Sanga v Public Service Commission [1999] SBHC 44; HC-CC 018 of 1999 (30 April 1999)

<

HIGH COURT OF SOLOMON ISLANpan>

Civil Case No 018/99

JOSES WAWARI SANGA

v

<

PUBLIC SERVICE COMMISSION

AND HAIKIU BAIABE

High of Solomon Islands

(FRANK KABUI, J)

Civil Case No. 01899

Hearing: 22nd April 1999

Judgement: 30th April 1999

Counsel: ri for the Applicant

A. Radclyffe for the 2nd Respondent

P. Afeau for the First and Third Respondents

JUDGMENT

/p>

By an Originating Summons filed n 19th January 1999, the Applicant seeks the determination tion of a number of questions posed in paragraphs 1 - 15 of his Summons. He also seeks consequential orders in paragraph 16. The Applicant later amended his Summons by filing an Amended Originating Summons on 19th March 1999 expanding the scope of the same paragraphs 1 - 16 of his first Summons referred to above. The questions posed for the determination of this court in the Amended Summons are as follows: -

1. &nbbsp; &nsp; whether he re mendatiodations and reasons, if any, for the termination of the Applicants by way of premature retirement and redundancy were made in iance ;

2.&nbbsp; wrethe the Fi st Rest Respondent properly received any case or submission, made in compliance with law, requiring its decision for termination of employment of Permanent Secretaries by way of premature retirements and or redundancies;

3. ; if the answers quto questions 1 and 2 herein are in the affirmative, whether the First Respondent made its decision in accordance with and in compliance with law;

4. & in t in the al alternaternative, if the answers to questions 1 and 2 herein are in the negative whether the First Respondent had jurisdiction to receive and decide on rminaof ement of the Applicants ants in thin this pais particular case;

clas class="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 5. if the answer wer queo question 4 herein is in the affirmative, whether the decision of First Respondent made on or about 3 November, 1998 for termination of Permanent tarie rease, proper and made in complcomplianceiance with with law;

6. &nnbsp;; &nsp; &nsp; in the rnlternative, ive, if the answer to question 4 is in the negative, whether the First Respondent’s decision to terminate Permanent Secretaries made on or about 3 November, 1998void f no t;>

8. &nbbsp; if the answer to queo question 7 herein is in the negative, whether the purported termination of the Applicants by way of redundancy was ass="rmal" style="text-iext-indentndent: -34: -34.9pt;.9pt; marg margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">

9.  p;&nbbsp; if the answeansweanswer to question 8 herein is in the affirmative, whether the action of the First Respondent,ugh tcreta the Prime Minister, in advertising vacancy notices for the postsposts of P of Permanermanent Secretaries in the Public Service dated 13 November, 1998 (Vacancy Notice 24/98), was void;

10. & if the the answer to question 9 herein is in the affirmative whether the appointments of the Second Respondent and other secretaries to ministries were void; class="MsoNormal" style="text-indent: -34.9p34.9pt; mat; margin-rgin-left: 70.9pt; margin-top: 1; margin-bottom: 1">

clas class="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 11. & whetin , act andt andt and in law, the posts of Secretaries to Ministries to which the Second Respondent and other secret wereinted Perm Secretaries posts;

las class="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 12. if the answer to ques question 11 herein is in the negative, whether the Second Respondent and other secretaries can legally perform the statutory functions and duties vested in Pent Sariesaw;

>

13.; in the alternative, ive, if the answer to question 11 herein is in the affirmative, whether the appointments of the Second Respondent and other secretaries to the posts of Permanent Secretaries were void since the holders of the said Permanent Secretaries posts were not or could not have been made redundant in the circumstance;

clas class="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 14. & whethe t ppointmointmointments of the Second Respondent and other secretaries by the First Respondent were based on recomtions sele panerequired b y law;

15. if the answer to questiuestion 14 herein is in the negative, whether the said appointments were void;

: 1">

Paragraph 16 is in these terms,

“subject to the Court’s determination of the questions herein rain raised, the Applicants seek the following declarations and orders: -”

class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 106.35pt; margin-top: 1; margin-bottom: 1"> a) &nbssp;&nnbsp; a declaratiaratiaration that the Applicants are still Permanent Secretaries;

>

b) & a declanatio that that the appointment of the Second Respondent and other secretaries were void ab initio;

clas class="MsoNormal" style="text-indent: -35.45pt; margin-left: 106.35pt; margin-top: 1; margin-bottom: 1"> c) &nbssp; a declaration that that the Second Respondent and other secretaries have no powers to exercise statutory powers and functions vested in of of Pent Saries /span>

d) &nnbsp;;&nspp;nbsp;nbsp; anp; an injunction to restrain the Second Respondent and other secretaries from performing any statutory functions vested in the offices of Permanent Secretaries;

/b>

e) ;&nbssp; &nsp; asp; an injunction estraestraining officers in the Transport Pool in the Ministry of Transport Works and Communications from rng ves giv the cants as part of their heir termsterms of employment as Permanent Secretarietaries;

f) &nbbsp; &nsp; an order that Respondspondents meet the costs of this application; and

i>g) & p;&nssp&nbsp sup; such other o asrs as this Honourable Court deems just and equitable in the circumstance.

The Applicant has come to this Court on behalf mself and other former Permanent Secretaries whose in interests are the same in this matter. The background to the Applicant’s case can be stated thus.

The Facts

The Applicant was a public officer in the Public Servicee 6th December, 1976. He prHe progressed within the ranks in the Public Service until he was appointed a Permanent Secretary on 11th October, 1993. As a result of the National General Elections in 1997, the Solomon Islands Alliance for Change Government (SIAC) came into power in August 1997 headed by Prime Minister Bartholomew Ulufa’alu. One of the immediate concerns of the SIAC Government was the ailing economy of the country. This state of affairs became the commitment of the SIAC Government. This meant taking drastic measures to put the economy back on track as soon as possible. This further meant the formulation of an appropriate policy to correct this situation. That policy is now known as the Restructure Reform Programme. Its implementation was to be immediate for obvious reasons. Task Forces were set up. The concern of Task Force 1 was privatisation and finance. The concern of Task Force 2 was Public Service Reform. The concern of Task Force 3 was economic planning and finally the concern of Task Force 4 was business and commerce. The mandate of Task Force 2 was the review of the Public Service to bring about changes as it was considered that whilst the Public Service was costly it was not effective. Task Force 2 completed its work in June, 1998 and produced its Report. This Report was produced for the Policy and Structural Reform Committee (PSRC) chaired by the Prime Minister. The Report went to Cabinet on 25th June, 1998 for its consideration and approval Cabinet approved the recommendations in the Report and directed that the Prime Minister’s Office (the PMO) implement the Report as far as it was practicable. The Report then went to the Public Service Commission (the PSC) on 14th July, 1998 for information and consultation purposes. At its meeting on 17th July, 1998, the PSC considered and commented upon the Report. It returned again to the PSC on 21st July, 1998. The PSC again met on 22nd and 23rd July 1998 to consider it. On 27th July, 1998 Mr. Hiele, the Secretary to Cabinet (the SPM) in the PMO made a submission to the PSC for the premature retirement of all Permanent Secretaries including the Applicant. The next day 28th July, 1998, the SPM sent letters of notice of recommendation for premature retirement to all Permanent Secretaries including the Applicant. The Applicant’s response to the SPM’s letter of 28th July, 1998 was both lengthy and detailed. It was dated 26th August, 1998. The submission by the SPM on 27th July 1998 was subsequently considered by the PSC on 3rd November, 1998. The PSC then resolved to terminate all the Permanent Secretaries including the Applicant under regulation 73 (c) and (d) of the Regulations, 1979 (the Regulations) by giving them 2 months notice of termination or 2 months salary in lieu of notice. By letter dated 9th November, 1998, the SPM again informed all Permanent Secretaries including the Applicant of the PSC decision and formally giving them 2 months notice of termination of their employment in the Public Service. Also, in that letter, the SPM told them that they would be entitled to receive redundancy payments and payment of school fees for a period of one year etc. The vacant Permanent Secretaries posts were advertised on 13th November, 1998 and were filled on 9th December, 1998. By letter dated 1st December 1998, the Applicant was informed by the SPM that his employment be terminated with effect from 9th December, 1998 and his salary in lieu of notice for the last 25 days be paid accordingly. The Applicant and 13 others were not reappointed to any post in the Public Service. The payment of redundancy money and other benefits were effected as early as 8th December, 1998. The Applicant’s redundancy payment was $43,833.73 credited to his Bank Account on 24th December, 1998. Rent free accommodation for 3 months plus payment of school fees were also granted.

Representation under Regun 76 of the PSC Regulations

The Applicant’s case seems to have been rooted in his representation in his rse to the SPM’s letter of 28th July, 1998. His response as already stated was dated 26th August, 1998 being Exhibit “JWS 4” attached to his affidavit of 19th January, 1999. As I have said, his response was lengthy and detailed. It was an analysis of the salient features of the Report against the background of the relevant Regulations and the relevant provisions of the Constitution. The Applicant concluded in his representation that the reasons advanced as the basis for the impending premature retirement under regulation 73(c) of the Regulations were not reasonable and totally inadequate. If, anything at all, the reasons advanced so far pointed more towards the question of inefficiency under Part VIII of the Regulations than towards the need to facilitate improvements in Government organisation under Regulation 73(c) of the Regulations. The Applicant also ruled out regulation 73(d) (redundancy) as being relevant to the case of Permanent Secretaries. He also raised issues regarding the post of Permanent Secretaries under section 40 of the Constitution and the impartiality of the PSC under section 137(4) of the Constitution etc. He warned that care must be taken in the implementation of the Government’s wish to restructure the Public Service meaning of course that proper procedure under the Regulations and the provisions of the Constitution must be observed. The embodiment of that concern is now before this court by way of the Originating Summons as amended referred to above.

<

The Applicant’s Case

The Applis case raises several issues for determination. First, he alleges that the reasons fons for the termination of his employment by the PSC on 3rd November, 1998 were inadequate to say the least. He says that for premature retirement to take place under regulation 73(c) of the Regulations, there must be reasons necessitating the facilitation of improvements in Government Organization such as corporatisation or privatisation of a Government Department to improve Government Organization. He cites examples of this such as Solomon Telekom Company Limited being the result of what used to be the Telecommunications Division within a Government Ministry and the Solomon Islands Postal Corporation being the result of what used to be the Postal Division of a Government Ministry etc. He says this is not the case at all here where the reasons had nothing at all to do with his ability to perform the duties of a Permanent Secretary. He says no work assessment report had been done on him to measure his suitability as to whether or not he should continue to perform the duties of a Permanent Secretary. This being the case, the reasons stated in the Report were inadequate and totally irrelevant as proper reasons for premature retirement under regulation 73(c) of the Regulations. In fact, he says, the case of Permanent Secretaries neither falls within the meaning of regulation 73(c) (premature retirement) nor within the meaning of 73(d) (redundancy) of the Regulations. Second, he alleges that the PSC never received any proper submission for it to exercise its power under section 116 of the Constitution. By this he means the spirit and intent of regulation 76 of the Regulations were lacking in the process of getting his case and that of other Permanent Secretaries to the PSC for its decision on 3rd November, 1998. As proof of this allegation, he points out that the letter by the SPM of 28th July, 1998, addressed to him was not in accordance with regulation 76 of the Regulations. By this he means the SPM was not the Secretary to the Public, the SPS, who was the proper officer at that time to write such a letter.

Furore, that letter failed to state the reasons why the Applicant should be prematurely rely retired. Third, he alleges that the dis-establishment of the post of Permanent Secretary under section 40 of the Constitution may well be unconstitutional. He says that whilst section 40 of the Constitution remains unamended, there can be no scope for the appointment of supervising officers under section 116 of the Constitution to perform the same or similar duties normally performed by Permanent Secretaries. Besides, he says, the post of Permanent Secretary is permanent whilst a supervising officer can only be at post for a temporary period of time. This being the case, he says, he is still a Permanent Secretary appointed under section 128 of the Constitution. He concludes that whilst he acknowledges the power of the PSC to terminate employment under section 116 as read with section 135 of the Constitution, it must in doing so; observe the procedure laid down under the PSC Regulations.

Mr Nori, Counsel for the Applicant, has conveniently summarised the Amended nating Summons into t three basic questions for the determination of this court. These questions by their very nature require this court to declare that: -

a) &nbssp; & sp;& the Applicant and h hi his likes are still Permanent Secretaries on the ground that the termination of their employment e PSCunlaw/span

b) &nbbsp;& bsp;aphe ntmoit ment ment of the Second Respondent and his likes was void ab initio; and

c) ;&nspp; tse SeconSecond d Respondent and his likes cannot validly exercise the statutory powers of Permanent Secretaries stipulated in the Act of Parliament and elsewhere n theic Se.

The Evidence

The Report of Task Force 2 was done in pursuance of the aim of the Government to reduce the cost of the Public Service to around $130 million a year. The recommendations of the Report did achieve this more or less subject of course to its successful implementation. The projected cost savings were to result from the restructuring of Ministries, redesignation of the posts of Permanent Secretaries, consolidation of Ministries, capping of allowances, freeze on vacancies and rental savings etc. In fact, recommendation 6.2 of the Report suggested that the post of Permanent Secretary be dis-established and a new post of Secretary to the Ministry be established.

The Report having approved by Cabinet on 25th June, 1998 was to be implemented by the Prime Minister’s er’s Office (the PMO) as far as it was practical. The fact is that the PMO comprises the Cabinet and the Public Service Division (PSD). The Head of the Cabinet Secretariat is the SPM and the Head of the PSD is the Secretary to the Public Service, the SPS. The duties of the SPM and the SPS are different although it is understood that the SPM is the Head of the Public Service. As a matter of fact, the SPS who was then Mr. Ganate submitted the Report to the PSC on 14th July, 1998 (Exhibit “GH1”) under a covering letter dated that same day. The purpose of that submission was for consultation with the PSC. Again, the SPS made a second submission to the PSC under a covering letter dated 21st July, 1998. That submission was in response to a PSC decision made on 17th July, 1998. That letter also informed the Secretary of the PSC that the Prime Minister would like the PSC to meet on 22nd July, 1998 in an extra - ordinary Meeting to consider and approve the SPS’s submission. The PSC met on 22nd and 23rd July, 1998. In its conclusion, the PSC suggested that the title “Permanent Secretary” be retained but be down - graded to SS1. It also suggested that the process of terminating and recruiting of public officers be restricted only to posts affected and no longer required by the Government and that the procedure under regulation 76 be followed. Lastly, it suggested that an interview panel be appointed to interview candidates before appointment by the PSC. By letter dated 24th July, 1998, the SPS submitted to the Attorney - General for vetting purposes a draft letter of notice of recommendation for premature retirement intended to be sent to all Permanent Secretaries in anticipation of termination of employment by the PSC. The Attorney General gave his approval of that draft letter that same day. By File Minute dated 27th July, 1998, the SPS authorised Mr. Tozaka to send the letters of notice of recommendation for premature retirement to all Permanent Secretaries.

Also, by File Minute dated 28th July, 1998, the SPS authorthe SPM to sign the letterstters of notice of recommendation for premature retirement except in the case of the SPM where the SPS himself would sign the letter of notice of recommendation for premature retirement. Those letters of notice of recommendation for premature retirement were sent out accordingly. Mr Tozaka is a consultant in the public service recruited to oversee the implementation of the public service restructure programme. In the meantime, Mr. Ganate left the PMO and gone to another Ministry. This was about the first or second week of August, 1998. Ms Anna Garo then became the acting SPS until her appointment was revoked by the PSC on 4th September, 1998. From then onwards the SPM was also the SPS as per PSC Minute 318/98 dated 4th September, 1998. The SPM then in his capacity as the SPS made his submission to the PSC by letter dated 27th October, 1998 for the premature retirement under regulation 73(c) of the Regulations of all Permanent Secretaries including the Applicant. The PSC at its Meeting on 3rd November, 1998 resolved to terminate the employment of all Permanent Secretaries including the Applicant under regulation 73(c) and (d) of the Regulations.

Notice of vacancies caused by the termination of Permanent Secretaries from Government employment was advertised on 13th November, 1998 already referred to above. Interviews for the new posts of Secretaries to Ministries were conducted between the 4th to 7th December, 1998. The PSC at its Meeting on 9th December, 1998 then appointed the new Secretaries to Ministries. The Applicant did not apply for the new posts and was therefore not one of them.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Law

As I have said, the Applicant does not dispute the PSC’s powers to terminate employment of public officers under section 116 as read with section 135 of the Constitution. This is now well settled law in this jurisdiction. He claims no damages for breach of contract. I think the problem here is that Part IX of the Regulations has all the trappings of some of the provisions of the Pensions Act (Cap. 107). The background to this is this. Up until 1976, all public officers who had served in the Public Service for 10 years or more and were eligible for pension rights were awarded pension on retirement from the Public Service. However, certain changes were made to the Pensions Act to accommodate the introduction of the Solomon Islands National Provident Fund Act (Cap. 109). The National Provident Fund scheme was intended to apply to all employees and employers including the Public Service. The main message being put to public officers at that time was that it was more advantageous to join the National Provident Fund scheme than to remain and continue under the Pension Scheme under the Pensions Act. In order to enable public officers to convert from the pension scheme to the National Provident Fund Scheme, an amendment was effected to section 7 (now section 9) of the Pensions Act in 1976. Those who wished to convert from the pension scheme to the National Provident Fund Scheme were to retire from the pension scheme and whatever pensions were awarded to them were to be frozen with payment being made only on satisfying any of the reasons for retirement under section 7 (now section 8) of the Pensions Act. They did not retire from the public service but only from the Pension Scheme. There were also other consequential amendments to the Pensions Act. One of them was the definition of what a permanent non-pensionable office is. The significance of this new definition is that public officers holding permanent non-pensionable posts would not be entitled to pension rights on leaving the public service. Other public officers who had chosen to remain under the existing Pension Scheme did so voluntarily. So there were two categories of public officers in the Public Service. Those who held permanent pensionable offices and those who held permanent non-pensionable offices. There is a third category. Those who joined the Public Service as public officers after the conversion exercise in 1977 would have been direct contributors to the National Provident Fund Scheme. They are also not to be regarded as officers holding pensionable offices. The relevance of this background information is that regulation 73(c) of the Regulations is really a duplication of section 8(1)(a)(iv) of the Pensions Act. The relevant parts of section 8 above are in these terms:-

“8(1) No pension, gratuity on other allowshall be granted under this this Act to any officer except on his retirement from the public service in one of the following cases -

(a) if he retires from public service under the Government of Solomon Islands: -

(i) ...........................

(ii) ...........................

(iii) ...........................

(iv) on compulsory retirement for the purpose of facilitating improvement in the organization of the department to which he belonged, by which greater efficiency or economy may be effected;

(v) ..........................

(vi) ........................."

However, whilst regulation 73(c) uses lesser number of words it does retain the same idea of early retirement from the public service to effect improvement in Government Organisation. The making of Part IX of the PSC Regulations must have been intended to apply to pensionable officers in the public service and also non-pensionable officers whose frozen pensions were payable only if they retired from the public service under any of the circumstances specified in section 8 of the Pensions Act. It does not really matter in my view, if the PSC terminates their employment directly under section 8 of the Pensions Act. Section 116 as read with sections 132 and 135(1) of the Constitution is clear authority for this. This point was laboured to some extent by Ward, CJ. in Buto & Others v The Attorney General (Civil Case No. 194/90 unreported). In my view, Part IX of the PSC Regulations has the effect of confusing the relevant provisions of the Pensions Act. It duplicates the relevant provisions of the Pensions Act with paraphrasing, deletions and additions. It assumes that the PSC as far as its jurisdiction to terminate employment under section 116 as read with section 135 of the Constitution is concerned, is a tribunal of fact and law in that it has a discretion to terminate employment contracts even in the face of the Government’s wish as the employer to lawfully terminate employment contracts. It also assumes that the Pensions Act is not in force. It is a complete tautology to say the least. For those public officers whose posts are not pensionable under the Pensions Act being referred to above as the third category of public officers, Part IX of the PSC Regulations is totally irrelevant because it assumes that on being retired from the public service, they would receive pension under the Pensions Act which is not the case. Chapter B702 of General Orders makes it plain that such officers may be terminated by the PSC by giving them 3 months notice or 3 months salary in lieu of notice. There must of course be reasons for termination but not for the purpose of retirement from the public service suggesting doing so under the Pensions Act but simply termination of employment per se. Regulation 76 would also appear to be a reflection of the first proviso to section 12 of the Pensions Act. The relevant parts of that section are in these terms: -

lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “12. It shall be lawful the Governor General to require an officer to retire tire from service under the Government of Solomon Islands -

(a) ...................; or

(b) ...................; or

(c) where such officer is serving in accordance with the revised conditions of service, at any time after the officer attains the age of forty - five years:

Provided that no officer under the age of fifty-five years shall be retired under the provisions of paragraph (c) hereof unless he has been given notice in writing of the intention to retire him not less than six months before the date upon which such retirement is to take effect:

.............................................."

However, regulation 76 goes further and requires that the rs for making a recommendatindation for retirement must be given to the officer concerned and that any representations, if any, must be made within 30 days after which the case must be submitted to the PSC for a decision. In my view, even if the PSC must terminate employment on the ground of retirement from the public service under section 8 of the Pensions Act, there must necessarily be reasons for doing so. Those reasons are stated in section 8 of the Pensions Act itself. The weight of such reasons must necessarily be a matter of opinion. No comfort can be attributed to the first proviso to section 12 of the Pensions Act for that only applies to officers who had entered the public service prior to 1968. Although regulation 76 may now be regarded as an improvement upon the reasons for retirement from the public service under section 8 of the Pensions Act, compliance with its requirements does not really bar the PSC from terminating employment. Once reasons are given the PSC must act on them. It may query them or ask for further explanation but apart from that, it must act on them. The reason is that the Government is the employer and not the PSC although the PSC must be expected to act impartially in exercising its powers of termination of employment (See Wheeler v The Attorney General [1988/89] SILR 54 at 60). In my view, so long as the officer concerned is informed of the reason for his early retirement that would be enough compliance with section 8 of the Pensions Act or regulation 73(c) as read with regulation 76 whichever is the case. As I have said, it does not really matter so long as the officer concerned is informed honestly of the reasons for early retirement. In practice, termination of employment intended by the Government as the employer is inevitable no matter how many tonnes of reasons are given by the officer concerned to the PSC to do otherwise. This is really the effect of regulation 77 of the PSC Regulations subject of course to the powers of the PSC under the Constitution. The exception of course are cases such as Wheeler v The Attorney General referred to above where a Minister who had no power to terminate an employment contract purported to do so. Michael Konia v Attorney General & Public Service Commission (Civil Case No. 216/97) may well be another category of exception. There, Palmer, J. was dealing with a case of promotion of a public officer followed by what appeared to be a demotion without his knowledge. It was not a case of termination of contract of service. In this case, the office of Permanent Secretary is not a pensionable office within the First or Second Schedule to the Pensions Act. It is therefore a permanent non-pensionable office. It is permanent in the sense that under the Pensions Act, the holder of such office may remain in the public service until he or she attains the age of 50 or 55 under sections 8 and 12 of the Pensions Act. Apart from that, there is no other security of tenure other than termination of employment must be by the PSC and being entitled to receive his or her NPF contributions at the age of 50 under section 2 of the Solomon Islands National Provident Act (Cap.109). As far as I understand the Applicant’s case, this is the correct position. That is, the Applicant and other Permanent Secretaries did not enter into fixed term contracts with the Government. The reason for termination of employment were told to Permanent Secretaries. It was no secret to them. The main reason, amongst other things, for termination of Permanent Secretaries and many others as well in the public service was the need to reduce the cost of the public service. It is Government policy for a good reason. In this case, the reason stated in the SPM’s letter of 28th July, 1998 was the need to facilitate improvement in the public sector. By that time, all Permanent Secretaries would have understood what it was and what it meant. I do not think the PSC would have argued with Government policy in promoting cost - cutting measures in the public service. In fact, the Applicant was fully aware of the content of the Report for he forwarded a long and detailed analysis of the issues therein to the PSC on 26th August, 1998. Mr Nori has however said that the letter of 28th July, 1998 signed by the SPM did not state the reasons why there was the need for the termination of employment in the case of the Applicant and other Permanent Secretaries. That is to say, the Report could not possibly be the sort of recommendation envisaged in regulation 76 of the Regulations. However, the fact is that the SPS at that time was a member of Task Force 2 that produced the Report. It must therefore be the case that the recommendations therein must necessarily be his also. The fact that the letter of 28th July, 1998 was signed by the SPM and not by the SPS does not make much difference as to the status and correctness of that letter. It was authorised by the SPS and on being cross - examined by Mr Nori on his affidavit of 19th April, 1999, Mr Ganate confirmed that fact. There is no doubt that it was done with his personal knowledge. In my view, the reasons for the early termination of employment of the Applicant and other Permanent Secretaries were adequate and reasonable. What choice did they have if the Government as the employer was bent on terminating their employment through the PSC?. The obvious remedy lies in damages. There is no legal obligation by the Government to keep them in employment. A similar case such as this was Buto and Others -v- The Attorney General referred to above. The facts of that case are similar to the facts of this case. The only difference is that in that case, the PSC had exercised its powers under the provisions of the Pensions Act. Then it was told to exercise its powers under regulations 73(a) and (c) of the PSC Regulations. In doing so under pressure from the Government, it decided to waive the requirements of regulation 76 of the Regulations. The order of the Court was that the PSC terminate the employment of the plaintiffs 30 days from the date of the judgment. It should be noted that the Court did not say that because of that procedural error, the plaintiffs should be reinstated or that they remain Permanent Secretaries or appointment of new Permanent Secretaries was unlawful and therefore invalid. Also, the Court accepted premature retirement “to facilitate improvements in Government organisation” as proper and adequate reasons for the termination of the plaintiff's employment.

Another point taken up by Mr. ori was the letter of 27th October, 1998 signed by the SPM SPM being the submission to the PSC for its decision to terminate employment of the Applicant and other Permanent Secretaries. The fact is that the SPM signed that letter in his capacity as SPS having been appointed to that office on 4th September, 1998 as per Minute 318/98. It cannot be said therefore that regulation 76 had not been complied with by the SPS. Again Mr. Nori has said that the PSC was dictated to by the Cabinet and the Prime Minister himself. He also referred to the Cabinet Conclusion on 25th June, 1998 which directed that the Report be implemented by the PMO. It is an undisputed fact that the PMO comprises the Cabinet Secretariat headed by the SPM and the Public Service Division headed by the SPS. I do not think there is any merit in that argument. The Cabinet is merely a collective body of Ministers whose decisions must, as normal practice, be implemented by the appropriate Ministries etc. The PMO is no exception to this practice. He has also referred to the affidavit by the Chairman of the PSC, Mr Tabusasi filed on 30th March 1999 and his answers in cross - examination. The effect of this evidence is that the Prime Minister through the SPM and SPS had brought pressure to bear on the PSC to the extent that the PSC had to rescind its previous decision on 22nd and 23rd July, 1998 and endorsed the Report as submitted. Firstly, the PSC at its Meeting on 22nd and 23rd July, 1998 said that the title “Permanent Secretary” be retained but the level be down - graded to SS 1. Secondly, the procedure under regulation 76 should be followed and the process of terminating and recruiting officers should be restricted only to those officers no longer required by the Government. Thirdly, there should be an interview panel to interview applicants. These points later rescinded at the PSC Meeting on 27th July, 1998 were simply comments obviously arising from the Applicant’s response on 26th August, 1998. It was obvious that the Government wanted the PSC to focus its attention more on the issue of paving the way for the implementation of its policy than on matters of Government policy. There was obviously a sense of urgency and priority. In this respect, I wish to adopt and echo the same sense of feeling and understanding Ward, C.J. had in Buto & Others v The Attorney - General referred to above. At pages 10 - 11, His Lordship said,

<

“What is app is that the Government was anxious to complete the pthe process and were working to remove the Permanent Secretaries from the public service at the same time as they were discussing the new arrangements.

It is important to remember they were dealing with some of the most senior officers in the Public Service. They all held very responsible posts and had been in the Public Service for many years. The Government did not suggest that any were being dismissed nor did they suggest any had not been doing their job prop Had that beet been the reason a different procedure would have been followed. The reason for the retirements was either be they had reached the required age or to facilitate improvements in Government organorganisation and did not criticise the way they had performed their duties previously...

LikewI find no evidence in this case that the PSC had buckled under pressure to the extentxtent that the decision it made on 3rd November, 1998 was not its decision. It had rightly raised queries but without any firm commitment that those were its final stand on the matter before it. Also, the fact that the Interview Panel appointed by the PSC at its Meeting on 3rd November, 1998 had for some unknown reason been unable to conduct interviews as expected is not fatal to the appointment of the new Secretaries to Ministries. In cross - examination by Mr. Nori, the Chairman, Mr. Tabusasi said he went to see the Prime Minister and his impression of the Prime Minister’s position was that the list of candidates submitted for appointment was in order. His response to re - examination by the Attorney - General was that he was not aware that interviews had in fact been conducted and some of the members of the interviewing panel were Messrs Mwanesalua, Tatapu and Tagana who in fact were members of the Panel appointed by the PSC on 4/12/98. I do not think that the PSC decision in appointing the Second Respondents and his colleagues on 9th December, 1998 can be attacked on the basis that that decision was not that of the PSC. The need for the PSC appointed Interview Panel was deliberately waived by the PSC before it made its decision.

The other matter raised by Mr. Nori is the effect of the PSC Regulations 1998 whice into operation on 2 2nd November, 1998 a day before the PSC terminated the employment of the Applicant and other Permanent Secretaries. He has argued that the whole exercise should have been done afresh under these new Regulations. The effect of this argument is that everything done under the PSC Regulations 1979 would have had no legal basis. Whilst this argument may be technically sound, it does not remove the fact that the PSC does not derive its jurisdiction from the PSC Regulations of 1979 or 1998. Its jurisdiction for the purpose at hand is derived from section 116 as read with section 135 of the Constitution. Also, I do not think any injustice has been caused in this case for Part IX of the PSC Regulations 1998 is the same as Part IX of the PSC Regulations 1979. The only difference would have been some delay caused by repeating the exercise afresh apart from the practical effect that it might have had on all the parties that would have been affected by that exercise. Mr Nori has further pointed out that in terms of redundancy exercise, the Permanent Secretaries should not have been terminated ahead of persons of lower ranks. This is now a non - issue as there is no evidence of redundancy in this case. The last matter raised by Mr Nori is the argument that the second Respondents and his other colleagues are not Permanent Secretaries because they were not appointed by the PSC under section 128 of the Constitution. Mr Nori has gone on to say that they are merely supervising officers as the office of a Permanent Secretary has not been amended by deletion under section 40 of the Constitution. I agree with Mr Nori to the extent that the office of a Permanent Secretary still exists in law under section 40 of the Constitution. In my view, a supervising officer under section 40 of the Constitution can only be a temporary measure and therefore the statutory powers of a Permanent Secretary under any Act of Parliament or any subsidiary legislation made there under cannot be exercised by a supervising. officer. The designation under section 40 as read with section 128 of the Constitution is by office. It is a long established post in the Public Service. A supervising officer can be any suitable public officer by some senior rank in the Public Service appointed under section 116 of the Constitution. The fact is that no Permanent Secretaries have been appointed under section 128 of the Constitution. It is also a fact that the Applicant and other Permanent Secretaries were terminated (though disputed) by the PSC on 3rd November 1998. The act of termination was simply that the PSC agreed to terminate their employment by giving notice of termination or salary in lieu of notice. This being the case, the posts of Permanent Secretaries must be taken to be vacant unless proved otherwise. This is an important point. The PSC can only make appointment to a public office under section 116 of the Constitution. Section 144(1) of the Constitution defines “public office” as meaning an office of emolument in the public service. Obviously, as a result of contracts signed by the Second Respondents and his colleagues with the Government, they must have been receiving personal emoluments in the public service and are doing so now. The post they hold as Secretary must necessarily be a public office. General Orders do say that an office included under the personal emoluments sub - head of the Estimates is an established office or post. I think it is therefore a foregone conclusion that the office of Secretary is an established public office in the public service on the premise that their personal emoluments must have been duly budgeted for in the Estimates. They are however not Permanent Secretaries by office. However, their terms and conditions of service are similar to those previously enjoyed by former Permanent Secretaries. Significantly, their duties are similar to, if not the same, with the duties of Permanent Secretaries. Why they were not appointed as Permanent Secretaries in the first place is a mystery. What is the fear of appointing them Permanent Secretaries under section 128 of the Constitution? The term “Permanent Secretary” per se would not in any way increase the cost of running the public service. It is just a designation on paper. It is the persons who are appointed to that office and their terms and conditions are a cost to the Government. The rationale for the use of the term “Secretary” without the prefix “Permanent” is to be found in paragraph 4.2 of the Report. It says that the word “Permanent” be dropped to reflect that the post of Secretary is to be a contract position so that the contract can be terminated by the PSC based upon work performance. That justification assumes that the holders of the post of Permanent Secretary cannot be easily terminated by the PSC. This is of course not the case at all. The holders of the post of Permanent Secretary can be terminated by the PSC on the ground of misconduct, inefficiency or for reasons set out in section 8 of the Pensions Act or for the same reasons set out in Part IX of the PSC Regulations 1998. In fact, Permanent Secretaries were contracted for a fixed term in 1990 as demonstrated by the facts of Buto and Others -v- The Attorney General already referred to above. This is a precedent in this country. The position taken in paragraph 4.2 of the Report above is in my view a mistake. It must be corrected as soon as possible. In my view, the quicker the Secretaries are appointed under section 128 of the Constitution, the better it is for the Government and the public service. There would seem to be no way out of this odd situation. At this moment, it is doubtful that the Second Respondent and his colleagues can exercise the statutory powers vested in a Permanent Secretary appointed under section 40 of the Constitution.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> In exercising mcretion, I would answer the questions raised for determination in the Amended Summonsmmons as follows: -

Question 1, the answer is yes.

Question 2, the answer is yes.

Question 3, the answer is yes.

Question 4 need not be answered in view of the above answers in the affirmative.

Question 5 is ambiguous but if it means that if the answers to questions 1 and 2 in Question 4 is in the affirmative, then the answer is yes.

Question 6 need not be answered in view of the answer in the affirmative in Question 5 above.

Question 7 need not be answered as the question of redundancy is not contested in this case.

Question 8 need not be answered in view of the answer in Question 7.

Questions 9 and 10 need not be answered.

Question 11, the answer is no.

Question 12, the answer is no.

Question 13 need not be answered.

Question 14, the answer is yes.

Question 15 need not be answered.

In the result, the declarations ght in paragraph 16(a) and (b) are refused. Although I have have answered Question 11 in the negative, it does not necessarily follow that I should grant the declaration sought in paragraph 16(c) in view of my ruling that the Applicant and other Permanent Secretaries have been validly terminated by the PSC and have ceased to be Permanent Secretaries. That being the case, I do not think they have standing to question the validity of duties of the Second Respondent and his colleagues performed under their individual contracts with the Government. They do not possess any legal rights to be vindicated by this Court. I refuse that declaration sought in paragraph 16(c).

<

I further refuse the order soughtaragraph 16(d) in view of my ruling that the Applicant and and other Permanent Secretaries are no longer holders of the office of Permanent Secretary. They obviously do not have standing to question the exercise of statutory duties of the Second Respondents and his colleagues. The position therefore is that the Applicant and other Permanent Secretaries were lawfully terminated by the PSC and therefore are no longer Permanent Secretaries whilst the Second Respondent and his colleagues were lawfully appointed as Secretaries but they are not Permanent Secretaries by office appointed under section 128 of Constitution. Obviously, the First and Third Respondents are now aware of the urgent need to rectify the appointment of the Second Respondent and his colleagues as soon as possible under section 128 of the Constitution. I also refuse the order sought in paragraph 16(e) as it is no longer necessary to consider it in view of my ruling in paragraph 16(a) and (b) above.

Parties to meet their own costs.

Dated this 30th day of April 1999

At the High Court

Honiara

Frank O Kabui

Judge