Application by Sir Makena Geno

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J Kandakasi, Lenalia, Manuh & Collier, J
• Judgment Date: 31 August 2016
• Citation: (2016) SC1581
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1581

Full : SCOS No 6 of 2014; In the matter of the Constitution section 223(2)(B) and section 10(2)(B)(Ii), (4) and (5), of the Organic Law on the guarantee of the rights and independence of constitutional office-holders and section 4 (2) and (3) of the Constitutional Office-Holders Retirement Benefits Act 1986; Application by Sir Makena Geno, KBE (2016) SC1581

Supreme Court: Kirriwom, J Kandakasi, Lenalia, Manuh & Collier, J

Judgment Delivered: 31 August 2016

SC1581

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCOS No. 6 OF 2014

IN THE MATTER OF THE CONSTITUTION SECTION 223(2)(b)

AND

SECTION 10 (2)(b)(ii), (4) and (5), OF THE ORGANIC LAW ON THE GUARANTEE OF THE RIGHTS AND INDEPENDENCE OF CONSTITUTIONAL OFFICE-HOLDERS

AND

SECTION 4 (2) and (3) OF THE CONSTITUTIONAL OFFICE-HOLDERS RETIREMENT BENEFITS ACT 1986

APPLICATION BY SIR MAKENA GENO, KBE

Waigani: Kirriwom, J Kandakasi, Lenalia, Manuh &Collier, J

2016: 26 April & 31 August

CONSTITUTIONAL LAW - Interpretation of - Act of Parliament setting limits to retirement benefits to COH - Inconsistency between Act of Parliament and Constitution, section 223(2)(b) - Only Organic Law can provide conditions on retirement benefits of COH - No ordinary Act of Parliament can limit conditions of retirement of COH provided by Constitutional laws - Act is unconstitutional and invalid.

Cases cited:

Asiki v Zurenuoc, Provincial Administrator [2005] SC797)

Statutes

Chris Haiveta v Paias Wingti (No. 3) [1994] PNGLR 192

Constitutional Office-Holders Retirement Benefits Act 1986

Constitution of Papua New Guinea

In re Application of Makena Geno [2015] SC1455

In the Matter of Section 18(1) of the Constitution and In the Matter of Application by Anderson Agiru [2001] SC671

Mathias v Protect Security & Communications Ltd [2013] SC1300

Organic Law on The Guarantee of The Rights and Independence of Constitutional Office -Holders

PLAR No. 1 of 1980 [1980] PNGLR 326,

Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] SC1011

SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151,

SCR No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor [1978] PNGLR 345

SCR No. 2 of 1992, Special reference by the Public Prosecutor [1992] PNGLR 336,

Counsel:

T M Tamuta, for the Applicant, Sir Makena Geno KBE

Faith Barton-Keene, for the Attorney General

31 August, 2016

1. BY THE COURT: In this application the Supreme Court is asked to consider a Constitutional issue of importance in respect of the rights and entitlements of Constitutional Office Holders (COHs) in Papua New Guinea. Pursuant to section 18 (1) of the Constitution the applicant, Sir Makena Geno, seeks declaratory relief from the Court in respect of the following questions:

(a) Whether 223(2)(b) of the Constitution, provides guarantees that at the end of their periods in office, Constitutional Office Holders are entitled to adequate and suitable pensions or other retirement benefits, or both, and that should there be any conditions – such conditions are to be laid down by an Organic Law.

(b) Whether the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-Holders (OLGRI) does not lay down any reasonable conditions particularly age limitations, on adequate and suitable pensions or other retirement benefits for Constitutional Office Holders, after their tenure of office.

(c) Whether 10(2)(b)(ii), (4) and (5) of the Organic Law on the Guarantees to Constitutional Office-Holders, provides guarantees to Constitutional Office-Holders (COH’s) at the end of their periods of office, life-time pension benefits and or payments, irrespective of age limitations.

(d) Whether Section 4(2) and (3) of the Constitutional Office Holders Benefit Act 1986 is unconstitutional, in that it is inconsistent with section 223(2)(b) of the Constitution.

(e) Whether section 4(2) and (3) of the Constitutional Office-Holders Benefits Act 1986, is unconstitutional in that it is inconsistent with section 10(2)(b)(ii), (4) and (5) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-Holders.

2. In re Application of Makena Geno [2015] SC1455 the Supreme Court ruled that Sir Makena had standing to bring the current application in the Court.

3. The Attorney-General has intervened in this proceeding, and has assumed the role of contradictor to the application.

Background

4. Helpfully the parties agree on salient background facts. These facts are substantially set out in the application and are as follows:

· Sir Makena Geno, KBE, commenced employment on 9 January 1970 in the Papua New Guinea Public Service.

· He commenced in the office of Auditor-General of Papua New Guinea on 18 January 1983 aged 32 years old. He continued in that role for 15 years.

· On 18 January 1998 Sir Makena’s contract of employment as the Auditor-General, and as a Public Servant, ended.

· Following the expiry of Sir Makena’s contract of employment, the Office of Auditor-General commenced pension payments sometime in 1998. Sir Makena received those payments until 2010.

· Sir Makena’s pension payments ceased after the Office of Auditor-General received legal advice that because Sir Makena was retrenched at the age of 49 years and 7 months old, he was only entitled to receive pension for 12 years, in accordance with the Constitutional Office-holders Retirement Benefits Act 1986 (“the Act”).

5. It is common ground that, if the Act is valid, it applies to Sir Makena. It is also common ground that had Sir Makena remained in the Public Service until the age of 50 years, he would have been entitled to a life time pension pursuant to section 4 (2) and (3) of the Act.

It is also a further common ground that had this disputed or controversial legislation not been in force at the time of the expiry of his term, Section 10 of the Organic Law would have come into play and if Sir Makena was not re-employed in another Public Service position of equal rank and salary, and The Public Service Commission decided that he was suitable for retirement on pension, he would have been accorded pension for the duration of his lifetime irrespective of his age.

Relevant legislation

6. Determination of this application depends on the proper interpretation of section 223 (2)(b) of the Constitution and section 10 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders (“OLGRI”).

7. Relevantly section 223 provides:

(1) Subject to this Constitution, Organic Laws shall make provisions for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders.

(2) In particular, Organic Laws shall make provisions guaranteeing the rights and independence of constitutional officer-holders by, amongst other things –

a. Specifying the grounds on which, and the procedures by which, they may be dismissed or removed from office, but only by, or in accordance with the recommendation of an independent and impartial tribunal; and

b. Providing that at the end of their periods of office they are entitled, unless they have be dismissed from office, to suitable further employment by a government body, or to adequate and suitable pensions or other retirement benefits, or both, subject to such reasonable requirements and conditions (if any) as are laid down by an Organic Law.

(3) A constitutional office-holder may not be suspended, dismissed or removed from office during his term of office except in accordance with a Constitutional Law.

…

…

8. Section 10 of the OLGRI provides:

RIGHTS ON TERMINATION OF EMPLOYMENT.

(1) This section does not apply to–

(a) a constitutional office-holder who has been removed from office under this Law or any other Organic Law or the Constitution; or

(b) a constitutional office-holder who is a non-citizen; or

(c) a first appointee to the constitutional office who was immediately prior to his appointment an officer of the pre-Independence Public Service.

(2) Where an Act of the Parliament does not provide for an adequate and suitable pension or other retirement benefit for a constitutional office-holder, the Public Services Commission shall, where the term of office of the constitutional office-holder has expired and he has not been re-appointed to the same or an equivalent position, offer to him–

(a) where he was, immediately before his appointment to the constitutional office, an officer of the National Public Service, re-employment in an office in the National Public Service at least equivalent in status and type of work to the office he occupied prior to his appointment and, notwithstanding the salary payable to any other person occupying that office, a salary equivalent to that which he was receiving as a constitutional office-holder immediately before the expiration of his term of office; or

(b) where he was,...