Apisai v Simon [2002] VUCA 42; CA 17-02 (1 November 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL APPEAL JURISDICTION
Civil Appeal Case No.17 of 2002

IN THE MATTER OF:

An appeal from the Supreme Court of the Republic of Vanuatu
BETWEEN

MAEL APISAI

Appellant
AND

HOLI SIMON

First Respondent
AND

THE POLICE SERVICE COMMISSION

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver A. Saksak

Counsels: Mr. Hillary Toa for the Appellant
Mr. Saling Stephens for the First Respondent
Mr. Michael Edwards for the Second Respondent

Hearing date: 28th October 2002
Judgment date: 1^st November 2002

JUDGMENT

This is an appeal from a decision of Justice Coventry delivered on the 8^th day of August 2002 in proceedings issued by the First Respondent Holi Simon relating to the appointment of the Second Respondent Mael Apisai as the new Commissioner of Police.

The specific orders made by the Judge as they are relative to the appeal were

“1. A Writ of Certiorari will issue to remove into this court and quash the recommendation of the Police Service Commission to His Excellency the President and the appointment by His Excellency the President dated 19^th July 2002 of Mael Apisai as Commissioner of Police.

2. A Writ of Mandamus will issue directing the Police Service Commission to recommence from advertisement the procedure to select a person to recommend to His Excellency the President as Commissioner of Police. A recommendation must be made as quickly as reasonably possible.
   
3. A Writ of Mandamus requiring the Police Service Commission to meet today 8^th August 2002 to consider the appointment of an Acting Commissioner pending the reconsideration set out in paragraph 2.”
   

The starting point in considering this appeal is Section 10 (1) of the Police Act [CAP. 105] (the Act) which provides:-

“10 (1) The Commissioner of Police shall be appointed by the President acting on the advice of the Commission, for such period as the Commission shall advise.”

There is no factual dispute about the chronology of events.

As required under Section 10 the Police Service Commission (the Commission) began a process so that it could provide advice to His Excellency the President with regard to the appointment of a Commissioner of Police.

Advertisements were placed in the media and twelve persons applied. The Commission has an unfettered discretion and it alone decides whether there will be interviewing or whether they will make assessments in some other way.

The Commission decided to appoint an interview panel. This was not required under Section 10 of the Act but Nadine Alatoa (who was a member of the Commission) said in an Affidavit that this procedure was adopted as it was similar to that which is used by the Public Service Commission. She said the intention was for the interview panel to conduct the interviews of the five applicants who had been short listed by the Commission. The law does not require this to be done but the Commission was able to choose this method for this particular case.

An interview panel consisted of Jenny Ligo, Bill Willie, Julian Rovo and Marcel Sam. This group appears to have styled itself as “The Police Commission Recruitment Panel” but there appears to be no justification for that. They were nothing more nor less than an interview panel. They had forwarded to them the names of the five applicants who had been short listed by the Commission.

Having been given the five names the chairman of the interview committee, Jenny Ligo, asked for the names of all the applicants and this was provided without opposition. Again nothing appears to have been said to the interview panel about their proper function. It went through the list of all twelve names and it determined (although it is not clear where it was within its power to do so) that in its view eight of the applicants including the present appellant were unsuitable because they failed to meet the criteria which had been laid down in connection with this office. The interview panel most surprisingly proceeded to do their own pre-selection. They came up with four names of applicants they considered to be in conformity with the criteria and therefore eligible for appointment. Only one person who is neither the Appellant nor the First Respondent was included on both lists.

The interview panel then proceeded to interview the four people that they had pre selected. Eventually they reported to the Commission their assessment of all 12 candidates and their view that the first respondent should be appointed. They rated the other three people whom they had interviewed and contended that the Appellant and the other seven they had excluded should not be considered for the position.

The Commission received this report. It was not available to the primary Judge but a copy is before us. We are not told specifically as to the reaction and attitude of the Commission to the apparent attempt to highjack the recommendation process by the interview panel. At a meeting on the 16^th and 17^th of July having received the report from the interviewing panel, the Commission rejected the panel’s recommendation and resolved instead to recommend to the President that he appoint the present Appellant as Police Commissioner.

It is common ground that Mr. Apisai was not personally interviewed by the Commission and, of course, had not been seen by the interview panel.

There was a period with some tooing and frowing before the President eventually responded to the advice provided to him by the Commission in terms of the statutory scheme but none of that is relevant to the substance of the issue which is now before the Court.

On the 24^th July 2002 the Appellant was sworn in by the President at 9 a.m. There was clearly a difficult and unhappy situation thereafter. Eventually at 3.25 a.m. on 4^th August 2002 Mr. Apisai was arrested at his home in Beverly Hills by six police officers. There are other proceedings which are still to be resolved relating to acts and omissions of various people who were involved in the incident.

In the Supreme Court in dealing with the Judicial Review the Judge noted that although there have been a number of grounds urged in support only two required consideration.

“1. Was it unreasonable to make a recommendation without interviewing the person recommended to the President.

2. Did the process actually adopted by the Commission fail to meet the legitimate expectations of candidates and was it unfair.”

On the first limb Justice Coventry concluded:-

“Was it reasonable to make recommendation without interviewing the person to be recommended? I find it was not reasonable to do so.

The Commissioner of Police is the highest post in the law enforcement body of the country. There is a Vanuatu Mobile Force which is part of the police. There is no “army”. The Police Force also has a Maritime Wing, there is no “navy”, and also includes, amongst others, the fire fighting and emergency services and prison service.

When considering candidates for recommendation to such a post the body concerned would want to know his or her ideas about policy for the force, ways of improving its operation, meeting the public’s concerns, questions of morale and discipline etc. whilst an application form might cover some of these issues any selection body would want to question a short-listed candidate on them in person. (I note the copy of the application of the second respondent does not cover any of these topics).

In any event one would expect the selecting body to wish to see the candidate in person. Further, if that is not done it can raise the impression in the minds of others that members of the selecting body already knew him well enough not to bother with an interview.

The Police Service Commission wanted “to follow the procedures set by the Public Service Commission for interviewing applicants”. Given the lack of any set procedures that was a reasonable decision.

I note that in the Public Service Staff Manual at Chapter 3 paragraph 2.4 b the methods to be used are set out, they include “interviewing the applicants (this method must be one of the methods used in the case of Director-General and Director level appointment)”.

It cannot be said the post of Commissioner is equivalent to lower than that of Director-General. It is not a question of appointing a low or middle ranking official.

For these reasons I find it was unreasonable for the Commission to recommend the appointment of Mael Apisai as Commissioner without first interviewing him.”

There is no argument that the section which requires and empowers the Commission to make a recommendation to the President does not set out any particular approach or procedure and interviewing is not essential. We are advised that there are no other rules or regulations which define or control the unfettered discretion which is contained in Section 10.

This is an exercise of a discretionary statutory power and the law has long been that every exercise of discretion granted under a statutory power must among other things, be reasonable. This means that it is a rational act and that it is a decision which was properly within the province of the body that Parliament had entrusted with the discretionary power. The trial Judge reached the view that what occurred was not reasonable because:

1. The Commission had been concerned to follow the process which was used by the Public Service Commission;
   
2. That it wanted possible candidates to be interviewed so that they could more vigorously and properly be assessed and compared;
   

100. That the appointment of a person who had not been interviewed by the Interviewing Panel or the Commission itself was irrational. Besides, the appointment was such an important one that it was beyond comprehension that a recommendation to the President about it would be made without personal interview of some sort.
     

It does appear that the procedural aspects of the process went seriously awry at the time that the Commission sent to the Interviewing Panel all the names of applicants. When the request was made for information on the other applicants it should have been refused or the Interviewing Panel certainly should have been told in no uncertain terms that the Commission had already determined who was to be on the short-list and it merely wanted the Interviewing Panel to provide their input as to the relative strengths and weaknesses of those 5 persons.

The matter is further complicated when the Interviewing Panel sent back its report which only covered one of the people who it was asked to look at. They had rated him along with three others whom it was not asked to look at at all. It had ignored altogether four other people who the Commission had wanted them to be interested in.

It is too late to speculate as to how this mess occurred and there is certainly nothing to be gained by laying blame at the feet of anyone, but it was thoroughly unsatisfactory and has directly created the problems which have followed.

Although we are not necessarily persuaded by the entire reasoning of the trial judge, we are of the view that:

- The Commission having determined that the unfettered exercise of discretion under Section 10 of Police Act should include an interviewing process after they had made a preliminary screening;
- Unfortunately, what then occurred was a usurpation by the interviewing panel of far more extensive powers;
- as a result, the interviewing process which was going to be in conformity with the approach of the Public Service Commission, was derailed;
- the assessment the Commission required of the candidates it had screened took place in only one instant;
- having then been confronted by this mess which the Commission had contributed to in part, by providing inappropriate and unnecessary additional information to the interviewing panel, the Commission without any explanation being apparent abandoned the process which they had earlier determined to be appropriate;
- even where there is an unfettered statutory power of recommendation as existed here, that power must be validly, sensibly, and consistently exercised with formal integrity;
- we are forced to conclude that in the way things developed, the decision making which led to the recommendation being made to the President, does not have about it the essential core which must apply in circumstance such as this.

Accordingly we are of the view that for that reason the recommendation made was invalid. That recommendation is the foundation for the appointment by the President of a Commissioner of Police. In our view the judge was correct to conclude that an order needed to be made quashing the recommendation of the Police Service Commission to His Excellency. It necessarily follows that no valid appointment could be made by the President.

The trial judge was also satisfied of a failure to meet the legitimate expectation of Mr. Simon and was unfair. The judge seems to have taken the view that having advertised the post and received 12 applications, the candidates had legitimate expectations about the full process. We are unable to agree with that conclusion.

Holi Simon applied for the position of Police Commissioner. The only legitimate expectation which he could reasonably have was that his application would be properly and seriously considered by the Commission. There is no evidence to suggest that this did not occur. In our view it was open to the Commission to determine that there should, on the papers, be an initial screening. There could not be a legitimate expectation on the part of any candidate that such a normal process would not occur.

Mr. Simon did not meet the cut off point to get on the list of five.

There could be an argument that those who did get on the list could have a legitimate expectation of having an interview. Because of the disastrous way in which things developed, as it happened Mr. Simon did in fact get an interview. Even accepting the fact that it transpired that having been rated the top of the candidates who were interviewed by the interview panel, there could be no legitimate expectation that his name would necessarily be recommended for appointment, following the Commission’s final consideration.

We reject entirely Mr. Stephens Saling’s arguments that there was a delegation of the power to recommend to the President from the Commission to the interviewing panel. That is wholly inconsistent with the evidence and various documents. The legitimate expectations of a candidate for a position is necessarily restricted to proper issues of process and does not include the outcome. There was no breach in any material way of Holi Simon’s legitimate expectations. We conclude that the judge was in error in reaching the view that relief could have been granted on that basis as well.

We are mindful of the fact that where a Court intervenes by way of judicial review it should do no more in the case than is essential to ensure there is a fair and lawful exercise of the statutory power. The Court’s role is limited to the upholding of underlying and fundamental principle.

Accordingly we find that the relief properly available was the first order made by the primary judge on the 8^th August 2002 subject to the consequential addition “that the Police Service Commission proceed as soon as possible to make a recommendation to His Excellency pursuant to Section 10 of the Police Act for the appointment of a commissioner of police.”

We are of the view that Order No. 2 was in some respects more far reaching than necessary or appropriate.

Order No. 3 is now spent in its operation and requires no further consideration by us.

In the final analysis therefore the appeal is allowed only to the extent that there is some variation and amendment of the orders made. The grant of relief is restricted to the grounds we have mentioned. In all the circumstances we are not satisfied that any orders as to costs should be made in respect of the hearings in the Supreme Court or in the Court of Appeal.

Dated at Port Vila, this 1st day of November 2002.

BY THE COURT
Hon. Vincent Lunabek CJ
Hon. Justice B. Robertson
Hon. Justice John v. Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak