Joseph Klapat v NEC

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 21 March 2014
• Citation: (2014) N5536
• Court: National Court
• Year: 2014
• Judgement Number: N5536

Full : OS (JR) NO 324 OF 2013; Joseph Klapat—Secretary, Department of Community Development v National Executive Council and the Public Services Commission and Hon. Sir Puka Temu—Minister for Public Service and Hon. Loujaya Toni—Minister for Community Development and Anna Solomon—Acting Secretary, Department of Community Development and Ano Pala, MP—Acting Governor General & Acting Head of State and The Independent State of Papua New Guinea (2014) N5536

National Court: Makail, J

Judgment Delivered: 21 March 2014

N5536

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 324 OF 2013

BETWEEN

JOSEPH KLAPAT – SECRETARY, DEPARTMENT OF COMMUNITY DEVELOPMENT

Plaintiff

AND

NATIONAL EXECUTIVE COUNCIL

First Defendant

AND

THE PUBLIC SERVICES COMMISSION

Second Defendant

AND

HON. SIR PUKA TEMU – MINISTER FOR PUBLIC SERVICE

Third Defendant

AND

HON. LOUJAYA TONI – MINISTER FOR COMMUNITY DEVELOPMENT

Fourth Defendant

AND

ANNA SOLOMON – ACTING SECRETARY, DEPARTMENT OF COMMUNITY DEVELOPMENT

Fifth Defendant

AND

ANO PALA, MP – ACTING GOVERNOR GENERAL & ACTING HEAD OF STATE

Sixth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Seventh Defendant

Waigani: Makail, J

2014: 26th February & 21st March

JUDICIAL REVIEW – Suspension of Departmental Head – Executive decision to suspend Departmental Head – Review of decision to suspend Departmental Head – Procedure for suspension discussed – Investigation of alleged misconduct against Departmental Head – Investigating authority – Public Services Commission – Independent Investigation Committee – No investigation by Public Services Commission – No recommendation to suspend by Public Services Commission – Breach of prescribed procedure – Error of law – Constitution – s. 193(1D) – Public Services (Management) Act, 1995 – s. 31D.

JUDICIAL REVIEW – Suspension of Departmental Head – Suspension pending investigation into allegations of misconduct in office – Decision to suspend made without recommendation from Public Services Commission – Commissioning of Independent Investigation Committee – Composition of – Members include officers within Department and subordinates of Departmental Head – Independence of – Impartiality of – Report by Independent Investigation Committee - Legality of – Reasonableness of decision to suspend Departmental Head.

Facts

The plaintiff is the Departmental Head of the Department of Community Development. He was suspended from office by the Head of State acting on advice of the National Executive Council and in his place, the fifth defendant was appointed as acting Departmental Head. He applied to the Court to review the decision to suspend him and appointment of the fifth defendant as acting Departmental Head. He sought among others, an order in the nature of certiorari to quash the decision.

Held:

1. The procedure on suspension of a Departmental Head is prescribed by s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment.

2. According to s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment, the investigating authority in relation to the question of suspension of a Departmental Head pending investigation into allegations of misconduct in office is the Public Services Commission and it is the only body that recommends to the National Executive Council to suspend a Departmental Head.

3. The decision of the National Executive Council to suspend the plaintiff pending investigation was in breach of the procedure prescribed by s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment because the then Minister for Community Development by-passed the Minister for Public Service and the Public Services Commission when he presented a Submission directly to the National Executive Council to suspend the plaintiff.

4. An independent Investigation Committee established under clause 26.6 of the contract of employment must comprise of persons who have no association or interest in the matters, subject of the investigation.

5. The decision of the National Executive Council to commission the fifth defendant to establish an Investigation Committee comprising of officers within the Department of Community Development and subordinates of the plaintiff was in breach of the terms of the contract of employment and unreasonable.

6. The application for judicial review was upheld, the decision of the National Executive Council to suspend the plaintiff from office and appointment of the fifth defendant at acting Departmental Head was quashed and the plaintiff was reinstated forthwith.

Cases cited:

Yama v PNGBC Ltd (2008) SC922

Herman Gawi v PNG Ready Mixed Concrete [1984] PNGLR 1974

Samuel Aiye Nema v Rural Development Bank Ltd (2012) N5217

Doriga Mahuru & Ors v Hon. Lucas Dekena & The State (2013) N5305

Francis Damem v Mark Mapakai as Minister for Justice & Ors (2004) N2730

Isaac Lupari v Sir Michael Somare & The State (2008) N3476

Thadeus Kambanei v The National Executive Council & 5 Ors (2004) N3065

Dr Peter Kora v The State (2013) N5230

Counsel:

Mr B S Lai for Plaintiff

Mr A Baniyamai, for First, Third - Seventh Defendants

Mr M Kadai for Second Defendant

JUDGMENT

21st March, 2014

1. MAKAIL, J: The plaintiff is the Departmental Head of the Department of Community Development. On 11th January 2012, he was suspended from office by the Head of State acting on advice of the National Executive Council of 29th December 2011 and in his place the fifth defendant was appointed as acting Departmental Head effective from 29th December 2011. The decision was gazetted in the National Gazette No. G18. He applies to this Court to review the decision to suspend him and appoint the fifth defendant as acting Departmental Head. He seeks, among others, an order in the nature of certiorari to quash the decision.

Parties’ Evidence

2. He relies on the following affidavits which were tendered and marked as exhibits:

a) His affidavit sworn on 13th June 2013 and filed on 14th June 2013 (Exhibit “1”).

b) His affidavit verifying facts sworn and filed on 17th June 2013 (Exhibit “2”).

c) His Further affidavit sworn and filed on 19th June 2013 (Exhibit “3”).

d) His affidavit in response sworn on 15th October 2013 and filed on 21st October 2013 (Exhibit “4”).

e) His affidavit in support sworn on 23rd January 2014 and filed on 27th January 2014 (Exhibit “5”).

f) His further affidavit sworn and filed on 27th January 2014 (Exhibit “6”).

g) His additional affidavit sworn on 10th February 2014 and filed on 13th February 2014 (Exhibit “7”).

h) His supplementary affidavit sworn on 10th February 2014 and filed on 13th February 2014 (Exhibit “8”).

3. The defendants rely on the following affidavits in response which were also tendered and marked as exhibits:

a) Affidavit of Chief Secretary Sir Manasupe Zurenuoc sworn on 04th October and filed on 14th October 2013 (Exhibit “D1”).

b) Affidavit of Loujaya Toni Kouza sworn on 04th October 2013 and filed on 07th October 2013 (Exhibit “D2”).

c) Affidavit of Sylvester O’oru sworn and filed 05th September 2013 (Exhibit “D3”).

d) Affidavit of Andy Bawa sworn on 04th October 2013 and filed on 10th October 2013 (Exhibit “D4”).

e) Affidavit of Anna Solomon sworn on 14th January 2014 and filed 21st January 2014 (Exhibit “D5”).

f) Affidavit of Anna Solomon sworn and filed on 17th February 2014 (Exhibit “D6”).

g) Affidavit of Anna Solomon sworn and filed on 15th July 2013 (Exhibit “D7”).

h) Affidavit of the Acting Chairman of Public Services Commission Dr Phillip Kereme sworn on 23rd October 2013 and filed on 18th February 2014 (Exhibit “D8”).

Backgrounds Facts

4. In his written submission counsel for the plaintiff sets out the background facts of the case and facts leading to the decision. Most are not relevant to the issues raised in these proceedings. The facts which are relevant and not disputed are; the decision was the end result of allegations of widespread mismanagement and abuse of power by the plaintiff in the Department. Sometimes in early December 2011, the then Minister for Community Development Hon. Andrew Mald, MP authored a Statutory Business Paper (“Submission”) for Members of the National Executive Council (“NEC”). The purpose of the Submission was to seek the approval of the NEC to suspend the plaintiff pending investigation and to appoint the fifth defendant as Acting Secretary pending the outcome of the investigation.

5. After the plaintiff was suspended, on 20th August 2012, the NEC resolved and advised the Head of State to revoke his suspension and reinstate him. By the same decision, it advised the Head of State to revoke the appointment of the fifth defendant as Acting Departmental Head and return her to her substantive position. On 28th August 2012, acting on the advice of the NEC, the Head of State revoked the suspension of the plaintiff, reinstated him, revoked the appointment of the fifth defendant as acting...