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Latasi v Attorney General [2003] TVHC 26; HC Civil Case No 01 of 2003 (30 September 2003)

IN THE HIGH COURT OF TUVALU

CIVIL JURISDICTION

CASE NO: 1/03

KAMUTA LATASI

Applicant

v

ATTORNEY GENERAL

Respondent

James Duckworth for applicant
Attorney General for respondent

Hearing: 10 April and 26 September 2003
Judgment: 30 September 2003

Judgment

Following the dissolution of Parliament in May 2002, Cabinet continued to meet pending the general election. Polling day was 25 July 2002 and, two weeks earlier, Cabinet held its last meeting after which the Ministers were free to return to their islands in preparation for the election.

At that time, and presumably as the result of a decision made at that meeting, the Secretary to Government sent a circular, dated 10 July 2002, to all Permanent Secretaries, various constitutional post holders and all heads of departments in the following terms:

"Subsistence allowance for members of the Caretaker government when visiting their home islands

Addressees are advised that a directive has been issued by Cabinet which stated that members of the caretaker government and their spouses would continue to receive allowances while visiting their constituencies in preparation for the General Election, only for a time period of two weeks.

For those that exceeded the two-week period, they would have to lodge a claim for the extra days spent on the islands on their return to headquarter.

I would be most grateful if you could take note carefully of the above Cabinet's decision."

It appears that, as a result, they were paid subsistence allowance for the two weeks.

The applicant is and was, immediately prior to the election, a Member of Parliament and he bring this action seeking a declaration "that the decision made by the Caretaker Cabinet on or about 10 July 2002 that members of the Caretaker Government and their spouses be entitled to receive allowances whilst visiting their constituencies in preparation for the General Election was unconstitutional and ultra vires being in excess of the powers given under the Constitution".

He also seeks an order that the members involved and their spouses should pay the money back.
The applicant claims that this was not only in excess of Cabinet's powers and unlawful but that it gave the Ministers an unfair advantage when campaigning for re-election.

It is clear that the Government at the time regarded itself as a Caretaker Government. Counsel for both parties have submitted that this may not have been the case and it may have been an interim government. Interesting though the point is, it has not been fully argued and it is not necessary to decide it in the present case.

What is in issue here is simply whether Cabinet had the power to order the payment of subsistence allowances at that time and in those circumstances.

The Prescription of Salaries Act (Cap 54) provides that the Prime Minister and Ministers, amongst others, shall be entitled to be paid allowances at the levels set out in the Schedules. Included in those allowances are subsistence allowances and counsel advises the Court that the Schedule provides in relation to them that:

"in the case of those office holders (except private members) who are required to take up residency on Funafuti, this allowance is payable from the date of departure from Funafuti on official business until the office holder returns to Funafuti."

The circular of 10 July 2002 makes it perfectly clear that it is referring to subsistence allowances and so the questions for the Court are; what is official business, where these office holders were travelling on official business when they returned to their islands for the two weeks immediately preceding the election and did Cabinet have the power to issue the directive for their payment?

Official business is not defined in the Act, the Constitution or the Interpretation Act and counsel, correctly, suggest the term should be given it ordinary meaning. I am satisfied that, in connection with the business of a Government office holder, official business means business directly and solely deriving from and relating to his office. In the present case it would have to be business which directly and solely relates to the Minister's work as a Minister. That cannot include his election campaign.

The applicant's case is that the circular clearly states the purpose of the trip is "in preparation for the General Election". The period of two weeks stated in the circular is also relevant. Section 15 of the Electoral Provisions (Parliament) Act requires the returning officer in each electoral district to give notice of the names of the candidates in his district to the returning officers of the other electoral districts not less than 14 days before polling day. The last meeting of Cabinet had taken place and the members needed to return to their islands for the election campaign. On that evidence, the applicant suggests it is clear that the Ministers were not on their islands for official business and were there solely for their election campaign.

The Attorney General submits that the burden of proving such an allegation lies on the applicant as the party asserting it. It is not, he suggests, for the respondent to prove that they were carrying out official business. I disagree. The fact of whether and, if so, what official business any particular Minister was carrying out in those two weeks is a matter peculiarly within his own knowledge. If he does claim he was on official business, he should have filed evidence of that fact.

I am satisfied that the evidence before the court in the applicant's affidavit and the circular establish prima facie that the true purpose of these visits was for the purpose of the election. In the absence of further evidence from the respondent, I am satisfied that the Ministers were not on official business and were not therefore entitled to subsistence allowances.

The only other question for determination, therefore, is whether Cabinet had the power to make the order for such payment.

The Attorney General submits that the circular "indicates that it is an administrative directive for the various Ministries to pay the Ministers and their spouses out of their Ministry's votes. It is an executive act and not subject to review by the Court as no law has been breached. Subsistence allowances payable under Cap 54 were paid from Parliamentary vote and not from the individual Ministerial vote. Cap 54 was used as a guide for the quantum of allowances to be paid and nothing more."

He has filed no evidence to support the suggestions made in that submission. The circular makes no mention of the suggested fact that the allowances were to be paid out of the ministries' votes. It is addressed far wider than to the Permanent Secretaries of the various ministries involved. There is nothing to say that the Schedule to the Act is simply a guide to the level of allowance.

On the contrary, the whole tone of the circular with its reference to subsistence allowances and the direction that the members of the caretaker government and their spouses "would continue to receive allowances" (my emphasis) points to these being the normal subsistence allowances as paid previously.

As I have stated, I am satisfied the visits were not for official business and so the Act did not allow payment of subsistence allowances. The Cabinet directive breached the powers given under the Act and was ultra vires.

I therefore make the declaration in the following terms:

That the directive issued by Cabinet on 10 July 2002 that members of the Caretaker Government and their spouses should continue to receive subsistence allowances on their return to their islands two weeks before the General Election was in breach of the terms of the Prescription of Salaries Act and the Schedules thereto and was ultra vires and void.

The further order sought is that those payments should be re-paid by the recipients into government funds. The applicant properly named the Attorney General as the respondent on behalf of the government. The Ministers involved and their spouses should have been individually served and joined before the Court could consider such a further order. They were not and it is refused.

Dated this 30^th day of September, 2003

THE COURT.