Francis Damem, Secretary and Attorney-General, Department of Justice and Attrorney General v Hon Mark Maipakai MP, Minister for Justice, Hon Sinai Brown MP, Minister for Public Service, Ken Kaia, Government Printer and The Independent State of Papua New Guinea (2004) N2730

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 24 November 2004
• Court: National Court
• Citation: (2004) N2730
• Year: 2004
• Judgement Number: N2730

Full Title: Francis Damem, Secretary and Attorney-General, Department of Justice and Attrorney General v Hon Mark Maipakai MP, Minister for Justice, Hon Sinai Brown MP, Minister for Public Service, Ken Kaia, Government Printer and The Independent State of Papua New Guinea (2004) N2730

National Court: Injia DCJ

Judgment Delivered: 24 November 2004

N2730

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 521 OF 2004

BETWEEN:

FRANCIS DAMEM, SECRETARY AND ATTORNEY-GENERAL

DEPARTMENT OF JUSTICE AND ATTRORNEY GENERAL

-Applicant-

AND:

HON. MARK MAIPAKAI MP

MINISTER FOR JUSTICE

-First Respondent-

AND:

HON. SINAI BROWN MP

MINISTER FOR PUBLIC SERVICE

-Second Respondent-

AND:

KEN KAIA, GOVERNMENT PRINTER

-Third Respondent-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Respondent-

Waigani : Injia, DCJ

2004 : 24th November

Judicial Review – Application for certiorari - Suspension of Departmental Head for disciplinary reasons – Procedure prescribed by Statutory and Constitutional Law – Breach of prescribed procedure by Public Services Commission and Minister for Public Service – Application granted – suspension quashed – Constitution, S.193 1D; Public Services (Management)(Criteria and Procedures for Suspension and Revocation of Departmental Heads and Provincial Administrators Regulations 2003, S.2.

Statutes – Procedure for Suspension of Departmental Heads prescribed by Constitution, Public Service Management Act and Regulations – Inconsistencies between provisions of Regulations and Act with Constitution – State to rectify inconsistencies.

Cases cited in the judgment:

Kekedo v Burns Philp (New Guinea) Ltd [1988 – 89] PNGLR 122.

R v North Yorkshire C.C; ex p.M [1989] Q.B 411

Rimbink Pato v Tom Manjin SC 622 (1999)

Simon Ketan v Lawyers Statutory Committee N 2290 (2001).

H Nii for the Applicant

L Henao with J Kawi for the Respondents

24th November 2004

INJIA, DCJ: The Applicant is the Attorney-General of Papua New Guinea. He is also the Secretary of the Department of Attorney General. He applies for judicial review of the decision of the Second Respondent (“the Minister”) made on 14th September 2004, to suspend him for disciplinary reasons, pending investigations into certain allegations of misconduct in office. He seeks an order in the nature of certiorari to bring up to this Court and quash that decision. Leave to seek review was granted on 24th September 2004. The First, Second, and Third Respondents were not heard on the leave application because the application is normally made ex parte: see O 16 r 3(3). The Fourth Respondent was heard on the leave application through representation by the Solicitor General’s office, pursuant to S.8 of the Claims By and Against the State Act 1996.

The grounds of review pleaded in the latest Amended Statement in Support dated 2nd November 2004, raise the issue of whether the Public Service Commission’s (“the Commission”) recommendation to the Minister to suspend the Applicant and the Minister’s subsequent decision to suspend the Applicant were both ultra vires their powers given by S.193 (1D) of the Constitution, s.31D of the Public Service Management Act 1995 (‘the Act”), and s.2 of the Public Service (Management) (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (“the Regulation” ).

The grounds of review are:

“A. The decision by Hon. Sinai Brown, MP, Minister for Public Service dated 14th September 2004 to suspend the Plaintiff is ultra vires and in breach of section 193 (1D) of the Constitution and in breach of section 31D of the Public services (Management) Act thus is consequently null and void. Under the stated provisions of the Constitution and the Public Services (Management) Act only the Head of State can effect the suspension of the Plaintiff.

B. The recommendation by the Public Services Commission by letter dated 13th September 2003 to the Minister for Public Service to suspend the Plaintiff is ultra vires and in breach of section 31D(b) of the Public Services (Management) Act. Section 31D(b) of the Act states that where, as a result of its investigations, the Commission is of the opinion that the Departmental Head should be suspend, it shall so recommend to the National Executive Council.”

The uncontested facts from the affidavit evidence filed and relied upon by the parties, are those set out the Applicant’s counsel in his written submission and I adopt them:-

(a) On 9th January 2001, the Applicant was appointed the Secretary for the Department of Justice and the Attorney General of Papua New Guinea. He subsequently entered into a Contract of Employment with the State on 12th April 2001 with retrospective effect from the date of his appointment. His appointment will expire on 9th January 2005.

(b) On 21st January 2004, the Hon. Mark Maipakai, MP, Minister for Justice (First Respondent) wrote to then Minister for Public Service, Hon. Peter O’Neil, referring to him allegations of misconduct against the Applicant.

(c) On 21st January 2004, the First Respondent by internal memorandum to the Applicant informed the Applicant about his referral to the Minister for Public Service.

(d) On 21st January 2004, the First Respondent by letter informed the Prime Minister about the Applicant’s referral to the Public Services Minister for Public Service.

(e) On 5th September 2004, the Hon. Sinai Brown, MP, Minister for Public Service (Second Respondent) wrote to the Public Service Commission, setting out the charges against the Applicant, and among other things, enclosing allegations, Charges and Notice of Suspension.

(f) On 13th September 2004, the Public Services Commission wrote to the Minister for Public Service, recommending suspension of the Applicant.

(g) On 14th September 2004, the Minister for Public Service wrote to the Applicant enclosing Notice of Suspension and Two Disciplinary Charge Notices.

On 22nd September 2004 when the Applicant filed these proceedings, the Applicant did not have in his possession any concrete information or evidence as to the Minister’s decision to suspend him. On 22nd September 2004, when he made the application for interim restraining orders, I enquired of the existence of the decision. Subsequently, copies of letters exchanged between the Commission and the Minister were produced before me. Copies of relevant correspondent between the Commission and the Minister are now in evidence before me. These documents support the above facts.

The correct procedure to be followed in suspending a Departmental Head in a case where the Portfolio Minister makes allegations of improper conduct against his own Departmental Head, is not in issue in these proceedings. But this procedure was not eventually settled between the parties without difficulty. It appears to me that prior to the hearing, the parties, in particular the Applicant, were not quite sure about the correct procedure. At the hearing, it was clear to me that key players in the disciplinary process were confused about the correct procedure. One reason for this confusion, it appears to me, is that there are inconsistencies or anomalies in the procedure for suspension under the relevant statutory provisions. It’s necessary therefore, to set out the relevant provisions and the application of these provisions by the key players in the present case, as evident from correspondences exchanged between those key players and point out the main inconsistencies and anomalies, so that State can take some remedial actions.

It is convenient to first set out the full text of the correspondences exchanged between the Minister, the Commission and the Applicant. They are:-

1. Letter dated 5th September 2004 to Chairman of PSC from the Minister for Public Service (Annexure “A” to Mr Nii’s affidavit sworn on 23rd September, 2004). The letter states:-

“I refer to Justice Minister, Hon. Mark Maipakai’s letter of referral dated 21st January 2004 regarding serious allegations of impropriety against the current Attorney General, Mr. Francis Damem.

“I enclose a copy for your information.

“For purposes of consultation, the Justice Minister, Hon. Mark Maipakai has correctly referred the Attorney General to us on these serious allegations of impropriety for us to take appropriate actions under the disciplinary provisions within his contract of employment and the Public Service Management Act.

“These allegations are very serious and I write to inform you of my intention to suspend with full pay the current Attorney General, Mr Francis Damem under Section 27(1) of his contract of employment for serious allegations of impropriety within the meaning of section 18(g) and 18(h).

“Section 27(1)(a) of his Contract of Employment states:

“Where the departmental head is alleged to have committed a serious offence under Section 18, the Minister shall suspend the departmental head on full pay, and the Minister...