Supreme Court Case Reveals Deep-Seated Governmental Misunderstanding of Rules and Procedures
Toakase Panisia Palelei’s victory against the Public Service Commission (PSC) in the Supreme Court has brought to light the weakness of the PSC’s defence, stemming from their lack of understanding of their own regulations.
The ruling, delivered by Lord Chief Justice Whitten KC, questioned the validity of the Commission’s regulations and decisions. Introduced in 2003 and adjusted in 2010, these regulations have been found wanting due to various inaccuracies, omissions, and nonsensical language. Justice Whitten suggested the need for amendments, or even an outright repeal and replacement, to rectify the flaws.
Interestingly, Justice Whitten noted that unlike other Kingdom’s Ministries, the Ministry of Foreign Affairs uniquely operates without a CEO. This detail turned out to be pivotal in the disciplinary proceedings against Palelei.
The events began when the Minister of Foreign Affairs, Hon. Fekitamoeloa ʻUtoikamanu requested a trip, which was to be organised by the Deputy Secretary, Palelei. However, Palelei found that the budget for the trip had been exhausted and she wasn’t authorized to approve additional expenditure. This led to a complaint from the Minister, prompting the PSC, under its new CEO, to take disciplinary action.
The proceedings escalated rapidly. On 1 December 2022, the PSC began disciplinary actions against Palelei. On 21 December 2022, she was suspended without pay and informed of more impending disciplinary procedures. By 1 March 2023, Palelei was charged with serious breaches of discipline. However, on 31 March, the court allowed her to apply for a judicial review of the Commission’s decisions and halted further disciplinary action until the hearing.
The heart of the disciplinary case revolved around an alleged failure to implement an “executive directive” from the Minister of Foreign Affairs, sent to Palelei and other staff members. Despite the directive being reissued, there was no response from Palelei or the Secretary, resulting in the Minister filing a complaint with the PSC.
Under Regulation 5 of the Public Service (Disciplinary Procedures) Regulations, a preliminary investigation into such complaints should be conducted by the Ministry’s CEO, who is then required to provide a detailed report to the Commission’s CEO. However, the Ministry of Foreign Affairs does not have a CEO. Furthermore, the Secretary, who does not fall under the definition of a CEO as per the Public Service Act, declined to participate in the disciplinary proceedings against Palelei.
The final ruling by Justice Whitten underscored the key issue: the Ministry of Foreign Affairs’ lack of a CEO. The Secretary, while holding the position of Lord Privy Seal and being in charge of the Ministry, was not under a fixed employment contract as per the Act and cannot be considered a CEO. Justice Whitten criticised the Commission for not appointing a CEO as required, which he believes would have facilitated proper adherence to the Regulation 5 process.
Justice Whitten concluded that, without a Regulation 5 report, there was no legal basis for the Committee or the Commission to recommend or execute Palelei’s suspension. He declared the Commission’s decisions to be unlawful, invalidated the disciplinary actions against Palelei, and remitted the matter back to the Commission for further lawful consideration.
As part of the judgement, the Commission has agreed to pay 75% of Palelei’s legal costs. In case of a disagreement, an independent assessment will be carried out.
The legal representatives for this case were Mrs Dana Stephenson KC for Palelei and Mr Sione Sisifa SG for the Commission.
The court’s decision overlooked one crucial aspect – the impulsive decision by the Minister to lodge a complaint directly with the Public Service Commission. Before taking such a step, it would have been prudent for the Minister to internally consult with her senior staff. This would have allowed her to understand the reason behind the unavailability of funds for her travel and to explore alternative funding sources within the Ministry’s budget.
This verdict shines a spotlight on the government’s significant misunderstandings of its own rules and procedures. It illustrates the Public Service Commission’s incompetence and its hasty actions, bypassing crucial processes. The case also hints at an alarming lack of awareness from the Prime Minister, who should be overseeing the PSC.
This sequence of events underscores the importance of appropriate training and role clarity within the government to prevent such misunderstandings from escalating into legal disputes. It serves as a reminder about the detrimental consequences of hasty judgement without fully understanding and adhering to due processes.
