The Supreme Court has ordered that Paula Ma’u’s appointment as Acting Chief Executive of the Ministry of Foreign Affairs be suspended.
The court also ordered the Public Services Commission to not advertise for or recruit a Chief Executive Officer of The Ministry of Foreign Affairs.
The Secretary for Foreign Affairs lodged an application on February 19 for leave to commence judicial review proceedings and an interim injunction relating to the creation of position of Chief Executive Officer (CEO) to the Ministry of Foreign Affairs and recruiting a Chief Executive Officer to that role.
Clause 39 of the Constitution empowers the King to appoint his “representatives to other nations according to the custom of other nations.”
The court was told that the Secretary for Foreign Affairs was appointed by the King to a role that encompassed diplomatic functions. To appoint a CEO would impinge on the role of the secretary and therefore impede His Majesty’s prerogative under the constitution.
Appointing an Acting CEO would likewise duplicate tasks and functions already allocated to, and undertaken by the Secretary.
A claim was also made that appointing an acting CEO, who in turn had functions that included diplomatic duties, usurped His Majesty’s prerogative to appoint a diplomatic officer under the Constitution.
The Secretary for Foreign Affairs also claimed that the appointment of an Acting CEO was unlawful.
In their defence, the Public services Commission, the Minister of Foreign Affairs and acting CEO Paula Ma’u argued that contract under which the Secretary was employed was unlawful.
This was because Lord Dalgety KC signed off on the contract and had no power to so do pursuant to Privy Council resolution 28 November 2011.
The defendants claimed that the appointment of the SECFO did not confer diplomatic functions upon him as Clause 39 of the Constitution was limited to appointments made in respect of “representatives to other nations according to the custom of nations”. They argued that this was a clear reference to diplomatic posting overseas.
In his ruling, Judge Cooper said the appointment of an Acting CEO may have the potential to undermine the years-long established arrangements for diplomatic engagement.
“In considering overarching considerations of societal and legal stability, I note the Plaintiff’s Action essentially is to revert to the arrangements that have been in place for some years,” the judge said.
“By its nature, that means following what has become an established practice in the Kingdom insofar as the role of SECFO.
“At this stage, allowing that to continue seems to me to maintain constancy by reverting to the established order.”
He therefore ruled that until further Order of the Court, the Public Services Commission was restrained from proceeding to advertise and recruit a Chief Executive Officer of the Ministry of Foreign Affairs; and
Paula Mau’s appointment as Acting Chief Executive Officer of the Ministry of Foreign Affairs was suspended.
