Kirisome v Attorney-General [2002] WSSC 3 (25 February 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

FETALAIGA KIRISOME
of Alafua, Deputy Commissioner of Police,
MAX WENDT
of Vaivase-tai, Police Superintendent,
ANNE LAUMEA
of Avele, Police Inspector,
PEIKA MOALELE
of Lalovaea, Police Inspector.
Applicants

AND

THE ATTORNEY GENERAL
for and on behalf of the MINISTER OF POLICE.
First Respondent

AND

THE COMMISSIONER OF POLICE
Second Respondent

Counsel: PA Fepuleai for applicants
The Attorney General BP Heather-Latu and D Potoi for first and second respondents

Hearing: 31 January 2002
Judgment: 25 February 2002

JUDGMENT OF SAPOLU CJ

Preliminary

It should be mentioned as a preliminary matter that after the hearing of the application for judicial review and while judgment was pending, I called counsel into chambers for an amendment to be made to the application in order to spell out the remedy sought by the applicants because of the submission made on behalf of both respondents that the application is defective in that it discloses no remedy. The Attorney-General who appeared for the respondents at the hearing could not be present as she was overseas but counsel appearing on her behalf had no objection to the application for judicial review being amended.

During this meeting in chambers, the Registrar handed to the Court an application by the applicant Anne Laumea, police inspector, for change of counsel and a motion for a non-suit. Mr Fepuleai who has been acting for all the applicants consented to the application for change of counsel and so were counsel appearing on behalf of the respondents. I will therefore not deal with the applicant Annie Laumea in this judgment. I will also not comment on the motion for a non-suit filed on her behalf in this judgment. I will deal with that motion in separate proceedings.

For convenience I will now set out the statutory and constitutional provisions that were referred to by counsel for the applicants in the application for judicial review and in his written submissions.

Statutory and constitutional provisions

Counsel for the applicants referred first to s.22 of the Police Service Act 1977 which provides the age of retirement for male and for female members of the police service.
Section 22 provides:

“(1) Every member of the police service shall retire from the police service:

“(a) on attaining the age of 55 years, or after 35 years of service in the police service, in the case of a male; or

“(b) on attaining the age of 50 years in the case of a female.

“Provided that where in the opinion of the Minister the special circumstances of any case require that any member should remain in the police service after attaining the age aforesaid, he may by warrant under his hand, permit that member to remain in the police service for an additional period not exceeding 5 years.

“(2) Nothing in subsection (1) of this section shall affect the term of employment of the Commissioner serving in office at the time of the coming into force of this Act.”

Section 22(2) is not relevant to these proceedings and nothing more will be said about it. The next statutory provision referred to for the applicants is s.9 of the Act which provides for appointments for special purposes to the police service. As far as relevant, s.9 provides:

“(1) Notwithstanding the provisions of section 12, the Commissioner may, with the approval of the Minister, on such conditions as the Commissioner determines, appoint any person to the police service or promote any member of the police service to any rank below the rank of superintendent, or with any special designation, for the purpose of performing duties of a specialised nature.

“(2) Every person appointed under this section shall hold his office at the will of the Commissioner.

“(3) The Commissioner may dispense with any requirement in respect of age, sex, physical characteristics or examinations in making any appointment or promotion under this section.”

Counsel for the applicants also referred to Article 15(1) of the Constitution which provides:

“All persons are equal before the law and entitled to equal protection under the “law”.

Evidence

All the evidence in these proceedings was given in affidavit form. The principal affidavit for the applicants was filed by the applicant Fetalaiga Kirisome, deputy commissioner of police. The other applicants Max Wendt, police superintendent, and Peika Moalele, police inspector, in their affidavits agree with and support the contents of the affidavit by Kirisome.

According to Kirisome’s affidavit, he was served on 30 April 2001 with a letter dated the same day from the second respondent, the Commissioner of Police, purporting to terminate his service with the police as from 30 May 2001. The other two applicants were also served with similar letters from the second respondent purporting to terminate their services from the same date, 30 May 2001. The applicants then went and met with the first respondent, the Minister for the Police Service, and discussed with him their termination notices. Subsequently, the applicant sought an interim injunction to stop their purported termination pending the determination of the substantive issues in this case. The injunction was granted but was subsequently discharged on 14 September 2001 on a motion to discharge filed by the second respondent who was then the only respondent in these proceedings. After the injunction was discharged, amended proceedings were filed citing the Minister as first respondent and the Commissioner of Police as second respondent.

The affidavit by Kirisome continues that by letter dated 6 November 2000, the second respondent had recommended to the first respondent for retirement from the police service the applicants and six other police officers. However, there were ten other police officers who had passed the retirement age of 55 years whose names were not included in the list of those police officers who were recommended for retirement. Of those ten officers, four were in the same category as the applicants being commissioned officers – three being superintendents and one being an inspector. Of the other six officers, two held the rank of senior sergeants, one a gaoler, two were sergeants and one a chief fire officer. Of the superintendents who have passed the retirement age of 55 years, two of them have been appointed for continuation of their service under s.9 of the Act. The one inspector who has also passed the retirement age has also been appointed under s.9 for continuation of his service. Kirisome complains that he and the other applicants have been treated in a discriminatory manner. He also complains that none of those commissioned officers re-appointed under s.9 has any specialised skill to warrant an appointment for a special purpose under s.9 and some of them are in poor medical condition. He further takes the view that these appointments do not comply with the provisions of s.9.

The second complaint by Kirisome is that he has not seen any warrants signed by the first respondent for these appointments made under s.9. However, it appears to me such warrants are not required as an appointment under s.9 is to be made by the second respondent and not the first respondent even though with the latter’s approval. The third of the complaints is that unlike one of the previous Commissioners of Police whose practice was to advise by letter a police officer who was approaching the retirement age of 55 years so that such police officer may apply for an extension under s.22, the second respondent would just allow some officers to continue their services beyond the retirement age without proper extensions. There is, however, no express requirement under the Act for the Commissioner of Police to advise an officer approaching the retirement age of that fact. In any event each Commissioner is at liberty to adopt his own practice in a matter of this kind.

Each of the applicants in his affidavit gives some personal details in support of their joint application. The applicant Kirisome gives his date of birth as 4 March 1941. So he was 60 years of age on 4 March 2001 and would now be more than 61 years. He joined the police service on 11 May 1961 and would therefore be serving as a police officer for just over 40 years when his service was purportedly terminated on 30 May 2001. He is the only qualified fingerprint expert in the police service and has had numerous trainings in narcotics. Kirisome also claims that he and other senior police officers had put forward certain recommendations to the second respondent for improvements to the police service and he feels that he has been victimised with the other applicants because of those recommendations. I am not satisfied on the evidence there has been any victimisation. The applicant Wendt states in his affidavit that his date of birth was 21 April 1941 and therefore would be more than 60 years of age when his service was purportedly ended on 30 May 2001. He would now be close to 61 years. He spent most of his career with the prosecution section of the police service and is the most experienced police prosecutor in the service. The applicant Moalele states in his affidavit that his date of birth was 18 March 1944 and he joined the police service on 12 January 1970. He was therefore 57 years of age when his service was purportedly ended on 30 May 2001 and had served in the police service for about 31 years by that time. He served as police training officer for about 15 years.

Second respondent’s evidence

Only the second respondent, but not the first respondent, filed an affidavit. In that affidavit the second respondent states that on 6 November 2001 he prepared a memorandum identifying nine police officers for whom retirement was sought and submitted it to the first respondent for consideration. Even though the second respondent’s recommendation for retirement was approved by the first respondent on 24 January 2001, implementation of that decision was not carried out until 30 April 2001. Letters were sent by the second respondent on that day to the applicants inviting them to resign effective from 30 May 2001. Of the nine police officers whose retirements were recommended by the second respondent, three have since retired, two who are under the age of 60 years have been granted extensions of service until they attain the age of 60 years, and then the three applicants and Laumea who has been an applicant but has now changed counsel. Of the nine officers recommended for retirement, five were commissioned officers which included the three applicants and Laumea and another officer who willingly resigned to run successfully for parliament. The other four officers held lower ranks of sergeant and senior sergeant.

The reasons given by the second respondent in support of his recommendation to retire the applicants were essentially twofold. The applicants had passed the mandatory retirement age of 55 years with Kirisome and Wendt exceeding the age of 60 years which is the maximum for extension. The second reason is good administration. In relation to good administration, the senior ranks of the police service were “top heavy”. And there were a number of officers in that category who had passed or were near the retirement age. However, there were a number of able and energetic young officers who were uncertain of a clear career path within the service because the senior ranks were “top heavy” and there was a general reluctance amongst officers who have reached retirement age to retire. It was therefore necessary as a matter of policy for a gradual retirement of all the officers who have passed the retirement age to allow greater opportunities for promotion and advancement in the police service within existing budgetary limits. In this way promotion opportunities will be provided for able and energetic officers in the lower ranks. The second respondent also states that he believed the return of the police contingent of United Nations peacekeepers in East Timor would require reconsideration of existing staff levels with a view to providing opportunities for those officers to aspire to given their important experience as United Nations peacekeepers overseas.

To achieve these objectives without weakening the police service to an unacceptable degree and thus compromising the effectiveness and efficiency of the service, it was decided that not all the officers who have reached the retirement age of 55 years should be retired at one time. Instead groups of officers at the senior level will be retired in turn so that those officers in that category will be gradually phased out with the least disruption to the overall service. Thus the applicants are amongst the first group of officers to be retired. It is also stated that none of the applicants sought a further extension of service. The second respondent in his letter to the applicant Kirisome inviting him to retire also thanked Kirisome for his hard work and commitment to the police service despite having had a major medical operation.

The second respondent also states that Kirisome was extended for three years to 1999 when he reached retirement age of 55. After that he simply continued working in the service without a further formal extension.

Submissions

It was submitted by counsel for the applicants in his written submissions that the termination of the applicants services is discriminatory and unfair. As I understand counsel’s submissions, he is in effect saying that the applicants have been treated in a discriminatory manner on three grounds. The first is, the second respondent had recommended the retirement of the applicants to the first respondent but there are two other police superintendents and one police inspector who have all passed the age of 60 years but were not included in the list of officers recommended for retirement. The second ground is that those two police superintendents and one police inspector have had their services continued under s.9 of the Act but their appointments do not comply with the provisions of s.9 and they have less to offer to the service compared to the applicants, especially the applicants Kirisome and Wendt given their special skills and expertise. The third ground, according to the applicants, is that some of these commissioned officers whose services have been retained under s.9 of the Act are in poor health condition. Counsel for the applicants therefore submitted that the second respondent has shown inconsistency in the manner he had exercised his power in relation to the applicants when compared to other officers in the same category. Accordingly the termination of the applicants service was in violation of Article 15(1) of the Constitution which provides that all persons are equal before the law and entitled to equal protection under the law.

As his second ground of attack, counsel referred to the decision of the Privy Council in Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 at 718 where Lord Morris of Borth-y-Gest in effect said that natural justice is synonymous with fairness. Counsel then submitted that the second respondent had not acted fairly towards the applicants relying on the same factual grounds on which he submitted that the second respondent had acted in a discriminatory manner. With respect, there is a misconception here. There is no overall principle of justification based on justice or fairness. The duty to observe the principles of natural justice or to act fairly relates to providing fair procedural protection to a person in circumstances where that is the just thing to do. The concept of natural justice or procedural fairness is of course not the same as the concept of reasonableness as used in judicial review. Neither is unfairness a legal ground which is synonymous with discriminatory treatment.

Counsel for the applicants then submitted that the applicants had a legitimate expectation that they will be treated similarly to the other police officers who have reached the age of 60 years. Their special skills and expertise make it a further legitimate expectation that these matters should have been considered properly by the first and the second respondents. I will come back to the question of legitimate expectation later. It was further submitted that the applicants Kirisome and Wendt had a legitimate expectation that their services would be extended beyond 60 years because of the second respondent’s practice not to issue notices to officers approaching the retirement age so that they can apply for extensions but to allow officers to continue with their services until notices for mandatory retirement were issued to them. It is very difficult to accept this submission as there is no express requirement in the Act for the second respondent to give notice to an officer who is approaching the retirement age so that such officer may apply for an extension. In any event, retirement notices were served on the applicants giving them about one month until 30 May 2001 to effectively retire.

The Attorney-General for both respondents on the other hand, submitted that the actions of the respondents were not in any manner unlawful. She submitted that the applicant Kirisome had in effect been given an extension of five years service when he reached the retirement age of 55 years and he is now over 60 years of age. The applicant Wendt had not applied for an extension of service when he reached the retirement age of 55 years but he was allowed to continue working in the police service for more than five years and he is now over the age of 60 years. The applicant Moalele had not applied for an extension after he reached the retirement age of 55 years and has never applied for an extension of service. It was further submitted that the actions of the respondents were not discriminatory or unfair in any manner as the applicants were part of a group of nine police officers, the first police officers who were invited to cease their service. Further, the second respondent was entitled to adopt a policy of gradual retirement of officers who had reached the retirement age having regard to the need to ensure the effective and efficient operation of the police service.

Decision

It must be said that all these applicants, perhaps more especially Kirisome and Wendt, have had highly commendable and meritorious careers in the police service of Samoa. All these applicants would not have risen to their senior ranks in the police service if that were not so. Their names and service are well known to many in the community. A court case may therefore be an undeserving event at the twilight of their careers. However, as some of our most senior law enforcement officers for a number of years they are undoubtedly aware that the law must be applied and upheld with utmost objectivity.

Dealing with the cases of the applicants Kirisome and Wendt first, both have reached the retirement age of 55 years as provided under s.22 of the Act. Kirisome then applied for a three years extension of service which expired on 4 March 1996. However he was allowed to continue working for another two years. Wendt made no formal application for extension of service when he reached the retirement age of 55 years, but he was allowed to continue working for another five years. In effect, both applicants were given the maximum extension of five years under s.22. They were both over the age of 60 years when they were asked on 30 April 2001 to end their respective services by 30 May 2001. There is no provision under the Act for any further extension in their cases beyond the age of 60 years. They have reached the limit. Their respective services therefore came to an end by operation of law rather than by any termination. Neither the first respondent nor the second respondent has any power to further extend these applicants service. To do so would be to act without lawful authority.

Even though counsel for the applicants submitted that the applicants were treated in a discriminatory and unfair manner because other police officers have been retained under s.9, the fact remains these two applicants have reached the limit provided under the Act. Nothing more can be done under the Act to lawfully continue their service. The applicants counsel also submitted that the appointment of two other commissioned officers in the same category as the applicants to continue their service under s.9 does not comply with the requirements of that provision. I agree. But that means the applicants Kirisome and Wendt would also not be qualified for further appointments under s.9. As counsel for the applicant correctly pointed out, s.9 applies only to two kinds of appointment. The first is the appointment to the police service of a person from outside the service, and the second is the promotion of any member of the police service to any rank below the rank of superintendent, or with any special designation, for the purpose of performing duties of a specialised nature. Both the applicants Kirisome and Wendt because they are members of the police service and they hold the ranks of deputy commissioner of police and superintendent of police will not qualify for appointment under s.9. Thus, whether it is under s.22 or s.9, both Kirisome and Wendt cannot have their respective services extended any more.

However, it was submitted on their behalf that the inconsistency in the treatment given them and that given to two other police officers in the same category of commissioned officers was discriminatory in terms of Article 15(1) of the Constitution. Even if I were to hold this submission to be correct, it will not assist the two applicants because there is no room under the Act for further continuation of their services. The Attorney-General submitted that the retirement of the applicants is part of a gradual development of officers who have reached the retirement age. To retire all such officers at one time could affect the effective and efficient operation of the police. I think it must be clear from what I have already said that in terms of s.22, once a police officer at the rank of superintendent or higher has reached the retirement age of 55 years and has served the maximum period of extension of five years, that is the limit. He has reached the ultimate length of time of his career as a police officer. Section 9 will not apply to such police officer. His services comes to an end by operation of law. A policy of gradual retirement will not resurrect his service. In saying all that, I do not have the office of Commissioner of Police in mind as counsel mentioned in the course of these proceedings that there was a recent statutory amendment concerning that office but a copy of that amendment was not made available to the Court.

As for the submission by counsel for the applicants based on natural justice and the duty to act fairly, the careers of Kirisome and Wendt have really come to an end by operation of law. In actual fact, it was not by any purported termination of their careers by the first respondent on the recommendation of the second respondent that brought their service to an end. The careers of these two applicants would have come to an end anyway without the necessity of any decision by the first respondent because at the time these applicants were advised their careers were at an end, they had already reached the age of 60 years and had served the maximum period for extension of service.

All in all then, the application by Kirisome and Wendt is dismissed.

That brings me to the applicant Moalele. I will consider first the ground that the respondents did not observe the principles of natural justice or the duty to act fairly and then the submission that there has been a violation of Article 15(1) of the Constitution. Some preliminary comments are called for. The principal grounds or principles of judicial review are “procedural propriety”, “rationality” and “legality” as stated by Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 37. Lord Diplock mentioned a fourth possible principle of judicial review which is “proportionality”. But “proportionality” as a ground of judicial review has yet to gain general acceptance in English law. The principle of “legality” was applied by this Court in Keil v Land Board and Keil, (2001) (unreported judgment). In the present case we are concerned with the principle of “procedural propriety” given the submission for the applicants that the respondents did not comply with the requirements of natural justice or the duty to act fairly.

The principle of “procedural propriety” is concerned with fair decision-making standards. Thus in considering the application for judicial review in this case, the Court is concerned with the fairness of the procedural standards that were adopted when the decision was made by the first respondent on the recommendation of the second respondent to retire the applicant Moalele. The Court is not concerned with what that decision ought to have been. For the Court to be so concerned, may result in the Court substituting its own decision for that of the respondents. But that is not the function of the Court in proceedings for judicial review.

On the material placed before the Court, the applicant Moalele joined the police service in 1970 and he came up through the ranks to the rank of inspector which is a commissioned officer’s rank. Moalele’s date of birth was 18 March 1944. So he reached the retirement age of 55 years on 18 March 1999. He did not make an application for extension of service under s.22 and no extension was formally granted to him. But he continued working until he was asked on 30 April 2001 to retire on 30 May 2001. At that time he was 57 years of age. He would now be just over 58 years. All the applicants allege in their affidavits that a number of police officers who have reached the retirement age are still working without seeking any formal extensions of service. The applicants further allege that some of those officers have reached the age of 60 years without seeking any extension of service or being formally given any extension.

As it appears from what Lord Fraser of Tullybelton said in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401, a legitimate expectation may arise “either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.” Given that a number of police officers who have reached the retirement age have continued working, some until the age of 60 years, the applicant Moalele would have a legitimate expectation that in the present circumstances, he would be given the opportunity to comment or make submissions on any question of his possible retirement before a decision is made to bring about his retirement. The circumstances and subject matter under consideration require that procedure to have been followed. The decision may turn out to be still the same, or different, after he is given such opportunity. But the principle of “procedural propriety” which calls for fair procedural standards requires that he should have first been given such opportunity. As he was not given such an opportunity, the decision to retire him is void. It is for the respondents to decide whether Moalele is given the opportunity to make submissions on the question of his possible retirement. In the meantime, the initial decision to retire him is void.

I turn now to the allegation that Article 15(1) has been violated. The concept of equality which is covered under Article 15(1) has been expressed in various ways. But its core element may be stated as: people in similar situations should be treated similarly, and those in different situations should not be treated in the same way unless there is a reasonable and objective justification for doing so: see for instance Principles of Judicial Review (1999) p.482 by de Smith, Woolf and Jawell. Further at pp 482 – 4893 of the same text, the learned authors state:

“Unequal treatment under the Convention [Article 14 of the European Convention on Human Rights] requires ‘objective and reasonable justification’. Under this test the apparent inequality that is being challenged must, to be valid, pursue a ‘legitimate aim’ and, in addition, the means pursued to achieve the end must be proportionate”.

It is to be noted that Article 14 of the European Convention on Human Rights is similar in terms to Article 15(2) of the Samoan Constitution. The Convention does not have a provision similar to Article 15(1). The notion of equality has also been expressed as like cases should be treated alike and unlike cases should be treated differently: Matadeen v Pointu [1998] UKPC 9; [1998] 3 WLR 18. In Aiono Sia and Another v Maiava Visekota Peteru and Others (1998) (unreported judgment delivered on 31 August 1998) Young J identified three questions to be considered in determining whether the principle of equality of treatment under Article 15(1) has been violated. Two of these principles are whether there is an objective and reasonable justification for the difference in treatment, and, secondly whether there is proportionality between the means employed and the aim sought to be achieved.

There was no authority cited in this case as to how the Courts of other jurisdictions like the United States and India with constitutional provisions similar to Article 15(1) have interpreted such provisions. As I have already said, even the European Convention on Human Rights does not have a provision similar to Article 15(1). So decisions under that Convention should be treated with caution when interpreting Article 15(1).

Be that as it may, the approach I propose to take in this case is twofold. The first step is to consider whether there was a difference in the treatment of the applicant Moalele from that of other police officers in a similar situation. Secondly, is there an objective and reasonable justification for such difference in treatment. If there is none then the treatment violates Article 15(1). If there is, then the treatment does not violate Article 15(1). The onus of proving that there is an objective and reasonable justification rests on the respondents being the “government”. For the respondents to prove justification and that the difference in treatment is valid, they must establish two things: first, that the difference in treatment pursues a “legitimate aim”, and second, that the means employed to achieve that aim must be proportionate.

Now from the material placed before the Court, Moalele has been treated differently from other police officers, being commissioned officers, in a similar situation. I am further unable to conclude that the manner in which Moalele has been treated differently from other officers has an objective and reasonable justification in that it pursues a legitimate aim and there is a relationship of proportionality between the aim pursued and the means employed to achieve that aim.

The first question then is what is the legitimate aim that was pursued. It was said that the senior ranks in the police service are “top heavy” and opportunities are required for the promotion and advancement of the careers of able and energetic young officers. In that way it will promote and ensure the effective and efficient operation of the service. I accept that is a legitimate aim. However, it is the next step of whether there is proportionality between the means employed and the aim to be achieved that causes problems. To achieve the aim stated, it was said that a gradual retirement in groups of officers who have reached the retirement age was necessary. To retire all such officers at one time will compromise the stability and the effective and efficient operation of the service. But the question is why was Moalele who is 57 years of age selected in the first group of officers to be retired when there are commissioned officers, who have reached the age of 60 years or have not reached 60 years but are older than Moalele, who are still working in the service. There is also no evidence Moalele is in poor health condition whereas the applicants allege that some of the officers, commissioned and non-commissioned, who are still working and have passed the retirement age or even reach 60 years are in poor health condition. With respect, I therefore find there is no proportionality between the means employed and the legitimate aim to be achieved. Accordingly, Moalele’s application also succeeds under Article 15(1).

All in all then the application by Kirisome and Wendt is dismissed. The application by Moalele is granted. I will hear counsel on the question of costs if they wish to do so. The Registrar to be advised within 7 days, then a date will be fixed.

CHIEF JUSTICE

Solicitors:
Fepuleai & Schuster Law Office for applicants
Attorney General’s Office for first and second respondents