Knowing right from wrong

 THE media is an important avenue for raising awareness and helping the community understand the types of laws and legal issues that affect us. 

This is illustrated by recent media coverage of senior public servants going to court to challenge decisions of the National Executive Council (NEC) to suspend or terminate their employment.

While citizens read media reports of such cases, what is not always known is the legal basis for the NEC’s powers to make those decisions and for the aggrieved public servants aggrieved to challenge them.

Often, some of the reasons put forward to challenge the NEC’s decisions are not meritorious and the courts will reject them. 

At other times, the challenge is grounded on a mere technicality, which may be corrected without necessarily derogating from the substance of the reasons for the NEC’s decisions.

In situations when neither of these applies, the grounds upon which an NEC decision is challenged is either that:

• The procedure preceding the decision did not follow the steps as prescribed by the law; or
• Aspects of the procedure adopted are themselves unjust or defective; or 
• The NEC decision itself cannot be supported by the evidence presented or information available to it. 

A case that has attracted interest and the interest of the public generally and the media and which illustrates these areas of the law involve the challenge by Joseph Klapat against the NEC’s decision to suspend him as secretary of the Department for Community Development in 2012.  

Substantive and procedural justice

Whatever the reason may be to challenge an NEC decision, they fall into one of two major categories; substantive or procedural error. 

A substantive error relates to a failure in the decision to comply with a substantive requirement of law. 

A procedural error, on the other hand, relates to a failure in the decision to comply with the required procedures. 

What is substantive and what is procedural law? 

Substantive law informs us of the relevant legal principles or rules governing a particular matter. Violations of these rules will lead to some form of punishment. 

For example, the rules against corruption and stealing public funds by department secretaries are substantive rules. 

If a department secretary is found to have breached any of these substantive rules, appropriate sanctions or punishment will be applied to him and it may include criminal prosecution, demotion or termination.

It is a requirement of law that both substantive and procedural rules are observed at all levels of decision-making in all the three arms of government: legislature, executive and judiciary. 

This is especially important with the judiciary so that substantive justice can be done.

Procedural justice is a prerequisite or else substantive justice may be denied to the accused or grievant. 

For example, a person who is alleged to have offended a substantive legal rule, such as corruption, theft of public funds or other misconduct, must first be charged, given an opportunity to be heard, and appropriate recommendations or submissions made by an authorised agency before the NEC (as a decision-making body) can proceed to determine any final outcome.

If a decision against the accused is taken without first observing these procedural requirements, he would suffer both procedural and substantive injustice. This is clearly repugnant to law.

Procedure for termination and suspension of officers

Under the existing legal framework, the power to terminate or suspend employment contracts of department secretaries and constitutional office-holders lies with the NEC as stated by Section 193(1C) and (1D) of the Constitution, Section 31(C) and (D) of the Public Service Management Act 1995.

Under these rules, a specific recommendation for either suspension or termination of a department secretary must be made by the Public Services Commission (PSC). 

There is no provision in either the Constitution or the Public Service Management Act 1995 authorising individual ministers or the secretary of the Department of Personnel Management to make a submission or recommendation for suspension or revocation of employment. 

Any such act would clearly be ultra vires the Constitution and the Public Service Management Act 1995.

However, if the conduct of a department secretary suggests misconduct, both the NEC and the PSC can ask the head of the Department of Personnel Management to investigate.

The investigation must be independent and external to the department of which the suspended secretary is the head. 

The findings are to be reported to the PSC within 30 days of the commencement of the investigations.

The PSC will consider the report and submit its own recommendations to the NEC whether to suspend or terminate the officer.

If the NEC decides to suspend or terminate the officer, it has then to advise the head of state, the governor-general, by appropriately publishing it in the National Gazette.

The stage between the allegation of misconduct to investigation and submission of the recommendation to the NEC is procedural and therefore procedural law. 

The NEC then applies the substantive rules by evaluating the evidence and information to determine whether the officer is guilty or innocent.

Court findings and orders in Klapat’s case

The chronology of the important facts of this case are that in 2011, the then minister for community development took a submission directly to the NEC for Klapat to be suspended pending an investigation into an alleged misconduct.

The NEC suspended him and ordered an investigation.

In August 2012, the NEC reinstated him as department secretary but the incumbent acting secretary went to court and got the decision quashed, leaving Klapat still under suspension.

On Dec 3 last year, the minister for public service and minister for community development co-authored and presented directly to the NEC a submission which, among other things, admitted that Klapat’s suspension and investigation did not follow the disciplinary procedure under his contract of employment.

On Dec 19, the NEC considered the submission and directed instead that further investigations be conducted based on fresh allegations against Klapat.

This, it is to be noted, was without any involvement by the PSC.

No decision was however made to continue the acting arrangement of the acting secretary.

Klapat asked the court to review the NEC’s decision to suspend him and to retain the acting secretary.

His main argument was that his suspension and the appointment of the acting secretary contravened the clear provisions of the Constitution, the Public Service Management Act and the supporting regulations, and his contract of employment.

After considering submissions by the counsel for all the parties in the proceedings, and drawing on earlier decisions of the National and Supreme Courts (such as Francis Damem v Mark Maipakai as Minister for Justice and Ors and Isaac Lupari v Sir Michael Somare and the State), Justice Collin Makail found serious breaches and blatant disregard of relevant procedural rules that bind it – from the portfolio minister to the NEC itself. 

He found, in particular, that the PSC had not made any recommendations to the NEC which suspended Klapat on Aug 20, 2102, and later on Dec 19, 2013.

For these reasons, Justice Makail ordered both NEC decisions invalid and void. 

He ordered for Klapat to be reinstated as secretary and for the acting secretary to revert to her substantive position.

In relation to the investigation process itself, the court found it as a matter of serious conflict of interest to have involved the acting secretary, especially when she was a party to the proceedings and stood to benefit directly from Klapat’s suspension or termination. 

The court found that the inclusion of officers within the department to investigate their superior was erroneous and a breach of Klapat’s employment contract.

• John Luluaki is the executive dean of the school of law at the University of PNG. The views expressed here are his own and do not necessarily reflect that of the university or The National 

• Part 2: The consequences