Their reasoning is explained fully below.

does is to give the Minister the right to have information on the activities of his Department upon request. The judges thereby implied that there is a distinction between that right and a power of direction or control. But there was no real attempt made to bring out this distinction. The judges were unable to find under the Police Interim Act any provision conferring power on the Minister to direct or control the Police Commissioner either in his capacity as the Departmental Head or as both the Commissioner and the Departmental H e a d .

It may be noted that the question of direction or control raised in the Second Question is fairly wide, and would obviously cover the question of disciplinary power contained in Question One under the Reference. This point was not argued in the case, but in terms of the final decision of the Court in denying the Minister any power of direction or control, it shows therein that it includes any disciplinary power. If, then, neither the PSC nor the Minister for Police have power to discipline Phillip Bouraga in his capacity as a Departmental Head, who has?

The Court's reply was that the NEC has this power under Sch.1.10(4) of the Constitution. But this is not strictly correct, since the appointment of a Departmental Head is actually made by the Head of State under S.193 on the advice of the NEC after consultation with the PSC. The intention of Sch. 1.10(4) is to require the same procedure for suspension or removal of an appointee as was used in the appointee's appointment. It follows that in the case of a Departmental Head the prescribed procedure would be for the Head of State to remove on the advice of the NEC after consultation with the PSC.

In the end, the Supreme Court answered all the three questions under the Reference in the negative. In terms of the first two questions, the Court found that neither the PSC nor the Minister for Police had any power under the relevant statutes to discipline Phillip Bouraga as the Departmental Head. That power resides in the Head of State acting on the advice of the NEC.

If any future government is to have any power over the operations of Departments, it is crucial to know what the limitations of that

power are. The Supreme Court's treatment of this question was not as clear as it should have been.

5.2 THE LIMITS OF MINISTERIAL POWER

The question of the limits of the power of an individual Minister is best seen in the context of his power over his Department. The decision of the Supreme Court in Bouraga's Case on this point is that the mere fact of the conferment of a political responsibility on a Minister over a department under S.148(2) of the Constitution does not thereby confer on that Minister a general power of direction or control over his Department. It is necessary to examine the statutory provisions governing or relating to the portfolio in question to see whether the Minister concerned does have specific powers to direct or control his Department with regard to any aspect of the departmental activities. This was indicated by the judges in their examination of the Police Interim A c t . Pratt J. alluded to this point thus:

I do not believe it was the intention of the framers of the Constitution to prevent Parliament from passing Acts which in fact have the effect either implicitly or explicitly of giving such power of direction or control to a Minister. Indeed a number of Acts do this very thing ... The system of using an Act of Parliament to define and direct ministerial control over specific areas has the great advantage of letting everyone know exactly what powers are conferred in what areas, with the approval of the parliamentary members. b

It may be added that this proposition is subject to the Constitution, especially S.191(1), where public service matters are concerned. There are therefore two propositions deducible from Bouraga's Case in relation to the power of a Minister over activities of his department.

First, a Minister has power when he establishes that a specific statute vests that power in him. He does not have a general power. Secondly, the NEC has a general power under Schedule 1.10(4) to discipline Departmental Heads, which Ministers can use to elicit information from unco-operative Departmental Heads. This second proposition is perhaps wider in its scope than stated here. Both propositions nonetheless constitute the legal and constitutional basis of Ministerial power.

It is implicit in Bouraga's Case that all the three judges considered internal activities of Departments as outside the legitimate concern of a Minister unless a specific power is granted to him by the law. The Chief Justice went as far as supporting the conventional distinction between policy and administration that Sir Ivor Jennings adopts in his book The Cabinet Government. Jennings says the former is the legitimate concern for a Minister; the latter is not his area but the public servant’s. Kidu C.J. endorsed these statements. These observations, however, could only be regarded as obiter dicta since the Court had already decided that a Minister has no general power of direction or control over his Department.

The power of removing a Departmental Head, which was the issue in Bouraga’s Case, is in essence a disciplinary power. Disciplinary power is a part of the general power that governs personnel matters; and the power over personnel matters is vested in the PSC subject to the qualifications discussed above. Although the Supreme Court held that the power of removing a Departmental Head is vested in the NEC, it failed to deal with the whole question of disciplinary power adequately. It has, for instance, left unanswered such questions as: does the NEC also have power to mete out other lesser forms of disciplinary measures? It would seem that it could.

But why does the law, as it now stands, deprive a Minister of any power of discipline over a Departmental Head? Three reasons may be suggested. First, there was a general view held, although mistakenly as it eventually turned out, that discipline is a personnel matter which has been allocated to the independent PSC. Only Kidu C.J. addressed this problem in Bouraga's Case. This view is based on the original recommendation of the CPC and the distinction the CPC drew between ’personnel’ and 'management' matters. Secondly, it cannot be denied that to some extent the structuring of the constitutional system was determined by the prevailing views people had of the personalities of the leaders at the time: whether, for instance, they were likely to abuse any power that would be given to them. Lynch suggested that the decision not to give a Minister a general power of direction or control arose out of fear of the conduct of the Police Minister at the time, namely, Mr Peter Lus. There had been a few "exchanges" on the floor of the Parliament involving Peter Lus. John

Guise was another leader who generated some fear that if too much power was given to Ministers, they would abuse it. General D i r o , the former Defence Force Commander, told the General Constitutional Commission in July 1981 that it was because of this fear of John Guise (who was going to become the First Governor-General at Independence) that the concept of the Head of State as the commander-in-chief of the

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armed forces was dropped. Thirdly, there could have been a fairly strong feeling that discipline is a sensitive matter, especially as it related to Departmental Heads, and that should be dealt with collectively through the NEC rather than through the individual responsibility of a Minister, in particular the Minister responsible for public service matters. It is implicit in S.193 and Sch.1.10(4) of the Constitution that since the appointment of a Departmental Head is determined collectively, so should his discipline.

The question of limits of the Ministerial power also depends on the view the Court took of what S.148(2) means by political responsibility. The Court's definitions of political responsibility, as well as its understanding of the practical meaning of that

O O

responsibility, however, lack depth and clarity. °

All the judges acknowledged the fact that the principle of political responsibility is not defined by the Constitution. The Chief Justice took the view that whatever this principle was, it certainly required co-operation between public servants and politicians as well as some clear understanding of the conventional rules governing the relationship between them. He quoted Sir Ivor Jennings' Cabinet Government to some extent in support of his view, and went as far as to urge both groups to read the book.

The other two judges attempted to define what is meant by political responsibility. According to Kapi J.:

This responsibility is more in the nature of doing the groundwork for the National Executive Council for purposes of executive decisions under Section 149(3) of the Constitution and simply informing the public through Parliament or news