Beia v Public Service [2007] SBHC 74; HCSI-CC 406 of 2004 (8 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 406 of 2004

KOTEMA BEIA AND DAVID BALE

V.

PUBLIC SERVICE

Date of Hearing: 23rd May 2007
Date of Judgement: 8th August 2007

Steven Toito’ona for the Applicants
No appearance by the Attorney-General on behalf of the Public Service.

Palmer CJ.: The question for determination raised in the Amended Originating Summons amongst others, is whether a parliamentary enactment or policy paper could be repealed by the Permanent Secretary to the Public Service by way of a Public Service Circular Memorandum.

That question arose as a consequence of a National Parliament Paper No. 34/92 issued from the Office of the Prime Minister in December 1992 in a new policy drawn for the re-structure of the Public Service. That policy paper recommended amongst others that for public service officers, with meritorious services and excellent personal conduct, who had completed 10 years of unbroken and unmarred service with the Government, should be awarded a lump sum payment equal to the value of three years pay[1], which was to be non-taxable.

This policy document was translated into the General Orders by amendment GO F2901 and provided as follows:

"Any officer/employee who is of excellent personal conduct and has served the Government for an unbroken and unmarred period of 10 years will be eligible to a "once in a life time" payment which is equal to the value of 3 years net salary."

It was made effective from 26 February 1997.

On 22nd November 2001, GO F 2901 was repealed and replaced with a new GO F2901 ("the new GO F2901") as follows:

"Effective from 1st of January 2001 an Officer Employee who has retired, resigned, made redundant or died and has served the Government for an unbroken service of 10 years will be eligible to receive a once in a life time payment of $5,000.00 plus 10 pay periods basic salary . This award is non-taxable."

In 1999 a number of Public Officers including the first Applicant Kotema Beia were made redundant by the Government. They seem to be saying that they are entitled to be paid in accordance with GO F2901 as amended in 1997. Mr. Beia however comes to court to say that the subsequent amendment in 2001 was invalid.

Mr. Toito’ona relies on the case of Laker Airways Ltd. v. Department of Trade [1976] EWCA Civ 10; [1977] QB 643 ("the Laker’s Case"). That case involved the issue of a policy guidance in the form of a Command Paper by which a 10 year licence had been granted to the plaintiffs beginning on 1st January 1973. In July 1975 the Secretary of State under a new administration reversed the previous policy. The plaintiffs brought an action quia timet against the Department of Trade for declarations that paragraphs 7 and 8 of the guidance were ultra vires and that the department was not entitled to cancel the designation. The court found in favour of the plaintiff essentially on the grounds that paragraphs 7 and 8 of the guidance were inconsistent with the statutory objectives of the Act.

Mr. Toito’ona argues that the Permanent Secretary for the Public Service ("PS Public Service") had acted outside of his powers when he repealed GO F 2901 in 2001. He referred to GO A115 which provided that in the event of conflict between the law and the General Orders that the law should prevail. In this case he argues that what had been approved by Parliament in 1992 as the Government White Paper cannot be changed administratively by a mere direction by the PS Public Service. By repealing GO F2901 in 2001, he was acting beyond his powers.

Apart from the submission regarding parliamentary approval of the Government White Paper, Mr. Toito’ona however has not pointed to any legislation in which the provisions of GO F2901 were enshrined or encouched. The provisions of GO F2901 therefore cannot be elevated to the status of enacted law such that it cannot be amended in the usual way under GO A102, which provides as follows:

"...The authority to interpret and administer General Orders, including the power to amend, repeal or waive any order either in general or in any particular case is vested with the Permanent Secretary for the Public Service....."

I am unable to find therefore that GO F2901 could not be amended by the PS/Public Service in the normal way.

In the Lakers Case, the Court of Appeal noted that whilst the Secretary of State had authority to reverse the previous policy of the previous administration he had acted beyond his powers in formulating new policy which were inconsistent with the statutory objectives of the legislation. In this case, the decision to make an award for outstanding personal achievement was purely a decision based on the policy of the Government administration in 1992. When the Solomon Islands Alliance for Change Government ("SIAC") came into power it carried out their Public Service Structural Reform Program in 1998 which involved a mass redundancy exercise of public officers and employees. At the same time it proceeded to have GO F2901 repealed and replaced with the new GO F2901. This new GO F2901 however was made effective only from 1st January 2001. The original GO F2901 therefore was in force from the period of 26th February 1997 to 1st January 2001. All public officers who have completed ten years service for the Government in that period of four years (26-02-97 to 01-01-01) would have been entitled it seems to be considered for this meritorious award. The fact many may have been entitled however did not guarantee they would receive this award for the pre-condition imposed was that such person must be of excellent personal conduct. The amendment is in fact styled "Outstanding Personal Achievement". The question which has not been answered in this case for no information has been provided is, who makes the crucial decision as to who is entitled to such an award. Is it the PS/Public Service, or is it some other body or committee, and what guidelines are there to be considered? How many officers from the Public Service were ever given this award is not known but it appears that some public officers may have received payment under this provision. If so, how they were nominated and who approved the award for them is not known?

The way GO F2901 had been drafted did not restrict the award to only certain public officers who had served ten years and were either been retired or made redundant etc. It was an open award right across the board it seems to all public officers. This also meant that the second applicant, David Bale who I understand had completed ten years service in Government would have been entitled to be considered as well provided he had been nominated or recommended for the award for excellent personal conduct.

I am therefore able to answer the questions referred to this court for its consideration as follows.

In relation to declaration 1 of the Amended Originating Summons, whether a parliamentary enactment or policy paper could be repealed by the Permanent Secretary to the Public Service by way of a Public Service Circular Memorandum, the declaration sought is confusing in itself because it refers to a parliamentary enactment without identifying what that enactment was. What was the law that contained this award?

A policy paper on the other hand often changes with change of Government. It is not surprising therefore that the policy decision on this award was repealed by a new Government in 2001. The answer to question 1 therefore is twofold. If the parliamentary enactment referred to was statute law that had been enacted, then the PS/Public Service would not have power to amend that law without Parliament’s approval. GO A115 makes clear that in the event of conflict between the law and General Orders the law shall prevail. No enacted law however has been referred to which contained the provisions of GO A115, so that question is irrelevant.

If it refers to a policy decision, that is a matter for the Government of the day to be determined. The Government of the day makes policy and the PS/Public Service implements it. The issue in this case is not whether the PS/Public Service was repealing any policy paper so much as repealing a provision of the General Orders in accordance with the policy of the new Government in 2001. It is not necessary therefore to answer the question whether the PS/Public Service has power to repeal a policy paper of the Government for that is not what has happened here. What he was doing rather was to amend the General Orders in accordance with the change of Government policy of the day. This he clearly had power to do.

As to declaration 2 of the Originating Summons, the declaration sought must be denied. I find nothing wrong about the amendment effected by the PS/Public Service under the PS Circular Memorandum No. 21/2001. He clearly has power under GO A102 to repeal any provision of the General Orders.

As to declarations 3 and 4, these also cannot be granted for the reason that even if the applicants in this case may have completed an unbroken and unmarred period of 10 years the award is only given to those of excellent personal conduct. There is nothing to suggest that the two applicants in this case had been recommended to receive the award for excellent personal conduct and approved.

The Court.

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^[1] 36 months x net salary.