be entitled to attend all meetings of the Board of which he or she is a member and shall be entitled to take part in debate but shall not vote on any matter or be counted towards a quorum.”

4. The Plaintiffs alleged that the list of nominees submitted by the Southern Highlands Provincial Executive Council (“PEC”) is contrary to Section 17 (2) of the Act, 2007. That is, the First Defendant did not receive or obtain names of nominees from the organizations prescribed in Section 17 (2) (a) to (f) of the Act. The names of nominees must come from:

(a) Department of Health,
(b) District Affairs,
(c) Local Business Sector,
(d) Local Religious Denominations (Churches),and
(f) Local Community.

5. In addition, each of these organizations must nominate to the First Defendant, a person or representative to be considered for appointment as a member of the Board. They did not because they were not asked or invited to do so.

6. According to the Plaintiffs, the process of appointment of members of the Board starts with the nomination and according to the process of appointment prescribed by Section 17, the nomination process is facilitated by the Department of Health and HIV/AIDS and the Southern Highlands Provincial Administration in consultation with the respective organisation.

7. They alleged that this nomination process was not complied with. Instead the PEC convened a meeting on 14^th September 2014 and approved the names of nominees and submitted it to the Fourth Defendant through the First Defendant and the Fourth Defendant endorsed or approved their appointment.

8. The evidence establishing these allegations are stated in the various affidavits of the Plaintiffs and heads of the interest groups or organisations.

9. The Plaintiffs alleged that the First Defendant acted ultra vires his powers when he accepted the list of nominees from the PEC because the PEC is not one of the organizations prescribed in Section 17 (2) (a) to (f) to nominate persons or representatives for appointment. They contended that the decision is tainted by procedural impropriety because the process of appointment of Board members was flawed from the start when the First Defendant accepted the list of nominees from an authority, namely the PEC which did not have authority to nominate persons or representatives to the First Defendant for appointment.

10. Secondly, there is no evidence that the various organizations prescribed in Section 17 (2) (a) to (f) submitted their nominees to the First Defendant. In fact, he had no list of nominees from these organisations to submit to the Fourth Defendant for approval. This is where it was pointed by the Plaintiffs that the First Defendant committed an error of law.

11. Except for the Fifth Defendant, the rest of the Defendants did not show any keen interest in defending this matter nor did they attend trial even though there is evidence of service of this proceeding on them: see affidavit of service of Benny Mini filed 19^th October 2016 – service on the Second Defendant; affidavit of service of Henry A. Mega filed 10^th October 2016 – service on First Defendant; affidavit of service of Henry A. Mega filed 10^th October 2016 – service on Third Defendant and affidavit of service of Henry A. Mega filed 10^th October 2016 – service on Fourth Defendant.

12. The Fifth Defendant opposed the application for judicial review contending that there is nothing wrong with the process of appointment of the new members of the Board and the complaint by the Plaintiffs that the PEC should not have been involved in the appointment process is misconceived.

13. While conceding that Section 17 (2) does not state that the PEC must be consulted in the nomination and/or appointment of the members of the Board, the PEC only recommends names of nominees to the First Defendant following consultation between the First Defendant and the Second Defendant.

14. As part of the consultation process under Section 17 (2), and owing to local knowledge of nominees, the Second Defendant consults the PEC on the nominees and where approved, submits the names to the First Defendant to forward on to the Fourth Defendant for consideration and approval. It is all part of the consultation and appointment process.

15. From my reading of Section 17 of the Act, the process of appointment starts with nomination of persons to be considered for appointment to the Board. The question is, who nominates the nominees? I must agree with the Plaintiffs that it is the organisations prescribed in Section 17 (2) (a) to (f) and no other. These organisations have been identified by the Plaintiffs at [4] above. There is no mention of the PEC. So that rules out the PEC when it comes to nominations of persons for consideration for appointment to the Board.

16. Though it is said that the list of nominees is submitted to the Minister, it is assumed that it goes through the Department of Health and HIV/AIDS. This completes the nomination process. After nomination, the next stage is the consultation process where the Minister consults the Governor of the Province.

17. This is where the submissions by the Fifth Defendant that the PEC is consulted at the same level as the Governor of the Province is a difficult one to accept and must fail for one main reason and that is that, again, the PEC is not stated in Section 17 as one of the authorities that must be consulted before names of nominees are submitted to the First Defendant or the Fourth Defendant through him for consideration for appointment. If that was envisaged, I am certain, Section 17 would have stated so.

18. On the other hand, Section 17 is clear. After consultation with the “Governor of the Province”.... the Minister shall nominate nine members for appointment to the Board.

19. The local knowledge argument does not take the defence case any further because it is taken care of by the requirement that persons who are nominated for consideration for appointment are nominated by the organisations prescribed in Section 17 (2) (a) to (f). There, one will find that the organisations are locally based, in this instance, in the Southern Highlands Province and will and would have sufficient local knowledge or first-hand information of the nominees before nominating them to the First Defendant.

20. Then the consultation between the First and Second Defendants will further address any issues that may arise concerning each nominee submitted by their respective organisations. So really, the nomination by the respective relevant organisations or groups takes care of the concerns of the defence and better still, the consultation between the First and Second Defendant which is really at the political level also puts to rest the concerns raised by the defence on the suitability and competency of the nominees.

21. For these reasons, I am satisfied that the First Defendant has acted ultra vires his powers when he accepted the list of nominees from the PEC and not a list from the organisations or groups prescribed in Section 17 (2) (a) to (f). I am further satisfied that he committed an error of law when there is no evidence that the various organizations prescribed in Section 17 (2) (a) to (f) submitted their nominees to him. I further find as a matter of law, he had no list of nominees from these organisations to submit to the Fourth Defendant for approval. This is where he fell into error. These grounds are upheld.

22. The Plaintiffs relied on a further ground. They alleged that the Second Defendant breached the principles of natural justice in that the persons nominated by the PEC and submitted to the First Defendant were not approved by the respective interest groups or organisations prescribed in Section 17 (2) (a) to (f). It is important that these interest groups or organisations be given that opportunity to identify a suitable nominee so that the nominee can be given the opportunity to accept or reject the nomination. This was not done and as a result, it is not known whether the new members were consulted and given that opportunity before being appointed. This is an important consideration because three of the members are local businessmen and represent local business community and may have conflict of interest sitting on the Board.

23. The Fifth Defendant contended that this ground is vague as it does not specify the relevant provision of the Act which gives the Plaintiffs and the interest groups or organisations a claim to a right to be heard under the principles of natural justice on behalf of the nominees.

24. I can see the point of the Plaintiffs’ complaint under this ground but it is a difficult proposition. There is nothing in the Act which gives the Plaintiffs and the interest groups or organisations a claim of right to be heard. Their complaint is adequately addressed by the fact that they have been denied the opportunity to submit their nominees to the First Defendant for consideration. In my view, that is sufficient for now. This ground is dismissed as being misconceived.

25. Finally, the Plaintiffs alleged that according to the Wednesbury principles of unreasonableness, the decision is unreasonable. This case is highlighted by the flagrant breach of the appointment process despite it being clearly laid down in the Act. It was a case where the Second Defendant and the PEC hijacked it by by-passing the interest groups or organisations of whom are mandated by law to nominate persons or representatives for consideration for appointment and submitted a list of nominees to the Minister which was subsequently approved by the Fourth Defendant.

26. The Plaintiffs contended that based on the circumstances leading up to the decision, it is sufficient for the Court to infer and find that the Second Defendant acted in bad faith; such conduct tainted the entire decision-making process and the decision must be set aside. The Fifth Defendant contended otherwise saying that there must be direct evidence to establish bad faith. Circumstantial evidence is not sufficient and this ground should be dismissed.

27. It is undeniable that the interest groups or organisations mandated by law under Section 17 (2) (a) to (f) were not part of the appointment process because they did not participate in the nomination of the persons or representatives to the Minister. It is quite clear that they were surprised to find out that new members of the Board were appointed.

28. It is also undeniable that the new members who were appointed came out of the list submitted by the PEC, except for Dr. Goa Tau and Mr.Ambe Keleli. As was found the PEC has no place in the appointment process. For the Second Defendant to bring the PEC into the appointment process and get it to consider and approve the list of nominees without obtaining the nominees from the interest groups or organisations mandated by law cannot be described as an accidental slip in the appointment process by the Second Defendant. I accept the Plaintiffs’ submission that it is a flagrant breach as it goes to the very foundation of the appointment process. Where the interest groups or organisations are left out in that process, particularly where the process starts with them as they are responsible for the nomination of nominees, the whole process of appointment resulting in the decision must be tainted and must fail. It is what the Plaintiffs have described, as “hijack” of the appointment process.

29. I am not aware of any law that says that there must be direct evidence to prove bad faith. Neither did counsel for the Fifth Defendant refer to any, at the very least a case authority to support his submission that I should only find against the Second Defendant that he acted in bad faith based on direct evidence. That being the case, I am satisfied that I can find based on the circumstantial evidence and for the reasons as stated above, that the decision was motivated by bad faith on the part of the Second Defendant and must be set aside on this ground.

30. In terms of remedy, the Plaintiffs are seeking orders in the nature of certiorari, declaration and mandamus. These orders are set out in the Notice of Motion filed pursuant to Order 16, rule 5 of the National Court Rules on 4^th August 2016. In essence, an order in the nature of certiorari to bring up to the Court and quash the decision and an order in the nature of mandamus directing the First Defendant to re-do the appointment process. Pending that, the Plaintiffs be restored as members of the Board.

31. The Fifth Defendant contended that except for Dr. Goa and Mr.Keleli, it does not object to the relief sought by the Plaintiffs. As for these two members, they were nominated by their respective organisations and their appointment should not be quashed.

32. There is no evidence to support the Fifth Defendant’s submission in respect of these two members. So I must find in favour of the Plaintiffs that they were not nominated by their respective organisations. In any case, it should be noted that the appointment of the members of the Board was done through one process resulting in one decision. It is for this reason that I shall treat the decision as being collectively made for all the members and as such, I must rule that grant of relief sought by the Plaintiffs must apply to all members.

33. There is no evidence from the Fifth Defendant refuting the Plaintiffs’ claim to their membership to be restored, that such would be adverse to the administration of the Provincial Hospital. As a temporary measure, I am prepared to order the restoration of the Plaintiffs’ membership to the Board pending the completion of the appointment process.

34. The application for judicial review is upheld. The relief sought in the Notice of Motion filed pursuant to Order 16, rule 5 on 4^th August 2016 are granted. The Defendants shall pay the costs of the proceeding, to be taxed, if not agreed.

Judgment and orders accordingly.
____________________________________---------------_________
Ona Lawyers: Lawyer for Plaintiffs
Solicitor-General: Lawyers for Fifth Defendant