Reference pursuant to Constitution s18(2) concerning interpretation and application of s193(1A) & s193(1C) Constitution to s31A & s31C of the Public Services (Management) Act and Reservation pursuant to s15 of the Supreme Court Act (Ch 37); In re OS No 241 of 2008 (JR); In The Matter of an Application for Judicial Review under Order 16 of The National Court Rules; Isaac Lupari v Sir Michael Somare, MP – Prime Minister & Chairman of The National Executive Council and The Independent State of Papua New Guinea (2008) SC930

• Jurisdiction: Papua New Guinea
• Judge: Salika, Sakora, Kandakasi, Batari, Gabi, JJ.
• Judgment Date: 29 August 2008
• Court: Supreme Court
• Docket Number: SCR NO. 4 OF 2008
• Judgement Number: SC930

Full Title: SCR NO. 4 OF 2008; Reference pursuant to Constitution s18(2) concerning interpretation and application of s193(1A) & s193(1C) Constitution to s31A & s31C of the Public Services (Management) Act and Reservation pursuant to s15 of the Supreme Court Act (Ch 37); In re OS No 241 of 2008 (JR); In The Matter of an Application for Judicial Review under Order 16 of The National Court Rules; Isaac Lupari v Sir Michael Somare, MP – Prime Minister & Chairman of The National Executive Council and The Independent State of Papua New Guinea (2008) SC930

Supreme Court: Salika, Sakora, Kandakasi, Batari, Gabi, JJ.

Judgment Delivered: 29 August 2008

SC930

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 4 OF 2008

BETWEEN:

Reference pursuant to Constitution Section 18(2) concerning interpretation and application of s. 193(1A) & (1C) Constitution to Section 31A & 31C of the Public Services (Management) Act and Reservation pursuant to s 15 of the Supreme Court Act (Ch 37)

In re O.S. No. 241 of 2008 (JR)

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

ISAAC LUPARI

Plaintiff/Applicant

AND

SIR MICHAEL SOMARE, MP – PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Salika, Sakora, Kandakasi, Batari, Gabi, JJ.

2008: 27th and 29th August

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea – Interpretation and application of – Question relating to – When must be referred to Supreme Court – Relevant tests or factors – When National Court not obliged to refer – Constitution s 18 (2).

PRACTICE & PROCEDURE – Reference to Supreme Court – Question relating to interpretation or application of a constitutional law – When must be referred to Supreme Court – When National Court not obliged to refer – What is “question relating to” – Constitution s 18(2).

PRACTICE & PROCEDURE – Reservation of “any case or any point in a case for the consideration of the Supreme Court – Cannot be referral – When must be reserved – Relevant considerations – Supreme Court must be slow to assuming jurisdiction – National Court must be allow to discharge its duties and responsibilities – Supreme Court Act s 15.

Cases Cited:

Ereman Ragi v. Joseph Maingu (1994) SC 459.

Young Wadau v. PNG Habours Board (1995) SC 489.

Luke Benjamin Supro v. Gerea Aopi and Telikom PNG Limited [1997] PNGLR 353.

John Kombati v. Fua Singin & Ors, (2004) N2691.

(per Cannings J), Sulaiman v. PNG University of Technology (1987) N610.

John Kopil v. Malcolm Culligan and The Independent State of Papua New Guinea (1995) N1333.

Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.

Mathew Petrus Himsa & Anor. v. Richard Sikani, & Anor. (2002) N2307.

David S Nelson v. Hon Patrick Pruaitch & Ors.(2004) N2536.

Francis Damem v. Jerry Tetaga & Ors. (2005) N2900.

Lawrence Sausau v. PNG Harbours Board & Anor. (2007) N3255.

David Nelson v. Patrick Pruaitch & Ors (2003) N2440.

Zachary Gelu v. Francis Dame & Anor. (2004) N2762.

Joseph Lemuel Raz v. Paulias Matane & Ors. [1985] PNGLR 329.

Mount Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v. Wapela Akipe & Ors.[1992] PNGLR 60.

Re s 42 of the Constitutionand Jacob Hendrich Prai [1979] PNGLR 42.

In Re Organic Law on National Elections [1982] PNGLR 289.

Counsel:

H. Nii, for the Plaintiff.

E. Andrew, for the Public Service Commission

S. Singin, for First Defendant

L. Kandi, for the Second Defendant.

29 August, 2008

1. BY THE COURT: This matter is before us by way of a reference by the learned Deputy and Acting Chief Justice, Sir Salamo Injia. The reference is purportedly under s. 18 (2) of the Constitution and s. 15 of the Supreme Court Act on the following questions:

“1. Is Consultation with or recommendation of the Public Services Commission (PSC) required in every case of an appointment and/ or revocation of an appointment of a Departmental Head, under Section 193(1A) and (1C) of the Constitution respectively? This reference is made under s 18 of the Constitution.

2. Does Section 31A of the Public Services (Management) Act which gives effect to s 193 (1C) of the Constitution and s 31C of the Public Services (Management) Act prescribe the only procedure for the appointment and revocation of appointment of the Chief Secretary respectively? This reference is made under s 18 of the Constitution.

3. If the answer to Question 2 is in the affirmative, should Regulation 1(1) of Public Service (Management) Criteria and Procedure for Suspension and Revocation Appointment of Departmental Heads and Provincial Administrators) Regulation No. 7 of 2003 be read to be ultra vires? This reference is made under s 15 of the Supreme Court Act, to the extent that this issue raises constitutional issues under s 193(1A) and (1C) of the Constitution, a reference under s 18 of the Constitution is also made.

4. Whether the employment relationship between the Chief Secretary and the State is removed from the Public law domain by operation of Part VI – Division 2 (ss. 26, 27, 28, 29 & 30) of the Public Service (Management) Act and ss. 2, 36, 37, 38 & 39 of the Employment Act. This reference is made under s 15 of the Supreme Court Act, and to the extent that this issue raises constitutional issues under s. 193 (1A) & (1C) of the Constitution, a reference under s 18 of the Constitution is also made.”

Preliminary Issue

2. Before getting into the merits or otherwise of the above questions, a preliminary issue arose. The issue was, do these questions raise any constitutional or a relevant and appropriate point or part of the case before the National Court for the consideration of the Supreme Court within the meaning respectively of s.18 of the Constitution and s. 15 of the Supreme Court Act? There are two parts to this issue and these are:

(a) Do the referred questions in fact raise an issue or issues of constitutional law interpretation or application within the meaning of s. 18 of the Constitution?

(b) Do the referred questions state a point of law or case within the meaning of s. 15 of the Supreme Court Act?

Relevant Background

3. For a proper understanding of the preliminary issue, we consider it appropriate and necessary to state the back ground to the referral and the preliminary issue. Accordingly, we note that, what has led to the referral is a decision by the National Executive Council made on 24th April 2008, dismissing Mr. Isaac Lupari, as Chief Secretary to the Department of Prime Minister. Before that decision, Mr. Lupari’s employment was under a written contract of employment, which is permitted by the Public Service (Management) Act, enacted by Parliament under s. 193 of the Constitution. Following the decision in question, Mr. Lupari applied for judicial review claiming that, the National Executive Council did not follow the procedure laid down under the Public Service (Management) Act, when it decided to dismiss him, on the basis of which he sought his reinstatement.

4. In the National Court and now before us, the Counsel for the Prime Minister and the State argued that, the Public Service (Management) Act, allows for either of two ways in which Mr. Lupari could be appointed or terminated. One is under s. 31C which allows for the involvement of the Public Services Commission before effecting any dismissal of a Departmental Head and the other is under s. 28 which looks to the contract. Following on from there, they argued that, since Mr. Lupari’s employment was under a contact of employment, his remedies are in private law, by reason of which, he could sue for damages for breach of his contract and not judicial review.

5. On the other hand, Mr. Lupari argued that, his employment contract was for employment in the Public Service pursuant to the Public Services (Management) Act. As such, his employment contract did not remove his rights as a Public Servant and hence, his right to judicial review remedy following his dismissal. Consequently he argued that, his employment was in the public law domain and as such, he is entitled to seek judicial review, notwithstanding the contract.

6. In support of their respective arguments, the parties referred to a number of National and Supreme Court decisions. Counsel for the Prime Minister and the State relied on the decisions of the Supreme Court, in the cases of Ereman Ragi v. Joseph Maingu

i (1994) SC 459.

i1 and Young Wadau v. PNG Harbours Board

ii (1995) SC 489.

ii2 and the National Court decision cases of Luke Benjamin Supro v. Gerea Aopi and Telikom PNG Limited,

iii [1997] PNGLR 353 (per Woods J).

iii3 John Kombati v. Fua Singin & Ors.,

iv (2004) N2691 (per Cannings J).

iv4 Sulaiman v. PNG University of Technology,

v (1987) N610.

v5 John Kopil v. Malcolm Culligan and The Independent State of Papua New Guinea,

vi (1995) N1333 (per Woods J).

vi6 Albert Kuluah v. The University of Papua New Guinea

vii [1993] PNGLR 494 (per Sheehan J).

vii7 and Mathew Petrus Himsa & Anor. v. Richard Sikani, & Anor.

viii (2002) N2307 (per Kandakasi J).

viii8

7. On Mr. Lupari’s part he relied on the decisions of the National Court in David S Nelson v. Hon Patrick Pruaitch & Ors,

ix...