N10143
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 48 OF 2022(IECMS)

IN THE MATTER OF JUDICIAL REVIEW UNDER 
ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
PROFESSOR FR JAN CZUBA
Plaintiff

AND:
HON WESLEY RAMINAI in his capacity as MINISTER FOR DEPARTMENT OF HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
First Defendant

AND:
DR FRANCIS HUALUMONI as the ACTING SECRETARY FOR THE DEPARTMENT OF HIGHER EDUCATION RESEARCH SCIENCE & TECHNOLOGY
Second Defendant

AND:
HON JOSEPH SUNGI in his capacity as THE MINISTER 
FOR PUBLICE SERVICE
Third Defendant

AND:
APEO SIONE in his capacity as THE CHAIRMAN
 OF PUBLIC SERVICE COMMISSION
Fourth Defendant

AND:
PUBLIC SERVICE COMMISSION
Fifth Defendant

AND:
TAIES SANSAN
Sixth Defendant

AND:
HON JAMES MARAPE in his capacity as THE PRIME MINISTER AND CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Seventh Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Eight Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani:   Dingake J
2022:    19th August
2023: 28th February

JUDICIAL REVIEW – motion for substantive review after grant of leave – plaintiff seeks review of decision of the sixth defendant to revoke his appointment as Secretary of Department of Higher Education, Research, Science and Technology (DHERST) - whether the revocation or termination of Plaintiff’s employment was unlawful and offended sections 193 (1C) of the Constitution (as amended) and 31 (C) of the Public Service (Management) Act 1995 and/or violated the principles of natural justice and therefore liable to be reviewed and or set aside - Defendants concede that the decision sought to be reviewed was taken in breach of the aforesaid sections that required them to dismiss the Plaintiff upon recommendations of the Public Service Commission (PSC) -  defendants also concede they did not afford the Plaintiff the opportunity to be heard – plaintiff treated unfairly by defendants – proper processes not followed in terminating plaintiff from employment – judicial review upheld – plaintiff reinstated

Case Cited:

Papua New Guinean Cases
Isaac Lupari v Sir Michael Somare (2008) N3476
Mission Asiki v Manasupre Zurenouc (2004) SC797

Overseas Cases
John v Rees (1970) Ch D 345
Smith v Texas[1914] USSC 156; 233 U.S. 630; 34 S.Ct. 681; 58 L.Ed. 1129; No. 268
Arnett v Kenndy, 416 US 134 (1974)
Perry v Sindermann 408 US 593 [1972] USSC 174; 92 S.Ct. 2694; 33 L.Ed.2d 570; No. 70—36
Bell v Burso (420)
Massachusetts B D of Retirement v Murgia [1976] USSC 141; 427 U.S. 307; 96 S.Ct. 2562; 49 L.Ed.2d 520; No. 74-1044
Olmstead v United States [1928] USSC 133; 277 U.S. 438; 48 S.Ct. 564; 72 L.Ed. 944; No. 493.; No. 532.; No. 533

Counsel:

Mr. Edward Sasingian, for the Plaintiff
Mr. Kevin Kiponge, for the First Defendants
Mr. Newman Yano, for the Second, Third, Fourth & Fifth Defendants

JUDGMENT
28th February, 2023

1.	DINGAKE J:	This is a decision of the court on a contested application for Judicial Review of the decision of the National Executive Council dated the 15th of March 2022, revoking the appointment of the Plaintiff as Secretary of the Department of Higher Education, Research, Science and Technology (DHERST).

2.	At all material times hereto, the Plaintiff was the Secretary for the Department of Higher Education, Research, Science & Technology (DHERST). He was employed in April 2019 on a four (4) year contract ending in April 2023.

3.	Aggrieved by the aforesaid revocation, the Plaintiff filed a leave application for judicial review proceedings against the Defendants.

4.	The Plaintiff was granted leave by this court to review the decision to revoke or terminate his contract of employment on the 4th of May 2022 and on the 11th of May 2022, this court also stayed the decision of the Defendants.

5.	The Motion for substantive review was filed on the 16th of May 2022.

6.	The issue(s) that fall for determination by this court is/are whether the revocation or termination of the employment of the Plaintiff was unlawful, for offending sections 193 (1C) of the Constitution (as amended) and 31 (C) of the Public Service (Management) Act 1995 and/or for violating the principles of natural justice and therefore liable to be reviewed and or set aside.

7.	The nub of the case of the Plaintiff is that the decision of the Defendants more particularly that of the Eighth Defendant, is liable to be reviewed and set aside as unlawful because it was taken in breach of section 193 (1C) of the Constitution and section 31 (C) of the Public Services (Management) Act (PSMA) 1995. He also contends that the termination of his employment was done without forewarning or otherwise affording him an opportunity to be heard in defiance of the principles of natural justice.

8.	The Defendants on the other hand do not deny that the decision sought to be reviewed was taken in breach of the aforesaid sections that required them to dismiss the Plaintiff upon recommendations of the Public Service Commission (PSC), it being common cause that the Commission was not consulted and or did not make any recommendation. They also do not deny that they did not afford the Plaintiff the opportunity to be heard.

9.	The nub of the case of the Defendants is that the Plaintiff did not qualify to be employed owing mainly to his non-citizenship and diplomatic status.

10.	The details of the above submission are that:

i)	The Plaintiff is a non-citizen.
ii)	He does not have a PNG employment visa.
iii)	He lives in PNG under a religious visa.
iv)	He has been appointed as honorary consul of the Republic of Poland.

v)	Section 10 of the Diplomatic and Consular Privileges and Immunities Act and Article 67 of the Vienna Convention on Consular Relations prevent the Plaintiff from all personal services and all public service of any kind which includes his appointment as Secretary of the DHERST.

vi)	Plaintiff failed to disclose his consular status prior to accepting the appointment as Secretary for the DHERST.

vii)	Clause 15.12 of the Plaintiff’s contract of employment provides for revocation of the contract on State interest.

viii)	Plaintiff is not entitled to reinstatement, if need be, he may pursue other reliefs in damages.

ix)	Consequently, the Independent State of Papua New Guinea was forced to breach an international convention, namely, Article 67 of the Vienna Convention when allowing the Plaintiff to the PNG public service as Secretary of the DHERST.

11.	It is plain to me that all the above submissions speak to the merits of the matter. I shall revert to this point later in my judgment.

12.	The Defendants contend that for the reasons stated above it was not necessary to comply with the principles of  natural justice.

13.	The Plaintiff’s grounds of review are unnecessarily detailed, and it is not necessary to reproduce them in any detail, save to say there are anchored on two major grounds being breach of the Constitution and the Public Service Management Act and the principles of natural justice.

14.	Essentially, the Plaintiff contends that the Eight Defendant committed an error of law when it revoked his appointment as Departmental Head without a mandatory recommendation from the Public Service Commission as required under Section 193(1C) of the Constitution, 31C of the Public Service Commission Act 1995.

15.	The Plaintiff also argues that the Eighth Defendant committed an error of law when it appointed the Second Defendant to continue acting on the position as Departmental Head without any recommendation from the Public Service Commission contrary to Section 193 (1B) of the Constitution and Section 31B of the Public Service Management Act 1995.

16.	It is also contended by the Plaintiff that the Eighth Defendant’s decision to advice the Head of State to revoke the appointment of the Plaintiff as the Secretary for Department of Higher Education, Research, Science and Technology failed to set out any grounds for such revocation under Section 193 (1C) of the Constitution, or Section 31C of the Public Service (Management) Act, or Clause 15.1 of his Contract of Employment and therefore the NEC decision is defective and null and void.

17.	According to the Plaintiff, the Eighth Defendant also committed an error of law to revoke the appointment of the Plaintiff in NEC Decision 71 of 2022 without first revoking the previous NEC Decision No. 80 of 2021 which suspended the Plaintiff and was pending the report from the Sixth Defendant in her capacity as the Chairperson of the Independent Investigative Committee.

18.	In order to assess whether there is any merit in the Plaintiff’s grounds it is necessary to set out the constitutional and legal framework governing termination and an appointment of an office holder of which section 191(IC) and (1B) refers – and it being common cause that the Plaintiff and the Second Defendant were such office holders.

The Constitutional and Legal Framework
Constitution Section 193 as amended.
Section 193 of the Constitution reads:
“(a)	by inserting after Subsection (1) of the following subsections:
(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.
(1B)	All temporary appointments to offices to which Subsection (1)(a), (g) or (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council in accordance with a recommendation by the Public Services. Commission following procedures prescribed by or under an Act of the Parliament.
(1C)	The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Service Commission following procedures prescribed by or under an Act of the Parliament. (emphasis mine).
(1D)	The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by Head of State, acting with, and in accordance with, are commendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.
Section 31C of the Public Service (Management) Act 1995.
“31C	Procedures Relating to Revocation of Appointments of Departmental Heads.
The procedures relating to the revocation of appointments of Departmental Head referred to in Section 193(1C) (appointments to certain offices) of the Constitution as follows:
(a)	The Commission –
i)	May, on its own volition; or
ii)	Shall, on receipt of a request from the National Executive Council for revocation of the appointment of a Departmental Head accompanied by a written statement by the Minister specifying the grounds for requesting the revocation (being grounds consistent with the grounds for revocation of appointment in a contract of employment entered into by that Departmental Head under Section 28), refer to matter to the Departmental Head of Department of Personnel Management.
iii)	To investigate the allegations and circumstances; and
iv)	To report thereon to the Commission within 30 days from the date of reference.
(b)	The Departmental Head of the Department of Personnel Management shall –
i)	Investigate the allegations and circumstances relating to any matter referred to him under paragraph (a); and
ii)	Report thereon to the Commission within 30 days period referred to in paragraph (a) (iv).
(c)	The Commission shall –
i)	Consider the report made to it under paragraph (b) (ii); and
ii)	Make, or cause to be made, and consider such further investigations (if any) as it considers necessary; and
iii)	On the basis of the report and the results of such further investigations (if any), recommend to the National Executive Council whether or not the appointment of the Departmental Head should be revoked.
(d)	Where the Commission recommends the revocation of appointment of a Departmental Head, the National Executive Council shall advise the Head of State to revoke the appointment.”
Section 31B of the Public Service (Management) Act 1995.
“31B	Procedures Relating to Temporary Appointments of Departmental Heads.
The procedures relating to the temporary appointment of Departmental Heads referred to in Section 193(1B) (appointment of certain offices) of the Constitution are as follows:
(a)	Where the need to make a temporary appointment of a Departmental Head arises, the Departmental Head of the Department of Personnel Management shall notify the Commission accordingly.
(b)	The Commission shall –
(i)	Consult with the Central Agencies Co-ordination Committee and with the Minister responsible for the Department concerned; and
(ii)	Submit the name of person to the National Executive Council as recommendation for appointment as a Departmental Head of the person recommended under paragraph b(ii).”

19.	I have considered the above constitutional and legal framework, the totality of the evidence filed of record, and the submissions of the parties.

20.	The Plaintiff in his evidence, more particularly as contained in his Affidavits filed on the 29th of April 2022, (Document No. 6) and one filed on the 10th of June 2022 (Document No. 16) established clearly that the NEC did not have the benefit of the recommendation of PSC before taking the decisions under challenge or sought to be impugned. This much is also confirmed in the Affidavit of Taies Sansan, the Sixth Defendant, filed on the 19th of July 2022.

21.	The above evidence has not been challenged in anyway and stands to be accepted as the truth, as I hereby do.

22.	In the premises, I have no hesitation in holding that the Eight Defendant breached the provisions of section 193 (1C) of the Constitution and section 31 (C) of the Public Service (Management) Act 1995 in revoking or terminating the employment of the Plaintiff without the recommendation of PSC.

23.	The evidence filed of record also establishes that the temporary appointment of the Second Defendant was not made with the input of the PSC as contemplated by Section 31B of the Public Service (Management) Act 1995. Such an appointment was accordingly illegal. 

24.	All the above breaches of the law were admitted by Mr. Kiponge, learned counsel for the Defendants, on his feet during the hearing of this matter. The above concession notwithstanding, Mr. Kiponge still persisted in opposing the relief sought by the Plaintiff, mainly on the basis that, for the reasons earlier stated, the Plaintiff did not qualify to be employed in the first place.

25.	In so submitting, Mr Kiponge seemed to be oblivious of the fact that judicial review is concerned primarily with the process of decision making and not necessarily the merits of the case. The merits of the case are not the concern of this court. It seems plain to me that Mr. Kiponge’s submissions capture in summary form at paragraph 10 of this judgment all relate to the merits of the case and not the process of how the decisions being challenged were taken.

26.	Having regard to the evidence and the constitutional and legal framework reproduced earlier, I am satisfied that the Plaintiff has made out a case of illegality and or error of law as pleaded. This is sufficient to warrant this court to quash the decision of the Eight Defendant.

27.	In my considered opinion, it is not necessary to discuss every other ground relied upon by the Plaintiff to review and quash the decision of the Eighth Defendant having regard of the conclusion I have reached on illegality. However, in the event, I am wrong in holding as I do that the decision of the Eighth Respondent was illegal, for the reasons stated above, I would still review and set aside the decision complained of on the basis that the Eighth Respondent failed to comply with the rules of natural justice before revoking or terminating the Plaintiff’s employment.

28.	The principles of natural justice are about fairness. It cannot be fair to take an adverse decision against an individual without first hearing him or her.

29.	The principle of natural justice is entrenched in the Constitution of Papua New Guinea (PNG). Section 59 of the Constitution of PNG provides. 
“Principles of natural justice.
(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.”

30.	The duty to act fairly is sacred. It is a principle of divine justice that is traceable to the events that occurred in the Garden of Eden – where Adam was afforded a hearing before being condemned.

31.	Ordinarily, a duty to act in accordance with the principles of natural justice would arise in the exercise of a power to deprive a person of his livelihood or legitimate interest or expectation, or to impose a penalty on him.

32.	In this case, the Defendants do not deny that they condemned the Plaintiff unheard, contrary to the precepts of the Constitution and the common law. Instead, they argue among other things, as indicated earlier, that he was a non-citizen at the time he was employed and or a diplomat, and not entitled to be employed. This argument speaks to the merits of this matter, which, as I earlier stated, is not the concern of this court. This court is concerned with the question whether due process was followed before terminating the Plaintiff’s employment of contract.

33.	It would not be wise to second guess or speculate, what the Plaintiff, would have said in answer to the charges, or allegations against him captured in paragraph 10 of this judgment, if he was afforded an opportunity to be heard, let alone to presume that the charges or allegations were unanswerable.

34.	It was stated in the case of John v Rees 1970 cth, 345, 402 that:
“The path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges, which in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered change …”

35.	In my opinion, nothing best summarizes the wisdom of hearing a party before an adverse decision is taken than the above quote. In my mind, revocation or termination of an individual’s employment is a grave matter. It is a decision that cannot be taken lightly or without affording the Plaintiff the right to be heard.

36.	In the case of Smith v Texas, 233 US 630 at 641, the Court stated that:
“In so far as a man is deprived of the right to labor his liberty is restricted, his capacity to earn wages and acquire property is lessened and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling.” (See also Arnett v Kenndy, 416 U.S. 134 (1974); Perry v Sindermann, 4008 U.S. 593 (1972); Bell v Burso, (420).

37.	It was further held in the case of Massachusetts B D of Retirement v Murgia 427 US (1970), Marshall J, Dissenting that:
“The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforce idleness.”

38.	In my considered opinion, the Eighth Defendant should lead by example in obeying the precepts of the Constitution and the Laws of the country.

39.	Many years ago, in the famous case of Olmstead v United States 277 US 438 (1928) at 485, one of the foremost luminaries of the US bench, Justice Brandeis wrote:
“In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good for or for ill, it teaches the whole people by its example. … If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself, it invites anarchy. (See 277 US 438 (1928) at 485.

40.	Having concluded that the decision of the Eighth Defendant is liable to be reviewed and set aside the question that remains to be answered is whether the remedy of reinstatement that the Plaintiff has asked for should be granted. 

41.	The Plaintiff’s contract comes to an end in April 2023. The Defendants are opposed to the reinstatement of the Plaintiff. They argue that it is not in the interest of justice to reinstate him given that his contract comes to an end on the 23rd of April 2023.

42.	It is trite law that the remedy of reinstatement is discretionary. It is usually granted where the court is persuaded that the interest of justice require that the Plaintiff be reinstated.

43.	The National Court, in Isaac Lupari v Sir Michael Somare (2008) N3476 discussed the issue of reinstatement and stated that “the Court must be persuaded that “the interest of justice requires reinstatement”. 
44.	The National Court referred to the Supreme Court decision in Mission Asiki v Manasupre Zurenouc (2004) SC797, which stated the same principle.

45.	The National Court in Lupari v Somare (supra) also stated that, “The case authorities, both common law cases and our own cases show that whether an employee is reinstated depends on a proper consideration and application of several important principles and associated factors, which in my view have direct correlation to the twin-test in O 16 r 1 (2). The National Court identified the following principles as being applicable:
(1)	The first is that in a case where the relationship between the employer and the employee prior to and subsequent to the dismissal has completely or seriously broken down to such an extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, mandatory injunction will not be granted to compel either the master or the servant or both to continue a personal relationship.
(2)	The second principle follows the first. Damages, rather than specific performance or mandatory injunction or reinstatement, is usually the appropriate remedy for breach of contract for personal services.
(3)	The third principle is that reinstatement or mandatory injunction particularly in a judicial review matter is an equitable relief and its grant must be consistent with or in furtherance of principles of equity.
(4)	The fourth principle relates to public interest, whether it justifies the Plaintiff’s reinstatement.
(5)	The fifth principle is the fact that the position that the Plaintiff once occupied is available or vacant at the time of trial to be filled by an acting or substantive appointment, is a relevant consideration but it is not an important consideration.

46.	I have considered all the above principles including that the Plaintiff’s contract is coming to an end on the 23rd of April 2023. 

47.	We live in an era where the exercise of public power must be justifiable. The rule of law demands nothing less. 

48.	Every case must turn on its own circumstances. In this case, it has not been suggested or proven that the relationship between the employer and employee has seriously broken down to such an extent that mutual trust required of each other no longer exists. I have considered that the violation of the law was pervasive and glaring. Based on the concessions by Mr Kiponge, in court that the Constitution and the Public Service Management Act were not followed, it seems to me that this is a matter which should not have been allowed to go to trial. The law should have been allowed to prevail. If that was done the Plaintiff may have long been allowed to return to duty because of failure to follow due process.

49.	The glaring violation of the law by the Defendants does not reflect well on them.

50.	I have also considered that the Second Defendant was illegally appointed in his current role. Faced with all the above, and trying as best as I can to balance all the relevant factors outlined earlier and the scales of justice - I am persuaded that considerations of fairness and or equity tilt the scales in favour of reinstatement.

51.	In this jurisdiction the courts have used their equitable inherent supervisory powers in terms of Section 155 (4) of the Constitution to order reinstatement of officers terminated unlawfully where the circumstances of the case warranted, and reinstatement was the fair and adequate remedy for the Plaintiff. (Bon v Nakgai (2001) PNGLR 18.) I am inclined to do the same as in my view the Plaintiff was treated most unfairly.

52.	In the result, for all the reasons stated above, I am satisfied that the Plaintiff has made out a case for the relief sought.

53.	In the result, the Court orders as follows:
1)	An order in the nature of certiorari pursuant to Order 16 Rule 1(1) of the National Court Rules and Section 155(4) of the Constitution and the inherent powers of the court to bring into this Honorable Court and to quash the decision of the Eight Defendant made on 15th March 2022 which decision:
i)	Revoked the Plaintiff’s appointment as the Secretary for Higher Education, Research, Science and Technology; and
ii)	Continued the acting appointment of the Second Defendant as the Acting Secretary for Department of Higher Education, Research, Science and Technology.
2)	A declaration that the National Executive Council decision made on the 15th of March 2022, is in contravention of Section 193 (1C) and 193 (1B) of the Constitution therefore the National Executive Council’s decision is null and void.
3)	A declaration that the National Executive Council’s decisions are contrary to Sections 31B and 31C of the Public Service (Management) Act 1995, which provides for the procedures relating to temporary appointments of department heads and the procedures relating to revocation from office of a departmental head, and therefore the decision by the National Executive Council is illegal and is therefore null and void.
4)	The Plaintiff is hereby reinstated in his job as Secretary for the Department of Higher Education, Research, Science & Technology (DHERST), with immediate effect.
5)	The Defendants to pay the Plaintiffs costs – such costs to be taxed, if not agreed.
6)	That the time for entry of the order be abridged to the time of settlement of the orders which shall take place forthwith.
_______________________________________________________________
Sasingian Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General:  Lawyers for the Defendants