Court decision stayed pending appeal for error of law

A RECENT decision by the National Court which nullified the appointment of Western Highlands administrator Elvis Mark Balg is being stayed pending an appeal the state filed against the decision for an error of law.
Lawyer Kevin Kipongi, from the Office of the Solicitor-General, obtained an interim stay of the decision in Supreme Court last Thursday with an order giving effect to the decision by the National Executive Council appointing Balg last Dec 20, pending the determination of the appeal.
Kipongi obtained the stay on the grounds that the appeal raised an issue of law on the National Court’s decision by Justice David Cannings on March 29, for finding that Section 60 of the Public Service (Management) Act 1995 and amended section 60 of the Act (2020) may be unconstitutional as they appeared to be inconsistent with section 73 (2) of the Organic Law on Provincial and Local Level Government.
Justice Cannings used this to nullify Balg’s appointment and reverted the appointment process to the Department of Personnel Management for reappointment of the person occupying the office before the vacancy, Joseph Neng.
Justice Derek Hartshorn upheld Kipongi’s submissions, which contended that the National Court erred in law in deciding on the constitutionality of section 60 of, the old and amended Public Service (Management) Act when it had no jurisdiction to do so.
Kipongi further submitted that in contrary to its prior findings as to the constitutionality of section 60 of the Public Service (Management) Act, the court erroneously ordered the Department of Personnel Management to reappoint Neng
He said Neng held the office before vacancy within 14 days pursuant to section 60 of the amended Act.
This was what Kipongi claimed as a confusion created as to the appointment process of provincial administrators.
The State claimed that Justice Cannings, sitting as a National Court judge, lacked the jurisdiction or power to give such opinion as to the constitutionality of a written law.