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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 2 OF 2020
SYLVESTAR KALAUT
First Applicant
FRED YAKASA
Second Applicant
V
NATIONAL EXECUTIVE COUNCIL
First Respondent
PUBLIC SERVICES COMMISSION
Second Respondent
HONOURABLE SOROI EOE, MINISTER FOR PUBLIC SERVICE
Third Respondent
HONOURABLE BRYAN KRAMER, MINISTER FOR POLICE
Fourth Respondent
DAVID MANNING, COMMISSIONER OF POLICE
Fifth Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent
Waigani: Cannings J
2020: 19th, 25th June
2021: 19th, 22nd January
JUDICIAL REVIEW – review of decisions of Public Services Commission and National Executive Council culminating in appointment of Commissioner of Police and Secretary for Department of Police – qualifications for appointment – whether appointee’s absence of tertiary qualifications renders appointment unlawful – whether appointee free of criminal allegations – whether legality of appointment affected by failure to make Declaration of Office – whether legality of appointment affected by failure of responsible Minister to give report to the Parliament on the appointment – whether real or apprehended bias on part of Minister for Police – whether denial of legitimate expectations of qualified applicants.
Applications were invited for the positions of Commissioner of Police and Secretary for the Department of Police, on the basis that the successful applicant would be appointed to both positions. Eighteen candidates applied for the positions. After a selection process that saw a shortlist of six go from the Department of Personnel Management to the Public Services Commission, the Commission recommended to the National Executive Council that the most suitable candidates in order of preference were Sylvestar Kalaut, Fred Yakasa and David Manning. The same opinion was expressed by the Permanent Parliamentary Committee on Appointments. The Minister for Public Service and the Minister for Police then submitted a statutory business paper to the National Executive Council recommending that one of those three be appointed. The National Executive Council made the decision to advise the Governor-General to appoint David Manning to the two positions. On 10 December 2019 the Acting Governor-General appointed David Manning as Commissioner of Police and Secretary for the Department of Police for a period of four years, in accordance with that advice. Sylvestar Kalaut and Fred Yakasa were aggrieved by the appointment of David Manning. Having been granted leave by the court, they applied for judicial review of the decision of the National Executive Council to advise the Governor-General to appoint David Manning as Commissioner of Police and Secretary for the Department of Police. Six grounds of review were set out in the originating statement, numbered in the following paragraphs: (16) breach of procedures prescribed by statute and subordinate legislation, (17) error of law, (18) ultra vires, (19) failure to take account of relevant considerations, (20) real or apprehended bias by the Minister for Police and (21) breach of natural justice. Underlying the grounds of review were seven discrete arguments (which did not correlate neatly with the grounds of review, but which were for the sake of convenience separately numbered by the Court and assessed, prior to formal determination of the grounds of review): (1) David Manning could not lawfully be appointed to the two positions (in particular Secretary of the Department of Police) as he does not possess any tertiary qualifications; (2) David Manning is not free of outstanding investigations or disciplinary proceedings; (3) David Manning did not make the Declaration of Office before entering the duties of office; (4) the responsible Minister did not give a report to Parliament on the appointment of David Manning as required by the Constitution, s 193(2); (5) the Public Services Commission did not take into account that Sylvestar Kalaut and Fred Yakasa satisfied all criteria under the governing Regulation; (6) the decision to appoint David Manning was affected by bias on the part of the Minister for Police; and (7) there was a breach of the principles of natural justice arising from denial of the applicants’ legitimate expectation that the selection criteria, which formed part of the advertisement to which the applicants responded, would be enforced. In response to those six arguments, the respondents argued: (1) there is no requirement that the person appointed as Commissioner of Police have tertiary qualifications; (2) David Manning is in fact free of outstanding investigations and disciplinary proceedings; (3) there is no evidence that David Manning did not make the Declaration of Office before entering the duties of office; (4) there is no evidence that the responsible Minister did not give a report to Parliament as required by the Constitution; (5) the Public Services Commission did take into account that Sylvestar Kalaut and Fred Yakasa satisfied all criteria; (6) there is no evidence that the decision to appoint David Manning was affected by bias on the part of the Minister for Police; and (7) the legitimate expectation principle had no application to the facts and in any event there was no denial of any legitimate expectation of the applicants.
Held:
(1) Six of the seven arguments raised by the applicants were summarily dismissed as being without merit, in that: David Manning has a clean criminal and disciplinary record; there is no evidence that David Manning did not make the Declaration of Office before entering the duties of office; there is no evidence that the responsible Minister did not give a report to Parliament on the appointment of David Manning; the Public Services Commission did take into account that Sylvestar Kalaut and Fred Yakasa satisfied all criteria, including the tertiary qualifications requirement; there is no evidence of real or apprehended bias on the part of the Minister for Police in the appointment of David Manning; and there was no denial of any actionable legitimate expectation of the applicants.
(2) The first argument demanded a full examination, as it is a prerequisite for appointment of any Departmental Head, including the Secretary for the Department of Police (but not for appointment as Commissioner of Police) that a candidate possess tertiary qualifications, due to the combined effect of s 25A of the Public Services (Management) Act and s 1(1)(d) of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003.
(3) David Manning does not possess any tertiary qualifications and was unqualified for appointment as Secretary for the Department of Police.
(4) It was an error of law and ultra vires on the part of the Public Services Commission to, without highlighting the issue surrounding the absence of tertiary qualifications, include David Manning in its preferred list of candidates, knowing that the successful candidate would be appointed to two positions and it being clear that David Manning was not qualified for one of those positions.
(5) It was an error of law and ultra vires on the part of the National Executive Council to advise the Governor-General to appoint David Manning as Commissioner of Police and Secretary for the Department of Police, as David Manning was not qualified to hold office as Secretary for the Department of Police.
(6) The positions of Commissioner of Police and Secretary for the Department of Police are two separate positions. The fact that the position of Commissioner is the dominant position created by the Constitution does not mean that the qualifications for appointment to that position (which do not include possession of tertiary qualifications) override or subsume the qualifications for appointment as Secretary for the Department of Police. Rather it is the case that the qualifications for appointment as Secretary for the Department of Police are in addition to the qualifications for appointment as Commissioner of Police.
(7) There was one decision made by the Governor-General for appointment of David Manning as Commissioner of Police and Secretary for the Department of Police. It would be impractical and undesirable to declare that only his appointment as Secretary for the Department of Police was affected by error of law. The illegality attending his appointment as Secretary for the Department of Police permeated the decision made on his appointment to the two positions.
(8) Declared that the appointment of David Manning as Commissioner of Police and Secretary for the Department of Police was unlawful. Ordered that the appointment is quashed. To allow the respondents time to take steps to avoid uncertainty in superintendence, efficient organization and control of the Police Force, the orders will take effect seven days after the date of the orders.
Cases Cited
The following cases are cited in the judgment:
Application by Herman Joseph Leahy (2006) SC981
Application by John Mua Nilkare [1998] PNGLR 472
Dale Christopher Smith v Minister for Lands (2009) SC973
Edo v Brown (2006) N3071
Edo v Elias (2009) SC988
Hanjung Power Ltd v Marat (2009) N3751
Isaac Lupari v Sir Michael Somare (2008) N3476
Kawi v Tetaga (2006) N3100
Kila Wari v Gabriel Ramoi [1986] PNGLR 112
Luma v Tetaga (2007) N3275
Marat v Hanjung Power Ltd (2014) SC1357
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Namah v Leadership Tribunal (2020) N8415
SC Ref No 1 of 1982, Re Bouraga [1982] PNGLR 178
Yama v Bank South Pacific Ltd (2008) SC921
JUDICIAL REVIEW
This was an application for judicial review of the decision of the National Executive Council regarding the appointment of the Commissioner of Police and Secretary, Department of Police.
Counsel
D L Dotaona, for the Applicants
T Mileng, for the First, Second, Third, Fourth and Sixth Respondents
D Wood & C Joseph, for the Fifth Respondent
22nd January, 2020
1. CANNINGS J: Sylvestar Kalaut and Fred Yakasa apply for judicial review of the decision of the National Executive Council to advise the Governor-General
to appoint David Manning, the fifth respondent, as Commissioner of Police and Secretary of the Department of Police.
2. Applications were invited for those positions during 2019, on the basis that the successful applicant would be appointed to both positions. Eighteen candidates applied. After a selection process that saw a shortlist of six go from the Department of Personnel Management to the Public Services Commission, the Commission recommended to the National Executive Council that the most suitable candidates in order of preference were Sylvestar Kalaut, Fred Yakasa and David Manning. The same opinion was expressed by the Permanent Parliamentary Committee on Appointments.
3. The Minister for Public Service and the Minister for Police then submitted a statutory business paper to the National Executive Council recommending that one of those three be appointed. The National Executive Council made the decision to advise the Governor-General to appoint David Manning to the two positions.
4. On 10 December 2019 the Acting Governor-General appointed David Manning as Commissioner of Police and Secretary for the Department of Police for a period of four years, in accordance with that advice.
5. Sylvestar Kalaut and Fred Yakasa were aggrieved by the appointment of David Manning. Having been granted leave by the court, they now apply for judicial review of the decision of the National Executive Council to advise the Governor-General to appoint David Manning as Commissioner of Police and Secretary for the Department of Police.
6. Their case is based on six grounds of review, which are set out in the originating statement filed under Order 16, Rule 3(2)(a) of the National Court Rules, numbered in the following paragraphs:
(16) breach of procedures prescribed by statute and subordinate legislation,
(17) error of law,
(18) ultra vires,
(19) failure to take account of relevant considerations,
(20) real or apprehended bias by the Minister for Police, and
(21) breach of natural justice.
7. Underlying the grounds of review are seven primary arguments. These arguments do not correlate neatly with the grounds of review and I have found it necessary to unpack them from the grounds, so as to give them proper consideration. The applicants’ primary arguments are:
(1) David Manning could not lawfully be appointed to the two positions (in particular as Secretary of the Department of Police) as he does not possess any tertiary qualifications;
(2) David Manning is not free of outstanding investigations or disciplinary proceedings;
(3) David Manning did not make the Declaration of Office before entering the duties of office;
(4) the responsible Minister did not give a report to Parliament on the appointment of David Manning as required by the Constitution, s 193(2);
(5) the Public Services Commission did not take into account that Sylvestar Kalaut and Fred Yakasa satisfied all the criteria under the governing Regulation;
(6) the decision to appoint David Manning was affected by bias on the part of the then Minister for Police, Hon Bryan Kramer MP (the fourth respondent); and
(7) there was a breach of the principles of natural justice arising from denial of the applicants’ legitimate expectation that the selection criteria, which formed part of the advertisement to which the applicants responded, would be enforced.
8. The respondents to the application for judicial review are:
9. The respondents argue that:
(1) there is no requirement that the person appointed as Commissioner of Police have tertiary qualifications;
(2) David Manning is in fact free of outstanding investigations and disciplinary proceedings and has a clean record;
(3) there is no evidence that David Manning did not make the Declaration of Office before entering the duties of office;
(4) there is no evidence that the responsible Minister did not give a report to Parliament on the appointment of David Manning;
(5) the Public Services Commission did take into account that Sylvestar Kalaut and Fred Yakasa satisfied all criteria;
(6) there is no evidence that the decision to appoint David Manning was affected by bias on the part of the Minister for Police; and
(7) the legitimate expectation principle has no application to the facts, but if it does, there was no denial of any legitimate expectation of the applicants.
ISSUES
10. These are the key issues for determination by the Court:
FACTS
11. Before considering those issues I make the following findings of fact concerning the events of 2019 that culminated in the appointment of David Manning as Commissioner of Police and Secretary of the Department of Police.
12. The term of the previous substantive holder of the offices of Commissioner of Police and Secretary of the Department of Police, Gari Baki, expired in May 2019 Francis Tokura, a senior member of the Police Force based in Bougainville, was initially appointed to those positions on an acting basis. However his acting appointment was revoked and he was replaced by David Manning who served on an acting basis until his substantive appointment in December 2019.
13. The vacant positions of “Commissioner of Police and Secretary for the Department of Police” were advertised in National Gazette No PS.G16 of 1 August 2019 in the following terms:
NOTIFICATION OF A VACANCY UNDER THE POLICE ACT 1998 COMMISSIONER OF POLICE AND SECRETARY FOR THE DEPARTMENT OF POLICE—EXECUTIVE LEVEL 6
Applications are now called for the position of Commissioner for Police and Secretary for the Department of Police. The Government and the National Public Service are equal opportunity employers and encourages both men and women to apply.
Address for Applications to:
The Acting Secretary
Department of Personnel Management
PO Box 519
WAIGANI
Attention: A/Deputy Secretary, Executive Resourcing Service
Closing date: Friday, 16th August, 2019 at 4:06pm
Two (signed) copies of Applications are required. Applications sent by email before the closing date must be followed up immediately with a full written application.
All information provided will be treated in confidence and will not be divulged to any person for any reason other than for the purposes of this application.
APPLICATION MUST INCLUDE THE FOLLOWING INFORMATION:—
Government Gazette Number: Position Number:
Date of Gazette: Position Title: Commissioner of Police – Ex. Level 6
(1) Personal Particulars: —
Surname: Other Names:
Contact address, telephone number, email address
(2) Employment History:—
Current Employer: Location:
Current Position: Position Reporting to: Remuneration in Current Position:
Employment History for at least the past 15 years’ containing a brief description of each level of accountability (supported by relevant certificates of employment or employer reference where available).
(3) Qualifications for this Job:—
Academic Qualifications obtained from Tertiary Institutions (supported by copies of Degrees, etc). Vocational and Management Qualifications relevant to this job (supported by copies of Certificates). Training Course relevant to this job (stating institutions, length of course and year completed).
(4) Claims to the Job:—
State your claims for the job and why you should be selected for the advertised position. State clearly as per the Key Results Areas of the Marape-Steven Government on how you can improve the Police Force.
(5) References/Referees:—
Two (2) professional and two (2) character references are required as well as names of three persons in the past and current employment must be provided.
Job Outline:
The Commissioner of Police shall be responsible for the superintendence, efficient organization and control of the Force in accordance with Police Act 1998.
The Commissioner is appointed by the Head of State on advice as the Head of the State Service, responsible to the Government of the day through the Minister, for the preservation of peace and good order in civil society through enforcement of the law in an impartial and objective manner in all communities throughout the Country as directed by the National Constitution.
The Commissioner is responsible under the Police Act and the Public Services (Management) Act for development of the Uniform and Civilian Branches of the Police Force in accordance with the priorities of the Government of the day and for the professional conduct, performance and welfare of the men and women in the Force in giving service to the Nation.
Major Duties:
(a) Maintain constructive relationships with the Minister and ensure that the legitimate needs and aspirations of the Government of the day are met in developing and managing the Force.
(b) Oversee the design of corporate strategies and plans for the Minister to secure approval of the National Executive Council to effect development of the Force including policing facilities and equipment and the welfare of the men and women of the RPNGC.
(c) Create an organizational culture and a management environment that thrives on continuously improving policing performance in line with public expectations and Government goals.
(d) Provide effective leadership as a role model, and set standards of good ethics and conduct for the men and women of the RPNGC in line with the Act, Standing Orders and Codes of Conduct.
(e) Efficiently organize, command, control and motivate the men and women of the RPNGC in the delivery of effective law and order maintenance across all communities in the country.
(f) Create a highly disciplined Force of men and women which has the full respect and cooperation of the communities in the detection and apprehension of criminals.
(g) Initiate organizational change and through performance based contracts introduce a performance management system which rewards high performance and provides remedial plans, including termination, for poor performance.
(h) Ensure sound HR management practices are in place for the training and development of the men and women including succession planning and merit based appointments at all command levels.
(i) Ensure that the Force has a record of improving crime detection, apprehension, and successful prosecution of suspected criminals on behalf of the State.
(j) Maintain constructive relationships with the Police Association and within the limits set by affordability and government pay policies, ensure effective management of welfare issues.
(k) Maintain constructive relationships with aid donors and ensure that the development program for the Force is in line with the needs and aspirations of the Government.
(l) Ensure that incident statistics are designed and analysed across the Country and that trends and outcomes of policing efforts are communicated to the Government and the people.
(m) Contribute effectively to the Country’s positive law and order image nationally and internationally and thereby contribute to economic development.
(n) Contribute effectively to the National Anti-Corruption Alliance, the National Security Advisory Committee, the Security Industries Council etc in promoting internal security.
(o) Represent the National Government at international forums and particularly the forums for law enforcement in the Pacific region, to create a positive image of law & order in PNG.
(p) Such other Key Result Areas as prescribed by the Government of the Day.
KEY RESULT AREAS AS OUTLINED BY MARAPE-STEVEN GOVERNMENT
Selection Criteria:
Recommendations will be based on the relative merits of applicants assessed against the following criteria. Applicants should ensure that they address these criteria in their applications.
Minimum Person Specification for Commissioner of Police
(a) The minimum person specification ensures that the selected applicant is fit and qualified to serve as an officer of the Police Force.
(b) Statement of intent to address the KRAs above.
The Commissioner must possess proven skills, experience and competencies in the following fields:—
(i) man management, with a minimum of ten years at a level not lower than Assistant Commissioner; and
(ii) policy formulation and development, strategic/corporate planning and project management; and
(iii) financial management and budgetary controls; and
(iv) negotiating and public relations skills, with an ability to make convincing public presentations of technical information; and
(v) detailed knowledge of the Police Act and the Standing Orders;
(vi) general knowledge of the Government political structures and administration systems, the Constitution, the Organic Law on Provincial and Local-level Governments and knowledge of the Public Finances (Management) Act and the Public Services (Management) Act in particular; and
(vii) a resilient nature able to maintain a firm position on principle and policy and to uphold the Police Force/Public Service Code of Business Ethics and Conduct.
Work Experience: Must be a serving officer or had served in the Force for at least more than 10-15 years at executive management level.
Must possess a resilient nature and be able to maintain a firm position on principle and policy and to uphold the Public Service Code of Business Ethics and Conduct, and be well versed with the Values in the Executive Leadership & Management Capability Framework.
Qualifications:
The appointment of the Commissioner is made under Section 193 of the Constitution, and the selected incumbent must meet the minimum person specification prescribed by the Police Act; served as a commissioned officer in the RPNGC and have enjoyed a successful career in the Police Force taking him or her to the level of (preferably) Deputy Commissioner.
Importantly, the Commissioner shall have demonstrated a high level of competency in executive management within the RPNGC, and preferably will possess a tertiary qualification in public policy and/or business management together with post graduate training in executive management.
Character & High Ethics:
The Commissioner must also meet the requirements prescribed under the Public Service Regulations, as follows:
(1) satisfy health and fitness requirements for occupancy of a Departmental Head position, as determined by a medical examination conducted by a medical officer approved by the Department of Health.
(2) be of good character and repute, with no previous criminal record, as witnessed by suitable references from at least three persons of standing in the community;
(3) be free of criminal charges or outstanding court cases of a nature likely to seriously injure the professional standing and reputation of the officer;
(4) be free of any outstanding investigations or disciplinary proceedings under any laws;
(5) not be involved in the ownership and running of any private business and not be subject to any conflicts of interest in the performance of official duties arising from any personal relationships within or outside of the Police Force;
(6) not be disbarred by virtue of any constitutional or statutory restriction that may apply including any restriction under the Leadership Code or the Defence Act (Chapter 75).
Age and Health:
(1) Satisfy basic health and fitness requirements for occupancy of a head of a State Service, as determined by the Secretary for Health and certified by a medical officer appointed by/approved by the Secretary for Health.
(2) The Commissioner shall not be above the age prescribed in a Contract of Employment to be made by the Head of State on advice, pursuant to the Police Act.
Special Notes:
Applicants are to obtain police clearance and medical certificates before the closing date and submit all relevant documents with the full completed application to the address above. Failure to provide the police clearance report and the medical certificate will result in automatic elimination of the profiling and assessment process.
Authorized by:
T SANSAN
Acting Secretary
Department of Personnel Management
14. The positions were also advertised by public notices in July-August 2019 in the daily newspapers, in the following terms:
NOTICE OF A VACANCY
Royal Papua New Guinea Constabulary
(Police Act 1998)
COMMISSIONER OF POLICE AND
SECRETARY FOR THE DEPARTMENT OF POLICE
The Office of the Commissioner of Police is established by the Constitution. The Commissioner of Police is appointed by the Head of State on the advice of the National Executive Council following consultation with the Public Services Commission and the Permanent Parliamentary Committee on Appointments. The Commissioner of Police is also the Secretary for the Department of Police.
Applicants for the position must be officers who are serving or who have served at a rank not lower than Assistant Commissioner. They must be able to meet the minimum person specifications prescribed by the Official Police Job Description for the position which can be obtained by contacting the office of the secretary for the Department of Personnel Management.
All applications must be addressed to the Acting Secretary for the Department of Personnel Management. Thereafter the Minister for Public Service will consult the Public Services Commission and the Permanent Parliamentary Committee on Appointment, prior to making a joint submission with the Minister for Police to recommend a short list of three names for consideration by the National Executive Council.
Enquiries regarding this vacancy can be made to the Office of the Secretary for the Department of Personnel Management on 3276379 or 3276326. Signed applications and can also be emailed to exrecruit@dpm.gov.pg. Applications close at 4:06pm on Friday 16th August 2019.
15. On 10 September 2019 the Department of Personnel Management, having profiled and summarised the 18 applications, referred a shortlist of six to the Public Services Commission.
16. The Public Services Commission applied a merit-based assessment of the applications and on 7 October 2019, in a letter signed by the three members of the Commission (Dr Philip Kereme as acting Chairman, Apeo F Sione and Hansel Kakimo), wrote to the Prime Minister, Hon James Marape MP, in the following terms:
SUBMISSION OF PSC’S SHORTLIST ON THE APPOINTMENT OF COMMISSIONER OF POLICE, ROYAL PAPUA NEW GUINEA CONSTABULARY
The Commission wishes to advise that it has completed its review and assessment of the six candidates shortlisted and furnished to it by the office of Acting Secretary for the Department of Personnel Management through its letter dated the 10th September 2019 which the Public Services Commission received on the 11th September 2019:
1. Mr David Manning;
2. Mr Sylvester Kalaut;
3. Mr Philip Mitna;
4. Mr Anton Billie;
5. Mr Fred Yakasa; and
6. Mr Mathew Damaru.
The above names were submitted together with all the original applications and Curriculum Vitae received in response to the advertisement, accompanied by an initial screening report.
In accordance with Section 25A of the Public Services (Management) Act, 1995 (as amended) and in strictly applying the merit-based appointment requirements as stipulated in Section 1(1), (a) to (l) of the Public Services (Management) (Minimum Person Specification and Competency Requirement for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation No 6 of 2003, the Commission has finally come up with the following names in the order of preference:
1. Mr Sylvester Kalaut;
2. Mr Fred Yakasa; and
3. Mr David Manning.
The full assessment of the shortlist can be found in the Commission's Assessment Report and the Assessment Matrix attached hereto for your easy reference.
We trust that our shortlist for the three candidates in the order of preference will assist you consult the Secretary for the Department of Personnel Management to proceed with a Submission for Cabinet's consideration and decision.
17. On 8 October 2019 the then Minister for Public Service, Hon Westly N Nukundj MP, referred the recommendations of the Public Services Commission to the Chairman of the Permanent Parliamentary Committee on Appointments, Hon Philip Undialu MP, for the purpose of consulting that Committee on the appointment of a Commissioner of Police and seeking its urgent attention to the matter.
18. On 31 October 2019 Mr Undialu replied to Mr Nukundj, stating that the Committee had resolved unanimously at its meeting of 15 October 2019 to agree with the three shortlisted candidates recommended by the Public Services Commission in the order of priority recommended by the Public Services Commission, for the appointment of a Commissioner of Police.
19. The Secretary of the Department of Personnel Management, Ms Taies Sandan, then facilitated a policy submission, entitled “Appointment of Commissioner of Police”, which was jointly signed by the then Minister for Public Service, Hon Soroi Eoe MP, and the then Minister for Police, Hon Bryan Kramer MP, dated 19 November 2019, and forwarded to the National Executive Council.
20. The submission did not address the issue of an appointment to the position of Departmental Head of the Department of Police. The submission summarised the selection process undertaken to date, and the qualifications and experience of the three shortlisted candidates recommended by the Public Services Commission and concluded with the following recommendations:
It is now recommended that NEC:
21. On 6 December 2019 a meeting of the National Executive Council was held and the following decision was recorded as being made:
Decision No: NG154/2019 Special Meeting No: NG25/2019
Subject: APPOINTMENT OF COMMISSIONER OF POLICE
On 06th December 2019, Council:
22. On 10 December 2019 the Acting Governor-General, the Speaker of the National Parliament, Hon Job Pomat MP, appointed David Manning as Commissioner of Police and Secretary for the Department of Police for a period of four years, under an instrument of appointment that was published in National Gazette No G980 of 10 December 2019 in the following terms:
CONSTITUTION
APPOINTMENT OF COMMISSIONER OF POLICE
AND DEPARTMENTAL HEAD
I, JOB POMAT, Acting Governor-General, by virtue of the powers conferred by Section 193(2) of the Constitution and Section 49(1) and Section 9 of the Police Act 1998, and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council given after the consultation with the Public Services Commission and the Permanent Parliamentary Committee on Appointments, hereby appoint David Manning as Commissioner of Police and Secretary for Department of Police for a period of four (4) years, with effect on and from 3rd December, 2019.
Dated this 10th day of December, 2019.
JOB POMAT,
Acting Governor-General.
Other findings
23. I also make these findings of fact:
FORMAL GROUNDS OF REVIEW
24. The grounds are pleaded in paragraphs 16 to 21 of the amended statement filed under Order 16, Rule 3(2)(b) of the National Court Rules on 28 May 2020:
16 Breach of procedures prescribed by statute and subordinate legislation
(a) The second respondent recommended the fifth respondent who is not qualified to be appointed as Commissioner of Police and Secretary to the Department of Police to the NEC thus breaching prescribed procedures under Section 31A(1)(b) and (c) of the Public Services (Management) Act and Section 2(1)(b)(iv)(v) of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 5 of 2003).
(b) The second respondent recommended to the NEC the fifth respondent to be appointed as Commissioner of Police and Secretary to the Department of Police when he is not qualified which is in breach of the prescribed processes pursuant to Section 25A(a)(b)(iv) and (v) of the Public Services (Management) Act 1995, and Section 1(1)(d) and (g) of the Public Services (Management) (Minimum Person Specification and Competence and Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 6 of 2003).
(c) The fifth respondent does not meet the following criteria required under section 1(1)(d) and (g) of Regulation No 6 of 2003:
[i] The fifth respondent does not possess as a minimum tertiary education, a degree from the recognised university, together with post graduate training relevant to the technical requirements of the position, and a management qualification equivalent to the Public Service Intermediate Management Programme, as amended from time to time; and
[ii] The fifth respondent is not free of any outstanding investigation or disciplinary proceedings under any laws.
(d) The fifth respondent did not make the Declaration of Office before entering the duties of office as required under Section 12 of the Police Act 1998.
(e) The fourth respondent failed to submit a report to Parliament on the appointment of the fifth respondent as Commissioner of Police and Secretary to the Department of Police as soon as possible after the appointment was made on 6 December 2019, which is in breach of Section 193(2) of the Constitution.
17 Error of Law
The second respondent erred in law in shortlisting the fifth respondent as one of the three shortlisted applicants for the position of Commissioner of Police and Secretary to the Department of Police and submitted it to the NEC thus breaching the procedures prescribed by Sections 25A and 31A(d)(i)(ii) and (e) of the Public Services (Management) Act 1995 and Section 2(2)(3)(4) of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 5 of 2003).
18 Ultra Vires
The PSC acted ultra vires Section 193(1A) of the Constitution without following prescribed procedures pursuant to [Section] 25A of the Pubic Services (Management) Act 1995, Section 31A(d)(i)(ii) and (e) of the Public Services (Management) Act and Sections 2, 3, and 4 of the Pubic Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 5 of 2003) and Section 1(1)(d) and (g) of the Public Services (Management) (Minimum Person Specification and Competence and Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 6 of 2003) by recommending the fifth respondent as part of its shortlist without him meeting the required criteria for appointment as Commissioner of Police and Secretary to the Department of Police.
19 Relevant Consideration
The PSC did not take into account the relevant consideration that the first applicant and second applicant satisfied all the criteria required under Section 1(1) of the Public Services (Management) (Minimum Person Specification and Competence and Requirements for Selection and Appointments of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No 6 of 2003).
20 Real or Apprehension of Bias by the Police Minister
There was real or apprehended bias shown by the fourth respondent’s participation in the appointment of the fifth respondent as the Commissioner of Police and Secretary to the Department of Police.
21 Breach of Natural Justice
By the Department of Personnel Management advertising in the National Gazette No PS.G16 dated 1 August 2019 that the specific criteria for the position of the Commissioner of Police and the Secretary to the Department of Police would be in accordance with the Public Services (Management) (Minimum Person Specification and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 a legitimate expectation was created onwards that those selection procedures would be followed, and given that the PSC has departed from those procedures there has been a breach of natural justice under Section 59(2) of the Constitution.
25. The connexion between the formal grounds of review and the seven primary arguments I have identified, is shown in the following table.
CONNEXION BETWEEN GROUNDS OF REVIEW AND PRIMARY ARGUMENTS
| Grounds of review | Primary arguments |
| 16(a) | 1 |
| 16(b) | 1 |
| 16(c)(i) | 1 |
| 16(c)(ii) | 2 |
| 16(d) | 3 |
| 16(e) | 4 |
| 17 | 1 |
| 18 | 1 |
| 19 | 5 |
| 20 | 6 |
| 21 | 7 |
26. I now address the issues identified earlier.
ISSUE 1: CAN ANY OF THE APPLICANTS’ SEVEN PRIMARY ARGUMENTS BE SUMMARILY DETERMINED?
27. Having considered submissions of counsel for both sides and the evidence before the Court I have decided that most of the applicants’ primary arguments, those numbered (2) to (7), can be summarily dismissed.
Argument (2) is that David Manning is not free of outstanding investigations or disciplinary proceedings.
28. The applicants argue that one of the prerequisites for appointment as Secretary for the Department of Police is that the candidate pass a fit and proper person test. More specifically, reliance is place on s 1(1)(e) and (f) of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003. This requires that the Public Services Commission, in making recommendations to the National Executive Council under s 193 of the Constitution regarding appointment of Departmental Heads, assess candidates against criteria including that:
(e) the candidate is of good character and repute, with no previous criminal record, and as witnessed by suitable references from at least three persons of standing in the community;
(f) the candidate is free of criminal charges or outstanding court cases of a nature likely to seriously injure the professional standing and reputation of the officer, as verified by the Police Commissioner;
(g) the candidate is free of any outstanding investigations or disciplinary proceedings under any laws.
29. The applicants argue that Mr Manning fails the fit and proper person test constituted by those criteria due to a serious criminal allegation against him, which was the subject of an official complaint to Police in Kimbe in June 2000. The allegation is that he committed a sexual offence against a young female while on official duty as a member of the Police Force. Evidence of the allegation and complaint is in an affidavit admitted in evidence in the current proceedings by the then West New Britain Provincial Police Commander, Ben Simanjuang. There is also evidence that the complainant has made a recent complaint to the Police in an attempt to have the matter investigated.
30. Mr Manning’s counsel, Mr Wood, made an effective response to this argument by pointing out that the allegation against Mr Manning remains just that: an allegation. Mr Manning was not charged under the Criminal Code or under the disciplinary code applying to all members of the Police Force under the Police Act 1998. Mr Manning in the current proceedings has stated that the allegation is frivolous and vexatious. That it also a sufficient response. Mr Dotaona, for the applicants, points out that Mr Manning has not expressly denied the allegation. That is correct but the absence of an express denial is of no consequence. Mr Manning did not have to expressly deny the allegation as it has never been, and still is not 20 years after the allegation was made, the subject of a criminal or disciplinary charge. There is no evidence that there is any current investigation of the allegation.
31. I find that there is no evidence that when Mr Manning applied for the positions advertised in August 2019 he was not of good character or repute, not free of criminal charges or outstanding court cases or not free of outstanding investigations or disciplinary proceedings.
32. Argument (2) is summarily dismissed.
Argument (3) is that Mr Manning did not make the Declaration of Office before entering the duties of office.
33. The applicants argue that s 12 of the Police Act requires the person appointed Commissioner of Police to make the Declaration of Office before entering the duties of office, and that Mr Manning has not made the Declaration and that renders his appointment unlawful.
34. It is correct that s 12 (declaration of office) of the Police Act prescribes the person before whom a Commissioner of Police must make the Declaration of Office, in the following terms:
The Commissioner, shall, before entering on the duties of office, make, before the Chief Justice or a Judge, the Declaration of Office.
35. The actual requirement for the Commissioner to make the Declaration of Office, and also the Declaration of Loyalty, arises under the Constitution, ss 249 (declarations by certain office-holders) and 250 (making of Declaration of Loyalty etc), which provide:
249.
Subject to any Organic Law, every person who is subject to Division III.2 (leadership code) before entering upon the duties of or exercising any of the powers of his office, shall make—
(a) unless he has made it on a previous occasion or is exempt from making it under—
(i) Section 251(1) (taking certain oaths, etc, by non-citizens); or
(ii) Section 272 (oaths, affirmation, etc),
the Declaration of Loyalty; and
(b) in the case of—
(i) a judicial officer—the Judicial Declaration; or
(ii) an office-holder other than a judicial officer—the Declaration of Office.
250.
(1) Subject to any provision of a Constitutional Law making special provision for the purpose, the Oath of Allegiance, the Declaration of Loyalty, the Judicial Declaration or the Declaration of Office (or any other oath, affirmation or declaration that is required or permitted to be taken or made by or for the purposes of a Constitutional Law) may be taken or made before any person appointed for the purpose by or under an Act of the Parliament, or in the absence of any such Act, before a person appointed for the purpose by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.
(2) Notwithstanding the provisions of Subsection (1), an oath, affirmation or declaration referred to in that subsection is binding and effectual no matter before whom it is taken or made.
36. It was a constitutional requirement for Mr Manning to make the Declaration of Office (and the Declaration of Loyalty) “before entering upon the duties of or exercising any of the powers of his office” as he is a person who is subject to Division III.2 of the Constitution (ie he is subject to the Leadership Code) under ss 26(1)(f) (as he was appointed Head of a Department of the National Public Service) and 26(1)(g) (as he was appointed Commissioner of Police) of the Constitution.
37. The problem with the applicants’ argument is that there is no evidence to support it. There is no evidence that Mr Manning has not made the Declaration of Office. I note that Mr Manning has not denied the allegation, which is surprising as it is a very serious allegation, which would seem very easy to refute if it is false. However, as serious as it is, the allegation remains just that: an allegation.
38. The other problem with the argument is, as highlighted by Mr Mileng, counsel for the respondents other than Mr Manning, that even if it were proven that Mr Manning had not made the Declaration of Office, it relates to an event that has occurred (or not occurred) after Mr Manning’s appointment. I see merit in that point. Though it might be relevant in the exercise of discretion of the Court in the event that one or more grounds of review is established, to take into account that an important constitutional requirement had not been met, it would not seem capable of being a ground of review of the appointment of Mr Manning or of any decisions made that preceded the appointment.
39. Argument (3) is summarily dismissed.
Argument (4) is that the responsible Minister did not give a report to the Parliament on the appointment of David Manning as required by the Constitution, s 193(2).
40. The applicants argue that s 193(2) of the Constitution requires that after a Commissioner of Police is appointed, a report on the appointment, demonstrating compliance with the requirements that the Public Services Commission and the Permanent Parliamentary Committee on Appointments were consulted, must be given by the responsible Minister “as soon as possible” after the appointment has been made. It is further argued that the responsible Minister in this case was either the Minister for Public Service or the Minister for Police, and that no report was given by either of them, and this renders Mr Manning’s appointment unlawful.
41. It is correct that s 193(2) (appointments to certain offices) of the Constitution requires a report on the appointment of a Commissioner of Police to be given by the responsible Minister as soon as possible after the appointment is made. Section 193(2) states:
All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.
42. Section 193(2) applies here as the office of Commissioner of Police is referred to in s 193(1)(e) of the Constitution.
43. The problem with the applicants’ argument is, as with their previous arguments, that there is no credible evidence to support it. There is insufficient evidence that no report has been given to the Parliament. Mr Kalaut has given evidence that he enquired with the Office of the Clerk of the Parliament and was informed that no report had been given. That is pure hearsay. What was required, I suggest, was an affidavit by the Clerk of the Parliament or another senior officer of the Parliamentary Service deposing that a full search had been undertaken of the records of the Parliament, revealing that no such report had been given.
44. Apart from that, the same point raised by Mr Mileng in response to the argument about the alleged failure to make the Declaration of Office, applies here. The applicants are raising an alleged breach of a constitutional requirement that arose after the appointment was made. It is hard to see how it can be a proper ground of review of the appointment itself.
45. Argument (4) is summarily dismissed.
Argument (5) is that the Public Services Commission did not take into account that Sylvestar Kalaut and Fred Yakasa satisfied all the criteria in the governing Regulation.
46. The applicants argue that they each satisfied all the selection criteria in the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, in particular the requirement of s1(1)(d) that:
the candidate possesses as a minimum tertiary qualification, a degree from a recognized university, together with post graduate training relevant to the technical requirements of the position, and a management qualification equivalent to the Public Service Intermediate Management Programme, as amended from time to time.
47. They emphasise that Mr Manning has no tertiary qualifications, so, quite apart from whether he satisfied other criteria such as the fit and proper person test, he did not satisfy this selection requirement.
48. They argue that the Public Services Commission did not take into account that they satisfied all the criteria, whereas Mr Manning did not.
49. The problem with this argument is, as is the case with the previous arguments, the evidence does not support it. In fact the evidence contradicts the argument. The merit-based assessment matrix used by the Public Services Commission to support its recommendation as to the preferred candidates for appointment, is in evidence as an annexure to the affidavit of the Chairman of the Public Services Commission, Apeo Fuata Sione (exhibit R3). It shows that Mr Kalaut and Mr Yakasa scored the maximum of four points each under criterion #4 for education and qualifications, while Mr Manning scored for that criterion only two points.
50. The only reasonable inference arising from the evidence is that the Public Services Commission took full account of the fact that both Mr Kalaut and Mr Yakasa satisfied all the selection criteria. This is reinforced by the total scores awarded by the Public Services Commission to the six shortlisted candidates (see annexure AFS 18 of exhibit R3) that were subject to the merit-based assessment matrix:
Sylvestar Kalaut 29 points
Fred Yakasa 29 points
David Manning 26 points
Mathew Damaru 25 points
Anton Billie 25 points
Philip Mitna 24 points.
51. I emphasise that at this stage I am addressing the very specific argument, found in the ground of review in paragraph 19 of the originating statement, that the Public Services Commission failed to take into account that Mr Kalaut and Mr Yakasa satisfied all the selection criteria. I am not at this stage addressing the argument that the Public Services Commission failed to take into account that Mr Manning did not satisfy all the criteria.
52. There is no merit in that very specific argument, which is No 5 of the applicants’ primary arguments, and it is summarily dismissed.
Argument (6) is that the then Minister for Police, Hon Bryan Kramer MP, exhibited actual bias against the applicants, or that a reasonable apprehension of bias arises due to comments the Minister made (in both social and mainstream media) about Mr Kalaut and about the process used to appoint Mr Manning.
53. This argument fails for many reasons:
54. Argument (6) is summarily dismissed.
Argument (7) is that the applicants had a legitimate expectation that all applications for the vacant positions of Commissioner and Departmental Head would be assessed against the advertised selection criteria, including the requirement that the successful candidate have a tertiary qualification; but that expectation was defeated as Mr Manning was appointed, despite his absence of tertiary qualifications, which showed that the criteria were not enforced.
55. The applicants reinforce this argument by invoking the principles of natural justice under s 59 of the Constitution, which states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
56. The applicants argue the approach taken by the Public Services Commission, which was not to enforce the advertised selection criteria, meant that the Commission failed in its duty to act fairly and to be seen to act fairly.
57. This is an alluring argument but when it is considered in the context of this case, a judicial review of the decision of the National Executive Council to advise the Governor-General to appoint David Manning as Commissioner of Police and Secretary of the Department of Police, it fails to go beyond being an emotional or moral argument. It is an argument that goes to the merits of the Public Services Commission’s recommendations. The applicants are saying that what the Public Services Commission did was not “fair”. That is like arguing that what the Public Services Commission did, by recommending Mr Manning as a preferred candidate even though he did not satisfy the selection criteria, was wrong or improper or unjust. It is not a judicial review argument.
58. The concept of fairness in s 59 of the Constitution is confined to procedural unfairness. The related concept of legitimate expectation is relevant in determining whether a person has a right to procedural fairness, ie whether there is a right to be heard (see Hanjung Power Ltd v Marat (2009) N3751 and Marat v Hanjung Power Ltd (2014) SC1357), but not substantive fairness.
59. I uphold the respondents’ submissions that the concept of legitimate expectations is not relevant to the present case. I reject the applicants’ argument that the approach of the Public Services Commission was not fair for the purposes of s 59 of the Constitution. There was no denial of any actionable legitimate expectation of the applicants.
60. Argument (7) is summarily dismissed.
61. That leaves the applicants’ first primary argument still standing. I consider this argument cannot be summarily dismissed.
ISSUE 2: DOES THE ABSENCE OF TERTIARY QUALIFICATIONS AFFECT THE LEGALITY OF THE APPOINTMENT OF DAVID MANNING?
62. The applicants’ first primary argument is that Mr Manning was appointed to two positions, Commissioner of Police and Secretary of the Department of Police. The position of Secretary is the same thing as a Departmental Head position. All Departmental Head positions have clearly defined and mandatory selection criteria. One of the criteria is that that the appointee has tertiary qualifications. Mr Manning has no tertiary qualifications, in contrast to both Mr Kalaut and Mr Yakasa, both of whom have tertiary qualifications. Therefore Mr Manning is not qualified to hold office as Secretary of the Department of Police. His appointment to that position should be quashed. His appointment as Commissioner of Police should also be quashed.
63. I will now test those various propositions, and I will do that before assessing the contrary arguments of the respondents. Then I will determine the first primary argument.
Testing the propositions advanced by the applicants in their first primary argument
Mr Manning was appointed to two positions, Commissioner of Police and Secretary of the Department of Police.
64. This is clearly the case. The advertisements for the positions made it clear that applications were invited to fill two separate positions, Commissioner of Police and Secretary of the Department of Police. Mr Manning applied for those two positions and he was appointed to those two positions.
The position of Secretary is the same thing as a Departmental Head position.
65. Yes, this is clearly the case. The terms “Secretary” and “Departmental Head” for the Department of Police are interchangeable.
All Departmental Head positions have clearly defined and mandatory selection criteria.
66. This is correct. The selection criteria have their genesis in ss 193(1) and (1A) of the Constitution, which provide:
(1) This section applies to and in respect of the following offices and positions:—
(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and
(b) the offices of the members of the Boundaries Commission; and
(c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and
(e) the office of Commissioner of Police; and
(f) the office of Commander of the Defence Force; and
(g) the office of Secretary to the National Executive Council; and
(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose, other than the offices of the members of the Public Services Commission.
(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.
67. Selection criteria for Departmental Heads and the procedures for appointment are further provided for by ss 25A and 31A of the Public Services (Management) Act 1995, which provide:
25A. Merit-based appointment process
Regulations may prescribe a merit-based appointment process for the filling of a vacancy under Section 25 which –
(a) shall involve a recommendation of the Public Services Commission to be made solely on the basis of an assessment of a candidate’s suitability compared to the minimum person specification as advertised for the vacancy; and
(b) shall be based on the following administrative processes: –
- (i) the advertisement of the vacancy in an office in the prescribed format, together with the minimum person specification for applicants to the position;
- (ii) the assessment of each applicant’s curriculum vitae, submitted in a prescribed format, and their competency to perform the prescribed duties as measured against the prescribed minimum person specification for the position;
- (iii) a ranked ordered assessment of all applicants for the advertised position in terms of their relative competency to perform the prescribed duties;
- (iv) the merit-based assessment described in this section shall be the primary consideration of the Public Services Commission in making a recommendation to the National Executive Council; and
- (v) all other considerations not related to the processes described in this section shall have no bearing in the recommendation of the Public Services Commission and of the National Executive Council in making a final decision on an appointment.
31A. Procedures relating to substantive appointments of Departmental Heads
(1) The procedures relating to the substantive appointments of Departmental Heads referred to in Section 193(1A) (appointments to certain offices) of the Constitution are as follows: –
- (a) where an office of Departmental Head becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsection (2) and (3) –
- (i) declare that a vacancy in the office of Departmental Head exists or is about to exist; and
- (ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and
- (iii) notify the Commission of the vacancy; and
- (iv) advertise for applications for the office –
(A) on the least two occasions in a newspaper circulated nationally; and
(B) in such other manner as it considers appropriate;
(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 –
(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and
(ii) submit to the Commission for its consideration –
(A) the list under Subsection (i); and
(B) all applications received in response to the advertisements under Paragraph (a)(iv);
(c) an assessment of an applicant under Paragraph (b) shall be based on –
(i) the minimum requisites for the position; and
(ii) where available, any appraisal of performance and discipline under Section 24A; and
(iii) prescribed criteria;
(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all application[s] received in response to the advertisement under Paragraph (a)(iv) and shall –
(i) compile there from a list of up to three candidates in order of preference; and
(ii) submit the list under Subparagraph (i) as a recommendation to the National Executive Council;
(e) the National Executive Council may select one of the persons on the list submitted to it under Paragraph (d)(i) for appointment and shall advise the Head of State to make the appropriate substantive appointment as Departmental Head;
(f) where the National Executive Council does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment –
(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and
(ii) the procedure set out in Paragraph (a)(iv),(b),(c),(d) and (e) shall again be followed.
(2) Where –
(a) an office of Departmental Head 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 National Executive Council that person be re-appointed and –
(a) where the National Executive Council is agreeable to the re-appointment it shall advise the Head of State to re-appoint the person as substantive Departmental Head; or
(b) where the National Executive Council is not agreeable to the re-appointment –
(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and
(ii) the procedure specified in Subsection (1)(a), (b), (c), (d) and (e) shall be followed.
68. The actual selection criteria for Departmental Heads are prescribed, under s25A of the Act, by the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003. It consists of one section only, s 1 (recommendations to be made to the National Executive Council for appointment of Departmental Heads and Provincial Administrators), which states:
(1) All recommendations made by the Public Services Commission to the National Executive Council under Section 193 (appointment to certain offices) of the Constitution and to Provincial Executive Councils under Section 73 of the Organic law on Provincial Governments and Local-level Governments shall be based upon the relative merits of candidates for the positions as assessed by the Public Services Commission against the following criteria:—
(a) the candidate is a serving officer of the National Public Service, or a person fit and qualified to serve as an officer of the National Public Service, as determined by the criteria hereunder;
(b) the candidate satisfies health and fitness requirements for occupancy of a Departmental Head position, as determined by a medical examination prescribed by the Departmental Head of the Department of Health and conducted by a medical officer appointed or approved by that Departmental Head;
(c) the candidate is not less than 35 years of age and not more than 60 years of age;
(d) the candidate possesses as a minimum tertiary qualification, a degree from a recognized university, together with post graduate training relevant to the technical requirements of the position, and a management qualification equivalent to the Public Service Intermediate Management Programme, as amended from time to time;
(e) the candidate is of good character and repute, with no previous criminal record, and as witnessed by suitable references from at least three persons of standing in the community;
(f) the candidate is free of criminal charges or outstanding court cases of a nature likely to seriously injure the professional standing and reputation of the officer, as verified by the Police Commissioner;
(g) the candidate is free of any outstanding investigations or disciplinary proceedings under any laws;
(h) the candidate is not disbarred by virtue of any constitutional or statutory restriction that may apply including any restriction under the Leadership Code or the Defence Act (Chapter 75);
(i) the candidate possesses proven skills, experience and competencies in the following fields:—
- (i) man management, with a minimum of three years at a level not lower than Deputy Secretary, or Deputy Managing Director or deemed equivalent level in a private sector organization; and
- (ii) policy formulation and development, strategic/corporate planning, and project management; and
- (iii) financial budgeting and manpower planning; and
- (iv) negotiating and public relations skills, with an ability to make convincing public presentations of technical information; and
- (v) general knowledge of the Government political structures and administration systems, the Constitution, the Organic Law on Provincial Governments and Local-level Governments and knowledge of the Public Finances (Management) Act 1995 and the Public Services (Management) Act 1995 in particular; and
- (vi) a resilient nature able to maintain a firm position on principle and policy and to uphold the Public Service Code of Business Ethics and Conduct;
(j) the candidate possesses other competencies (physical and mental skills and abilities) relevant to the position, as prescribed in a job description approved by the Central Agencies Coordinating Committee from time to time;
(k) the candidate has provided a dissertation in writing as to his or her own suitability for the appointment, and the contribution he intends to make to the Government priority programmes if appointed to office;
(l) the candidate has satisfied all of the requirements specified in the National Gazette Notice pursuant to subsection 1(l) of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003.
(2) The Minister for Public Service shall obtain from each relevant Minister or, in the case of a Provincial Administrator from each relevant Provincial Governor, advice on the specific accountabilities, qualifications, competencies and experiences which will be required to meet the performance expectations of each of the respective Governments in conformity with this Regulation.
(3) A list of the position specifications and requirements as assessed under subsection (2) shall be recorded in a job description referred to under subsection (1)(j), and authorized by the Departmental Head of the Department of Personnel Management following consultation with the Central Agencies Coordinating Committee and ratification by the National Executive Council from time to time.
(4) In making a recommendation under this Regulation, the Public Services Commission shall also take into account any determinations of the National Executive Council or of the Provincial Executive Councils which have been communicated to the effect that a position shall be filled by a Papua New Guinean citizen and that therefore applicants of other nationalities are not to be recommended for appointment.
69. I uphold the applicants’ argument, which was not actually contested by the respondents (as their argument is that these criteria are irrelevant to Mr Manning’s appointment), that these selection criteria are not mere guidelines or relevant considerations to be taken into account by the Public Services Commission. They are prerequisites for appointment. They are enforceable. If a person is appointed as a Departmental Head without satisfying all criteria, their appointment is at risk of being declared unlawful.
70. The National Court decision of Salika J, as he then was, in Luma v Tetaga (2007) N3275 is authority for that proposition. Alphonse Niggins was appointed Secretary of the Department of Works despite lacking the required tertiary qualifications. An application for judicial review by an aggrieved candidate, Joel Luma, was granted. The recommendation of the Public Services Commission, which favoured the appointment of Mr Niggins, was quashed and the Court ordered that a fresh process to appoint a new Secretary be undertaken.
One of the selection criteria for a Departmental Head is that the appointee has tertiary qualifications.
71. This is a correct proposition, amply demonstrated by the decision in Luma v Tetaga (2007) N3275, referred to above. And it is important to note that the prerequisite is not just tertiary qualifications. The specific requirements are prescribed by s 1(1)(d) of the 2003 Regulation. It is essential that:
the candidate possesses as a minimum tertiary qualification, a degree from a recognized university, together with post graduate training relevant to the technical requirements of the position, and a management qualification equivalent to the Public Service Intermediate Management Programme, as amended from time to time.
72. It will be observed that there are actually three requirements:
Mr Manning has no tertiary qualifications, in contrast to both Mr Kalaut and Mr Yakasa, both of whom have tertiary qualifications.
73. This is correct. Mr Manning has no tertiary qualifications. He has no degree from a recognised university. He has no post-graduate training. He has management qualifications in the form of being awarded a certificate in the Royal Papua New Guinea Constabulary Senior Leadership Development program and a certificate from the International Senior Police Officers Command course at the Royal Malaysia Police College and a certificate in Intelligence Analysis.
74. Mr Kalaut has a Bachelor of Laws degree (with Honours) from the University of Papua New Guinea, a Diploma in Law Prosecutions (also from UPNG), a certificate in legal practice from the Legal Training Institute and a number of management course certificates.
75. Mr Yakasa has a Bachelor of Arts degree from the University of Papua New Guinea, a Diploma in Social Administration (also from UPNG), and a number of management course certificates.
Mr Manning is not qualified to hold office as Secretary of the Department of Police.
76. This would appear, subject to my assessment of the respondents’ arguments, to be the case. There is a strong prima facie case that that is the position at law.
Mr Manning’s appointment to the position of Secretary of the Department of Police should be quashed.
77. There is a strong primary facie case that that is a natural consequence of upholding the earlier propositions.
His appointment as Commissioner of Police should also be quashed.
78. There is a strong primary facie case that that is another logical consequence of upholding the earlier propositions.
Assessment of the contrary arguments of the respondents
79. The respondents do not deny that Mr Manning lacks tertiary qualifications, but they argue that in the context of his appointment as Commissioner of Police and Secretary of the Department of Police, that is of no consequence, for these reasons:
80. I will now test those arguments of the respondents.
Mr Manning was appointed under s 193(2) of the Constitution, which provides an exclusive procedure for appointment of a Commissioner of Police.
81. These propositions are correct – yes, Mr Manning was appointed under s 193(2), which does provide an exclusive procedure for appointment of the Commissioner of Police – but the applicants are not asserting that Mr Manning was not appointed under that provision. It is not an effective counter-argument.
The processes set out in s 193(2) have been complied with.
82. The respondents argue that the Head of State (ie in this case, the acting Governor-General) appointed Mr Manning in accordance with the advice of the National Executive Council which was given after consultation with the Public Services Commission and the Permanent Parliamentary Committee on Appointments. They say the procedures in s 193(2) were followed to the letter. There was no breach.
83. That is correct. But it is not the applicants’ case that the procedures in s 193(2) were not complied with. The procedures in s 193(2) were followed in so far as Mr Manning’s appointment as Commissioner of Police is concerned, but the necessary procedures regarding his appointment as Secretary of the Department of Police were not followed. The respondents have failed to respond to that argument.
Mr Manning was not appointed under s 193(1A) of the Constitution, which is the provision under which the selection criteria in the 2003 Regulation have been prescribed.
84. This argument has ostensible merit in light of the wording of the instrument of appointment, published in the National Gazette on 10 December 2019 in the following terms:
I, JOB POMAT, Acting Governor-General, by virtue of the powers conferred by Section 193(2) of the Constitution and Section 49(1) and Section 9 of the Police Act 1998, and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council given after the consultation with the Public Services Commission and the Permanent Parliamentary Committee on Appointments, hereby appoint David Manning as Commissioner of Police and Secretary for Department of Police for a period of four (4) years, with effect on and from 3rd December, 2019.
Dated this 10th day of December, 2019.
JOB POMAT,
Acting Governor-General.
85. It will be observed that s 193(1A) is not mentioned. Does that mean that s 193(1A) is irrelevant? No. Though it was not mentioned, s 193(1A) is the source of power to appoint a Departmental Head. It should have been mentioned. The fact that it was not does not mean that it is irrelevant.
86. I note that s 49(1) of the Police Act, which is a provision regarding promotions or appointments to the rank of Deputy Commissioner, is mentioned, which seems completely irrelevant to the subject of the instrument of appointment.
87. What is relevant is that Mr Manning was in fact and law appointed as Secretary for the Department of Police. Two different positions – Commissioner and Secretary – were advertised. He responded to the advertisement. He applied for the two positions. The National Executive Council’s advice was to appoint him to the two positions. He was appointed to the two positions.
88. He could only be appointed Secretary of the Department of Police under s 193(1A). The provision is not irrelevant in this case. On the contrary, it is critical.
The Court cannot go behind the recommendations of the Public Services Commission, as to do so would be to challenge the merits of its recommendations, which is not permissible in a judicial review.
89. I appreciate that there is apparent support for this proposition in the National Court decision of Injia DCJ, as he then was, in Kawi v Tetaga (2006) N3100 and also in the decision of Lay J in Edo v Brown (2006) N3071. The Court must respect the recommendations of the Public Services Commission and refrain from second-guessing its views as to the merits of competing applications for leadership offices. However, that does not mean that the Court cannot hear argument as to the legality of the opinions or recommendations of the Public Services Commission. If it expresses an opinion that is unlawful – by for example, recommending a person for appointment who is unqualified – its recommendation is challengeable. That is what happened in Luma v Tetaga; and there is further support for that approach in the Supreme Court’s decision in Edo v Elias (2009) SC988.
90. I reject the respondents’ argument that by entertaining the applicants’ argument that the Public Services Commission erroneously included Mr Manning in its final list of three recommended candidates, the Court is venturing into the merits of the Public Services Commission’s recommendations.
Mr Manning’s appointment as Secretary of the Department of Police was unnecessary and probably unconstitutional as the Constitution does not envisage that there would be such a Department.
91. This is an interesting argument, which Mr Mileng emphasised in light of obiter dicta of Kapi J, as he then was in SC Ref No 1 of 1982, Re Bouraga [1982] PNGLR 178. His Honour did indeed express such opinions. And it is noteworthy that the Defence Force and its administrative apparatus established under s 201 of the Constitution are intended to operate differently from the Police Force. But those opinions have never been the subject of a final judicial determination.
92. The respondents attempted in this case to have constitutional questions referred to the Supreme Court under s 18(2) of the Constitution that would have resulted in such a determination. However I rejected an application to that effect.
93. Then there was a s 19 reference made by the Attorney-General to that effect (which was the reason there was a hiatus in this case from June 2020, when the trial commenced, to January 2021 when it resumed, due to a stay of these proceedings pending determination of the reference). The reference was dismissed on 14 December 2020 as an abuse of process. So, the interesting constitutional issues, which, incidentally, I still see as unnecessarily raised in this case, have yet to be resolved.
94. Perhaps what the first and sixth respondents should have done, in light of the controversy surrounding the Department of Police and its Departmental Head, is abolish the Department and abolish the position of Secretary of the Department of Police. But that has not been done. Perhaps it should be done in the future.
95. However, the telling fact for the purposes of this case is that Mr Manning has in fact and law been appointed as Secretary of the Department of Police, which is a Department in the National Public Service. It is his appointment to that office, which is directly challenged; and it is argued that if he is found to have been unlawfully appointed to that office, it follows that his appointment as Commissioner of Police is also unlawful.
96. I find that the constitutional argument based on Bouraga’s case is of no consequence.
The provisions of the Public Services (Management) Act and the 2003 Regulation are irrelevant to Mr Manning’s appointment and there was no need for him to meet the selection criteria arising under those laws.
97. I reject that argument. Those provisions and the enforceable selection criteria contained therein are directly relevant to Mr Manning’s appointment as Secretary of the Department of Police.
Mr Manning is entirely qualified to be the Commissioner of Police, and tertiary qualifications are not required for appointment to that position.
98. This is correct. Mr Manning is very qualified to be Commissioner in light of his long period of distinguished service in the Police Force in senior positions. Tertiary qualifications are not required for appointment as Commissioner. But these propositions miss the nub of the applicants’ argument: he is not qualified to be a Departmental Head: tertiary qualifications are required: Mr Manning does not have any.
The decision of the National Executive Council to advise the Governor-General to appoint Mr Manning is non-justiciable.
99. This argument was not pressed strongly by either Mr Mileng or Mr Wood. It appears to be based on s 86 (functions etc) of the Constitution, which is the central provision in Part V (Head of State) of the Constitution providing for the powers, functions, duties and responsibilities of the Head of State. Section 86 states:
(1) The privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.
(2) Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.
(3) Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.
(4) The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable. [Emphasis added.]
100. The respondents appear to be arguing that whatever advice was given to the Governor-General regarding Mr Manning’s appointment is non-justiciable. However, the decision of the Supreme Court in Kila Wari v Gabriel Ramoi [1986] PNGLR 112 is apposite. Each member of the Court made the following comments obiter dicta, as to the limits on the application of s 86(4). Kidu CJ stated:
I consider that it is because the Head of State cannot act otherwise than on advice of the National Executive Council or a body prescribed by law that s 86(4) of the Constitution ensures that whatever advice the Head of State is given and by whom is non-justiciable: "The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable."
This means of course that no Court has jurisdiction to look into questions relating to the advice given to the Head of State (see Sch 1.7 of the Constitution and The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, per Frost CJ at 499, and per Saldanha J at 504). This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v Frame ([1980] PNGLR 433) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged.
101. Kapi DCJ stated:
As I have pointed out, where advice is given to the Head of State within the discretion given by law, that advice is non-justiciable. Where the advice falls outside the power or discretion given to the person or authority by the law, that advice is not protected by s 86(4) of the Constitution. This raises the question of the person or authority which is acting ultra vires the power given to it by the law. ...
Therefore, s 86(4) protects any advice which is given within the discretion permitted by an Act but does not protect:
(a) any advice which is either inconsistent with the provisions of an Act or is ultra vires the Act; and
(b) does not protect any act of the Head of State which is inconsistent with any provision of the Constitution.
102. Amet J stated:
I too consider that to challenge the legality, validity or indeed the constitutionality of the final act or decision of the Head of State acting upon advice is not to question the advice, if any, given to the Head of State. Whatever the advice might have been, is not the issue, it is the end result of that which is challenged. As an example, whatever the advice might be, if the action or decision of the Head of State is clearly unconstitutional, I do not think it can be argued that that decision cannot be challenged as being unconstitutional. Such a challenge is not concerned with what advice, if any, or the contents of such advice, but the fact that the decision ipso facto is unconstitutional.
103. The words of caution of the Court in Wari v Ramoi, about the limited operation of s 86(4), reinforce my view that in the circumstances of this case there is no prohibition in s 86(4) of the Constitution against entertaining the applicants’ application for judicial review of the decision of the National Executive Council that led to the appointment of Mr Manning as Commissioner of Police and Secretary of the Department of Police.
Determination of the applicants’ first primary argument
104. Having tested the applicants’ various propositions underlying their first primary argument and found prima facie merit in those propositions, and examined the counter-arguments of the respondents and found them be ineffective, I conclude that the absence of tertiary qualifications has a direct effect on the legality of Mr Manning’s appointment as Secretary of the Department of Police. It follows that:
105. The applicants’ first primary argument is upheld. David Manning could not lawfully be appointed Commissioner of Police and Secretary of the Department of Police as he does not possess any tertiary qualifications
ISSUE 3: HAVE ANY OF THE GROUNDS OF JUDICIAL REVIEW BEEN ESTABLISHED?
106. I have so far determined the applicant’s primary arguments, summarily dismissing the second to seventh arguments and upholding the first. I now determine the grounds of review, as shown in the following table.
DETERMINATION OF GROUNDS OF REVIEW
| Grounds of review | Determination |
| 16(a): breach of procedure by PSC in recommending Mr Manning for appointment despite being unqualified | Upheld |
| 16(b) breach of procedure by PSC in recommending Mr Manning for appointment despite being unqualified | Upheld |
| 16(c)(i) Mr Manning’s absence of tertiary qualifications | Upheld |
| 16(c)(ii) Mr Manning not free of outstanding investigations | Refused |
| 16(d) Mr Manning did not make the Declaration of Office | Refused |
| 16(e) Failure of responsible Minister to give report to the Parliament | Refused |
| 17 Error of law by PSC in shortlisting Mr Manning | Upheld |
| 18 PSC acted ultra vires when including Mr Manning in its list of three preferred candidates | Upheld |
| 19 PSC failed to take account of relevant consideration that Mr Kalaut and Mr Yakasa satisfied all criteria | Refused |
| 20 Real or apprehended bias by the Minister for Police | Refused |
| 21 Breach of natural justice arising from defeat of applicants’ legitimate expectations | Refused |
107. In summary, I have refused all grounds of review other than those relating to the first primary argument, which are numbered 16(a), 16(b), 16(c)(i), 17 and 18.
108. In upholding the latter, it must be observed that they overlap considerably and are repetitious in nature. I have also taken account of an argument by Mr Wood that the applicants were granted leave for judicial review of the decision of the National Executive Council to advise the Governor-General to appoint Mr Manning as Commissioner of Police and Secretary of the Department of Police, yet the bulk of the grounds of review challenge the recommendations of the Public Services Commission. That is a useful observation, as the order of this Court of 14 May 2020, granting leave, is expressed in the following terms:
Pursuant to Order 16, Rule 3 of the National Court Rules, leave is granted to the plaintiff [the applicants] to apply for judicial review of the decision of the National Executive Council of 6 December 20[19] to advise the Head of State to appoint the fifth respondent as Commissioner of Police and as Department Head for Police on the proposed grounds of review set out in the Order 16, Rule 3(2)(a) statement filed 9 April 2020.
109. However, I consider that the terms in which leave was granted has no bearing on the determination of the grounds of review, as repetitious as they are. The grounds of review have been sufficiently clearly drafted so as to focus on the first primary argument of the applicants: that Mr Manning’s appointment is unlawful.
ISSUE 4: WHAT ORDERS SHOULD THE COURT MAKE?
110. As certain grounds of review (those numbered 16(a), 16(b), 16(c)(i), 17 and 18, being the applicants’ first primary argument) have been upheld, the decision of the National Executive Council of 6 December 2019, is susceptible to judicial review.
111. It does not necessarily follow that the Court will make the declarations and orders sought by the applicants. In any judicial review the court’s determination of the review proceeds in two stages:
(a) determining whether an applicant has proven one or more grounds of review, and if yes –
(b) deciding as a matter of discretion what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).
112. The remedies sought by the applicants are set out in the notice of motion filed on 19 May 2020 under Order 16, Rule 5 of the National Court Rules, subsequent to the granting of leave for judicial review:
113. Mr Wood submitted that all relief should be refused due to defects in the notion of motion and undue delay in commencement of the proceedings.
114. The alleged defects are to do with the failure of paragraphs 2, 3, 4 and 5 to refer to the relevant provisions of Order 16 of the National Court Rules. I reject that submission. The jurisdictional basis of the orders sought in those paragraphs is adequately stated.
115. As to the alleged delay, this issue was dealt with when granting leave for judicial review. Mr Wood is correct in saying that the issue can be readdressed at the substantive hearing of the judicial review. However, he has raised nothing new or pointed to anything overlooked when leave was granted. The decision the applicants want reviewed is the decision to appoint Mr Manning published in the National Gazette on 10 December 2019. The applicants commenced the proceedings on 9 April 2020. Even if the four-month period referred to in Order 16, Rule 4 of the National Court Rules were rigorously enforced, the applicants were within time. They have prosecuted the proceedings diligently. The trial commenced in June 2020 and has only been delayed because of the actions of the Attorney-General in commencing proceedings in the Supreme Court and obtaining a stay of these proceedings in the Supreme Court.
116. The first point to make in determining the appropriate remedies is that judicial review remedies are inherently discretionary in nature. All remedies sought might be granted. All might be refused. Some might be granted. Some might be refused. All such options are available to be exercised, after a judicial consideration of the options, of course.
117. The second point is the Court is not confined in its determination of choice of remedy to what the applicants have sought. I adopt the position of the majority of the Supreme Court (Amet CJ and Los J) in Application by John Mua Nilkare [1998] PNGLR 472, as I did in the recent case of Namah v Leadership Tribunal (2020) N8415. In judicial reviews, full voice and effect must be given to s 155(4) of the Constitution when the Court is exercising its discretion as to remedies in cases where an applicant has proven one or more grounds of judicial review. Section 155(4) (the National Judicial System) states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
118. In cases where an applicant succeeds with a ground of judicial review, the Court will look at all the circumstances of the particular case before it, to craft a proper remedy, such as is necessary to do justice in those circumstances. This was the principle highlighted by Mr Sheppard, counsel for the applicant in Namah v Leadership Tribunal, in his submission, underlined by the decision of the Supreme Court in Mision Asiki v Manasupe Zurenuoc (2005) SC797, in which it was held:
It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:
... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.
The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.
The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the first respondent’s decision of February 2001 – to not accept the Public Services Commission’s recommendation – that has been found to have been infected by error of law and in breach of the principles of natural justice. The decision that was made was wrong in law and flagrantly so. It cannot stand and therefore it will be quashed. The appellant’s Order 16, Rule 3(2)(a) statement did not expressly seek such an order but we consider that it is sufficiently encompassed by the order for reinstatement that has been expressly sought. It follows that the first respondent’s decision not to accept the Public Services Commission’s recommendation is void.
119. I now summarise the relief sought and indicate whether it will be granted.
1 - order that the decision of the National Executive Council on 6 December 2019 to appoint the fifth respondent as the Commissioner of Police and Secretary to the Department of Police be reviewed – this order will be granted in effect, noting however that the National Executive Council did not appoint Mr Manning, the appointment was made by the acting Governor-General, acting on the advice of the National Executive Council.
2 - declaration that the decision by the National Executive Council on 6 December 2019 to appoint the fifth respondent as the Commissioner of Police and Secretary to the Department of Police is null and void and of no effect – this order will be granted in effect, noting again, however, that the National Executive Council did not appoint Mr Manning, the appointment was made by the acting Governor-General, acting on the advice of the National Executive Council.
3 - order that the Public Services Commission’s decision made on 7 October 2019 to shortlist Sylvester Kalaut, Fred Yakasa and David Manning as candidates for the position of Commissioner of Police and Secretary to the Department of Police be quashed – I will not make such an order as it is unnecessary to do so and it is a little misleading to refer to the opinion of the Public Service Commission dated 7 October 2019 as a “decision”.
4 - order that the National Executive Council’s decision no NG154 of 2019 dated 6 December 2019 appointing the fifth respondent as the Commissioner of Police and Secretary to the Department of Police be quashed forthwith – this order is a natural consequence of determination of the grounds of review, however I will qualify the timing of the order.
5 - order that the Public Services Commission compile a new recommendation, only including the names of the first and second applicants and another qualified candidate from the other shortlisted candidates – I will not make this order as it is unnecessary and I consider that the respondents should be permitted to decide how appropriately to respond to the Court’s order.
6 - order that the National Executive Council make a decision to appoint a new Commissioner of Police and Secretary to the Department of Police on the said recommendation within seven days – this order is also unnecessary.
7 - costs of and incidental to these proceedings – yes, this is an appropriate order.
8 - such further or other relief as this Honourable Court deems fit – yes, other orders are appropriate.
9 - time for entry of these orders be abridged – this is unnecessary as I will build into the order a specific time for its enforcement.
CONCLUSION
120. It was an error of law and ultra vires on the part of the Public Services Commission to, without highlighting the issue surrounding
the absence of tertiary qualifications, include David Manning in its preferred list of candidates, knowing that the successful candidate
would be appointed to two positions, Commissioner of Police and Secretary of the Department of Police, and it being clear that David
Manning was not qualified for one of those positions.
121. It was an error of law and ultra vires on the part of the National Executive Council to advise the Governor-General to appoint David Manning as Commissioner of Police and Secretary for the Department of Police, as David Manning was not qualified to hold office as Secretary for the Department of Police.
122. The positions of Commissioner of Police and Secretary for the Department of Police are two separate positions. The fact that the position of Commissioner is the dominant position created by the Constitution does not mean that the qualifications for appointment to that position (which do not include possession of tertiary qualifications) override or subsume the qualifications for appointment as Secretary for the Department of Police. Rather it is the case that the qualifications for appointment as Secretary for the Department of Police are in addition to the qualifications for appointment as Commissioner of Police.
123. There was one decision made by the Governor-General for appointment of David Manning as Commissioner of Police and Secretary for the Department of Police. It would be impractical and undesirable to declare that only his appointment as Secretary for the Department of Police was affected by error of law. The illegality attending his appointment as Secretary for the Department of Police permeated the decision made on his appointment to the two positions.
124. To allow the respondents time to take steps to avoid uncertainty in superintendence, efficient organization and control of the Police Force, the orders will take effect seven days from now.
125. For the above reasons the following order is made.
ORDER
Judgment accordingly.
_________________________________________________________________
Dotaona Lawyers: Lawyers for the Applicants
Solicitor-General: Lawyer for the First, Second, Third, Fourth & Sixth Respondents
Ashurst Lawyers: Lawyers for the Fifth Respondent
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