The National – Wednesday, February 16, 2011
By SAMUEL RAITANO
The National Court yesterday dismissed former National Museum and Art Gallery (NMAG) director Simon Poraituk’s appeal for judicial review on his disengagement from the post.
Deputy Chief Justice Gibbs Salika handed the decision after being satisfied that Poraituk’s contract of employment had expired and that the move to take the matter to court was an abuse to court process under Order 12, rule 40 (1c) of the National Court Rules.
The decision leaves Dr Andrew Moutu as the legitimate acting director of NMAG, a position that had been subject to controversy since last year as to who was the legitimate successor to the post after Poraituk’s term expire on Sept 3, 2009.
Poraituk had named four defendants; NMAG acting director Andrew Moutu, NMAG board of trustees president Julius Violaris, NMAG board of trustees and the National Executive Council (NEC) in relation to the case.
Poraituk had alleged that the appointment of Moutu by the NEC was illegal because the appointment was made in breach of the mandatory requirements of section 20 (1) (a) of the National Museum and Art Gallery and Statutory Authorities (Appointment) to Certain Offices Act.
However, the court found that the plaintiff’s (Poraituk) contract of employment had expired and he had no primary rights to protect.
The court decision stated that the appointment to the position was made by the NEC through the normal public service process, in which the NMAG Board of Trustees would advertised the position and people at large would apply for such position.
“As I gather from the affidavit evidences before me, the plaintiff is challenging the decision of the Board of Trustees of NMAG for not recommending him for appointment as acting director of the NMAG,” Salika said while passing the decision.
Salika added that the Public Service Commission was not bound by any list submitted by the Board of Trustees.
It was pointed out that the Board of Trustees only had the discretion to recommend a person while the NEC had the power to appoint.
It was also made known that being a director did not necessarily recommend entitlement to the acting director’s post when ones term of contract expired.
“The institution of the NMAG must move on and should not be brought unnecessarily to the court to fight out issues that do not exist. Allow the appointment process to be completed,” Salika said.