The Supreme Court on 28 March 2019 declared unconstitutional and invalid forthwith Constitutional Amendment Laws passed by the National Parliament in 2014 removing the independent powers and functions of the Public Service Commission (PSC) relating to the appointment, suspension and revocation of appointment of Departmental Heads, Provincial Administrators and heads of Statutory Regulatory Authorities (RSA). The Court further declared invalid with immediate effect all the subsequent or consequential Acts of Parliament and Regulations (see below) passed by Parliament under these Constitutional Amendment Laws.
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The basis of the declaration was that the National Parliament failed to comply with the mandatory procedures prescribed by Section 14 of the Constitution relating to enacting Constitutional Amendment Laws.
In 2014 Dr Philip Kereme PhD., the Chairman of the PSC filed an application as a private citizen challenging the Constitutional validity of the Constitutional Amendment Laws passed by the Parliament in 2014. The opposing parties were: Peter O’Neill (Prime Minister), Ano Pala (Minister for Justice and Attorney General), Theo Zurenuoc (Speaker). These laws are:
1. Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014; and 2. Organic Law on Provincial Governments and Local-level Governments (Amendment) (No 13) Law 2014.
These Constitutional Amendment Laws removed the PSC’s respective powers and functions relating to the appointment, suspension and revocation of appointment of Departmental Heads, Provincial Administrators and the heads of Regulatory Statutory Authorities by repealing Sections 193 and 208B of the Constitution. To give effect to these laws the Parliament repealed the Public Services Management Act 1995 and enacted the Public Service Management Act 2014 (PSMA) (relating to dept. heads & Prov. Administrators), the Regulatory Statutory (Appointment to Certain Offices) (Amendment) Act 2013 (relating to heads of Regulatory Statutory Authority). The 2014 PSMA established the Ministerial Executive Appointment Committee (MEAC) which had powers to deal with the appointment, suspension and revocation of appointments of Departmental Heads and Provincial Administrators. The PSC’s independent involvement in these processes were removed and its powers and functions conferred on the MEAC. MEAC comprises five Ministers in which the Minister responsible for Public Service is the Chairman.
The process in summary was that MEAC would determine all matters relating to the appointment, suspension and revocation of Departmental Heads and Provincial Administrators and recommend to the National Executive Council, of which they are members. In the absence of the PSC it is a political body prone to make decisions based on political interests and not necessarily on merit.
As a result of the Court’s determination of the Constitutional Amendment Laws it declared that the related statutes which the Parliament had enacted to further implement these Constitutional Amendments are now declared unconstitutional and invalid forthwith. These Statutes are:
1. Public Service Management Act 2014.
2. Regulatory Statutory (Appointment to Certain Offices) (Amendment) Act 2013.
3. Public Service (Management) (Employment of Departmental Heads) Regulations 2014.
4. Public Service (Management) (Employment of Provincial Administrators) Regulations 2014.
5. Regulatory Statutory (Appointment to Certain Offices) Regulations 2013.
The legal effect of the Court’s decision is that the terms of Section 193 and 208B of the Constitution pre-2014 remains in force. The PSMA 1995 and the RSA 2004 remain in force. There is no vacuum and no gap in the law and therefore there should be no confusion.
For the avoidance of doubt and perhaps even confusion, the Supreme Court declared that all or any actions taken under these laws now declared unconstitutional and invalid shall remain valid. In other words, any appointments, suspensions and revocations of appointments made remain valid. The Interveners were ordered to pay the Applicant’s costs of the proceeding.
Dr Kereme did challenge the Constitutional validity of the Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014 and the District Development Authority Act 2014 in his proceeding but the Court excluded these at the preliminary stage on 10 August 2017 on the basis that these did not relate to the PSC's powers and functions.
Finally, this is a victory for good governance and the well-established systems and the laws and for the People of Papua New Guinea, in particular, the Public Service.
I commend Dr Philip Kereme for taking the action in his capacity as a private citizen.
