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THE PROCESS IN LAW – APPOINTMENT, SUSPENSION & TERMINATION OF DEPARTMENTAL HEADS

by NEMA YALO LLB
The recent saga in relation to the appointment of the Secretary for the Department of Commerce and Industry has prompted me to write this article for public benefit. The process relating to the appointment, suspension and revocation of the appointment of a departmental head is provided for under the Constitution, the Public Services Management Act 2014 (hereafter “the Act”) and the Public Services (Management) (Employment of Departmental Heads) Regulation 2014 (hereafter “the Regulation”). This article should answer two primary issues, namely, what is the process involved in appointing, suspending and revocation the appointment and who ultimately makes the appointment, suspension and the revocation of appointment. For space reasons, some detail aspects of the process are omitted.

Appointment of Departmental Head.
The appointment of a departmental head is provided for under Section 193 of the Constitution and Section 27 of the Act. A detailed procedure is prescribed under Division 3 of the Regulation. When an office of a departmental head is vacant or is about to become vacant, Regulation 3.3 requires the Department of Personnel Management (hereafter “DPM”) to advertise publicly the position vacancy. Following the advertisement an internal selection committee comprising officers at deputy secretary level from the DPM and the departments of PM & NEC, Justice & Attorney General, Provincial and Local-level Government and National Planning interviews and shortlists candidates following a process prescribed by the Regulation. The Secretary for DPM then forwards the selection report and a shortlist of not less than three (3) and not more than five (5) candidates to the Ministerial Executive Appointments Commission (hereafter “the MEAC”).

What is MEAC?
The MEAC is a subcommittee of the National Executive Council (hereafter “the NEC”) comprising five (5) Ministers. It is established under Section 28 of the Act and its functions are stipulated therein. In short MEAC’s role is to advice the NEC on the appointment, suspension and revocation of the appointment of departmental heads, provincial administrators and heads and board members of statutory authorities. The members of MEAC are (1) the Minister for Public Service (Chairman), (2) Minister for Justice and Attorney General, (3) the Minister for Treasury, (4) Minister for National Planning and (5) the portfolio Minister whose departmental head’s appointment is before MEAC. It is apparently a political body with no involvement of the independent constitutional authority, namely the Public Services Commission as was the case prior to the legislative changes in 2014. 

However a serious word of CAUTION. No member of the public should comment on the constitutional validity of the law and the processes. This and other related issues regarding the processes involving the appointment, suspension and termination of departmental heads, provincial administrators and the heads or CEOs of statutory authorities were argued before the Supreme Court in 2017 and the Court has reserved its judgment. Any discussion will be subjudice. Subjudice is a Latin word meaning “under judgment”. It is also a legal term meaning an issue or a matter under judicial consideration is prohibited from public discussions. For the same reason, this article steers away from discussing the same issues.
Returning to the process, MEAC considers the selection report and forwards to the NEC a shortlist of three candidates for the appointment with its own recommendation of a preferred candidate. The NEC deliberates on the report and the recommendation. If it is satisfied with the recommendation it resolves to advise the Head of State to make the appointment. The NEC has no power at this stage to introduce a new candidate not recommended by MEAC. The Head of State has no legal powers to review and question the advice from the NEC. His role is simply to make the appointment by signing the relevant instruments and publishing a notice in the National Gazette. The notice usually states the date when the appointment takes effect and the term of the appointment.

Suspension and Termination of Departmental Head.
The suspension and termination of a departmental head is provided for under Section 193 of the Constitution and under Section 27 of the Act and under the detailed provisions of Division 7 of the Regulation. A departmental head may be suspended or terminated from employment for non-performance or on disciplinary grounds the details of which are prescribed under the Regulations and the contract of employment. A portfolio Minister may issue a warning to his departmental head following consistently poor performance over a period of not less than six months. Failure of compliance results in the portfolio Minister presenting a report to the MEAC of which he is a member to determine the departmental head’s employment. By Division 7.2(1) of the Regulation, a portfolio Minister may suspend his departmental head from office on disciplinary grounds “only in accordance with the recommendation” of MEAC. If a portfolio Minister thinks that his departmental head has committed a serious misconduct and breach of his contract of employment which warrants instant removal from office the Minister may offer the departmental head an opportunity to respond to the allegations within seven days period. The portfolio Minister then forwards the departmental head’s response and his report to the Minister for Public Service who acts upon the advice of the Secretary for DPM to suspend the departmental head on full pay pending further investigation by an independent committee comprising secretaries of the departments of DPM, Justice & Attorney General, PM & NEC and Finance.

If the investigation finds that the departmental head has a case to answer the portfolio Minister who initially raised the allegation is advised to charge his departmental head. When the departmental head responds either admitting or denying the charge(s) the portfolio Minister advises the Minister for Public Service (Chairman of MEAC) accordingly. The Chairman of MEAC shall obtain legal advice as to the culpability of the departmental head and thereafter recommend to the NEC for appropriate action.
The ultimate power to suspend or revoke an appointment under the law rests with the Head of State acting with and in accordance with the advice of the NEC.

Conclusion
The law at present is that it is the Head of State (and not a Minister) who appoints, suspends and terminates from office a departmental head acting with and in accordance with the advice from the NEC, unless of course where the NEC’s power is delegated to a Minister. To act otherwise is corrupt conduct, plain and simple.
The author is a former Counsel to the Ombudsman Commission and is also a former Judge of the National and Supreme Courts of PNG.