The Supreme Court issued a mandatory order yesterday morning for the Police Service Commission (PSC) to present its recommendation of Chief Inspector Albert Nalpini for the post of Police Commissioner to the President.
Issued by Justice Paul Geoghegan, another order in the judgment of the judicial review application by Nalpini quashes the decision of the PSC to continue with the re-advertising of the position for appointment of a Police Commissioner.
Justice Geoghegan pointed out that the case is not about the Court selecting a Police Commissioner which is the function of the PSC as an independent body.
Instead he said the Court should intervene because he “considers the decisions made by the PSC to be wrong”.
The decision of the PSC that is being referred to by court is the bias of Nalpini’s application.
Firstly the PSC made a decision to proceed to re-advertise the position of the Police Commissioner based on the direction of the Minister of Internal Affairs which the court ruled that is contrary to the PSC requirement as an independent body.
“In addition, the evidence clearly establishes that in its continuing decision to proceed with a re-advertising process and to refuse to present the recommendation of the Commission to the President the PSC has failed to take into account a clearly relevant matter, that matter being the lawfulness of its existing decision to recommend Mr Nalpini for appointment as the Police Commissioner,” stated Justice Geoghegan.
“This failure or refusal to do so has resulted in a clear error on the part of the Commission.”
The recommendation of Nalpini for the long-time vacant post of the highest ranking officer of the Vanuatu Police was made by the Commission under the Chairmanship of Api Jack Marikembo.
When Marikembo was terminated unlawfully, as the Supreme Court later ruled, the new Chairman and PSC “simply ignore the implications of that decision in respect of its processes in the appointment of a Police Commissioner”.
When the former PSC Chairman won his claim for unlawful termination, Nalpini filed the judicial review and applied for five orders.
“1. An order/declaration that that the first respondent’s (PSC) decision on 29th June 2016 was a lawful decision.
“2. An order/declaration that the declared lawful decision is forwarded by the first respondent to the second respondent (President of the Republic).
“3. An order that the second respondent is to reconsider the decision of the first respondent on 29th June 2016 and “give a decision”.
“4. That the decision of the first respondent is binding on the President.
“5. The process of appointing a new Police Commissioner be stayed until final determination of this case.”
The judgment made no orders regarding the President as the second respondent because evidence shows that the recommendation has never reached him therefore no decision was made.
“While one might assume that in most cases the President would have little cause to disagree with the advice of the Commission I do not consider that section 7A (1) can be interpreted in a way which is effectively makes the process a “rubber stamping” exercise.
“What the evidence establishes is that matters were overtaken by the unnecessary and unlawful termination of Mr Marikembo’s position as Chairman.”
The Supreme Court Judge says he do not think the case is a situation where the PSC can be simply asked to “start again”.
He said the PSC should be bound by that decision and that the recommendation should be presented to the President as required by the legislation.
“It is then for the President to receive the advice of the PSC regarding the matter, again as required by the legislation.
“What happens from there is a matter for the President.”