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Timakata v Attorney General [1992] VULawRp 9; [1980-1994] Van LR 575 (1 November 1992)

[1980-1994] Van LR 575

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Cases No. 103, 104, 105 of 1992


IN THE MATTER OF:

THE CONSTITUTION OF THE REPUBLIC OF VANUATU

AND:

IN THE MATTER OF THE BILLS:

1. FOR THE BROADCASTING AND TELEVISION ACT NO. OF 1992

2. FOR THE BUSINESS LICENCE (AMENDMENT) ACT NO. OF 1992

3. FOR THE LAND ACQUISITION ACT NO. OF 1992


BETWEEN:

THE PRESIDENT FREDERICK KALOMUANA TIMAKATA,
President of the Republic of Vanuatu
Petitioner

AND:

THE ATTORNEY GENERAL
of the Republic of Vanuatu
Respondent

Coram: Chief Justice Vaudin d'Imecourt

Dr G A Flick and Mr G Vasaris for the Petitioner
R Merkel QC and Mr G Maguire for the Respondent


JUDGMENT

[CONSTITUTIONAL LAW - ADMINISTRATIVE LAW - "protection of the law" - "property" - "equal treatment under the law for administrative action"]

The Petitioner, His Excellency President Frederick Kalomuana Timakata of the Republic of Vanuatu, having considered that the above mentioned Bills were inconsistent with a provision of the Constitution, referred the matters to the Supreme Court for its opinion, pursuant to his powers under Article 16(4) of the Constitution of Vanuatu as follows:

16. (4) If the President considers that the bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.

Facts

On the 19th June 1992, the President was presented with a number of Bills for his assent and pursuant to his Constitutional duties under Article 16(4), on the 29th June 1992, he petitioned the Supreme Court with regards to three of these Bills, which shall be referred to as follows:-

(1) The Broadcasting and Television Bill, ( Petition 103) which proposes to set up a statutory corporation to be known as The Vanuatu Broadcasting and Television Corporation, V.B.T.C. for short;
(2) The Business Licence (Amendment) Bill, (Petition 104) which purports to give the Minister wide and far ranging powers to grant or revoke a business licence and at the same time seeks to prevent any challenge of such grant or revocation in any court;
(3) The Land Acquisition Bill, (Petition 105) which purports to entitle the Government to compulsorily acquire land and easements for a public purpose.

I propose to take each of these petitions in turn and for simplicity's sake, they shall be referred to hereinafter as petitions 103, 104 and 105.

In Petition 103, the President petitioned as follows:

"4. The President considers that the Bill is inconsistent with and infringes the Constitution in that Sections 3(6), 43, 47 and 48 of the Bill are contrary to Article 5(1) paragraphs (d), (j) and (k) of the Constitution and are thus invalid and of no legal effect."

Your Petitioner humbly prays for:-

A declaration that each of the aforementioned sections of the Bill is contrary to the Constitution and is invalid.

Section 3(6) of the Bill reads as follows:-

"The Prime Minister may if he thinks it expedient to do so, remove any member from office without assigning any reason therefore and such removal shall not be called in question in any Court."

(This is what is commonly known as an "ouster clause". It seeks in terms, to prevent the Courts from exercising any jurisdiction over any administrative actions, taken by the Prime Minister, to remove from office any member of the VBTC.)

Section 43, is headed "Licensing" and governs who shall be entitled to broadcast under the proposed Act and in particular entitles the Minister to grant a Licence only to a suitably qualified person.

"Licensing
43. (1) No person other than the corporation established under this Act shall maintain a broadcasting station unless such person has obtained a licence from the Minister.
(2) The Minister may with the approval of the Council of Ministers, issue any person a licence for the establishment and maintenance of a private broadcasting station:
Provided that no licence shall be granted for the licensing of any broadcasting station on board any ship registered in Vanuatu for the purpose of carrying out transmission of broadcast matter outside the territorial waters of Vanuatu.
(3) No licence shall be issued by the Minister unless he is satisfied that the person applying for a licence has such technical financial and professional qualifications as may reasonably be required for the purposes of establishing and maintaining a private broadcasting station."

Section 47 empowers the Minister to vary, revoke or impose further conditions, in the following terms:

"47. (1) Subject to subsection (2). the Minister may, during the currency of the licence, by notice in writing to the licensee, vary or revoke any of the conditions upon which the licence is granted or impose further conditions.
(2) The Minister shall give not less than 14 days notice in writing of his intention to vary, or to impose a further condition and shall specify in the notice the variation proposed or the condition to be revoked or imposed."

Section 48 entitles the Minister under certain conditions, to revoke or suspend the licence, in the following terms:

"48. (1) Subject to subsection (2), the Minister may, by notice in writing to the licensee, suspend or revoke a licence granted under this part where he is satisfied that one of the following grounds exists:
(2) The Minister shall before suspending or revoking any licence under the provisions of subsection (1), give the licensee notice in writing of his intention to do so and calling upon the person concerned to show cause to him why such licence should not be suspended or revoked, as the case may be."

In Petition 104, the President petitions in a similar way and states that he considers:

"that Section 1 of the Bill is contrary to Article 5(1) paragraphs (d) (j) and (k) of the Constitution"

Section 1 of the Bill reads as follows:

1. The following new section is inserted after Section 8 of the Business Licence Act [CAP 173]
"POWER TO REFUSE TO ISSUE OR RENEW OR REVOKE A LICENCE
8A (1) Notwithstanding any other provision in this Act, the Minister in his discretion may:
(2) The Minister may not give any reason for the refusal or revocation referred to in subsection (1) and such refusal or revocation shall not be challenged in any Court in any proceedings whatever"

It is submitted on behalf of the Petitioner as follows:-

1. Articles 5(1)(d) and 5 (1)(j) of the Constitution of Vanuatu would be infringed by the enactment of: (i) clause 3(6) of the proposed Broadcasting and Television Act of 1992; and (ii) clause 8A(2) of the proposed Business Licence (Amendment) Act 1992;
2. Articles 5(1)(d), 5(1)(j) should be construed "with all the generality which the words used admit" The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; [1964] 113 CLR 207 at p225. see also Ong Ah Chuan v Public Prosecutor [1980] 3 WLR 855 at 864-865;
3. "Protection of the Law" within the meaning of Article 5(1)(d) is both a guarantee of Procedural fairness; and/or fundamental rights since clause 5(2) is expressly not an exhaustive definition.
4. The Protection against the unjust deprivation of "property" within the meaning of Article 5(1)(j) is both a protection of that "Property" being a licence free from an unauthorised revocation see Banks v Transport Regulation Board, [1968] 118 CLR 222 and the right to a renewal see McInnes v Onslow Fane [1978] 3 All ER 211 and probably even upon initial application; and or the right to conduct that which otherwise would be lawful, the right to earn a livelihood see Russel v Duke of Norfolk [1949] 1 All ER 109; Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 190, Edwards v SOGAT, (1971) 1 Ch 354 at 376. That the right to earn a livelihood by following the ordinary occupation of life is protected by the Constitution (in America see Terance v Thompson 263 U.S. 192) and is in itself a fundamental right: see Dent v West Virginia [1889] USSC 11; 129 U.S. 114.
5. The term property as used in a Constitution is "The most comprehensive term that can be used" see the Commonwealth v New South Wales [1923] 33 CLR at 21 and extends to: "any interest in any property" Minister of State for the Army v Dalziel [1944] 68 CLR at 285 including "any innominate and anomalous interests" see Bank of N.S.W. v The Commonwealth [1948] 76 CLR at 349.
6. The protection from an "unjust" deprivation of such property is both a protection against the injustice of deprivation without just compensation: C/F. Australian Constitution; Peverill v Health Insurance Commission [1991] FCA 505; [1991] 104 ALR 449 and a protection against an arbitrary or procedurally unfair manner of deprivation. Compare Constitution of the U.S.A., Amendment V and XIV.
7. The statutory denial of reasons attempted by Clause 8A(2) and clause 3(6) for a Ministerial decision is both a deprivation of the "fundamental right" to protection of the Law; and/or protection of property from unjust deprivation.
8. Natural justice would require the giving of reasons in the present context C/F. R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All E.R. 310, Breen v Amalgamated Engineering Union (1971) 2 QB 175; Election Importing Co Pty Ltd v Courtice [1949] 80 CLR at 663; R v Wear Valley District Council; Ex parte Binks, [1985] 2 All ER 699. But see: Osmond v Public Service Board [1986] HCA 7; [1986] 159 CLR 656.
9. Irrespective of whether or not reasons form part of natural justice and upon that basis fall within Article 5(1)(d), the provision of reasons is either: a protection of the law in as much as it is a protection against potential arbitrary decisions; or a protection against an "unjust deprivation", the injustice being the unexplained deprivation. It is submitted that there is no reason to restrict the ambit of the protection accorded by the phrase "protection of the law" to that which is protected by the rules of natural justice. The provision of reasons is undoubtedly a protection against potential arbitrary executive action see Frank's Report at Para 351, see also: Poyser and Mills Arbitration [1964] 2 QB 467 at 477-78. A failure to give reasons is a denial of the protection of the law because it permits of the concealment of errors of law and may or has a tendency to frustrate judicial review: C/F Clerk v Wellington Rent Appeal Board [1975] 2 NZLR 24; T Flexman Ltd v Franklin County Council [1975] 2 NZLR 690 at 698. See also, discussion by Kirby P. in Osmond v Public Service Board [1984] 3 NSWLR at 452-60.
10. The attempted statutory denial by both clause 8A (2) and clause 3(6) of the opportunity to challenge an adverse Ministerial decision is both a deprivation of the "fundamental right" to protection of the Law and protection of property from unjust deprivation.
11. Whatever other protection is encompassed by the phrase "protection of the law" it must at least encompass the right of access to the Courts; to deny access to the courts is beyond the Constitutional competence of the legislature as it would deprive a person of the Constitutional right guaranteed by Article 6 and would be to deprive the Constitution of its role as the "Supreme Law" and make it subject to the laws sought to be enacted.
12. It is contrary to the common law and contrary to public policy to attempt to oust the jurisdiction of the courts, e.g., Lawlor v Union of Post Office Workers (1965) 1 Ch. at 733, Baker v Jones [1954] 1 WLR 1005; In Re Wynn (1952) 1 Ch 271; Lee v Showman's Guild [1952] 2 QB at 354 per Romer L. J.

It is submitted on behalf of the Respondent as follows:

1. The Constitution is the Supreme Law (Article 2) and entitles all persons (Article 5) to the fundamental rights and freedom of the individual ... (d) protection of the law; (j) protection for the privacy of the home and other property and from unjust deprivation of property; (k) equal treatment under the law or administrative action.
2. The fundamental rights are enforceable independent of legal remedy by application to the Supreme Court ... and the Supreme Court has an unfettered jurisdiction to enforce the right .... by any means it considers appropriate (Article 6).
3. Parliament's power to make laws is unfettered save for the laws being for the peace, order and good government of Vanuatu (Article 16). Such a power authorises the utmost discretion of enactment for the attainment of the objects pointed to and a Court will not enquire whether any particular enactment of the Character does in fact promote peace, order or good government of the Country: Riel v the Queen [1885] 10 AC 675. Chenard v Arissol [1949] AC 127. Laws will therefore be valid unless "inconsistent" with a provision of the Constitution.
4. That in considering the operation of a law which is said to be inconsistent with the Constitution an attempt should be made to reconcile the Law with the Constitution any opposition between the two should be resolved by adopting an interpretation of the provision that is fairly open and which would remove that contradiction and maintain the validity of the law: The King v Hickman ex parte: Fox and Clinton [1945] HCA 53; [1945] 70 CLR 598 at 616.
5. In cases of inconsistencies between state legislature (the law) and the Constitution the latter should prevail and the former should to the extent of the inconsistency be invalid, see Mcwaters v Day [1989] HCA 59; [1989] 168 CLR 289 and R v Stephens 102 ALR 42.
6. The Act empowers the Minister to refuse the issue or renewal or at any time to revoke a business licence. He is entitled to refuse to give a reason for the decision which is not to be challenged in any court.
7. There is no inconsistency in respect of the Act and the Constitution. They deal with entirely different subject matters. The Constitution confers no rights concerning Business Licences. No right conferred under the Constitution is taken away or denied by the Act. The Constitution does not prevent a Minister of the Government from refusing or revoking licences nor does it require that reasons be given. The Act leaves open the entitlement of the aggrieved person to enforce the rights conferred pursuant to Article 6.
8. The protection of the law afforded by the Constitution is not affected by the ouster of the court's jurisdiction under the Act . The ouster only applies in circumstances where the law recognises that the conduct giving rise to a decision has been engaged in pursuance to the Act. Then the Courts jurisdiction is excluded only in so far as that decision is sought to be challenged on grounds of administrative law or substantive law by reference to or arising out of the exercise of power under the Act, but that restriction does not affect the entitlement under Article 6 in respect of the rights conferred under Article 5 which is an entirely different subject matter and a different source of judicial power to that ousted under the Act. Access to the Courts under Article 6 ensures that protection of the law is not denied insofar as protectable rights are concerned. It is only such rights that are to be protected. See Attorney General v McCleod (1984) 32 WIR 450; Harrikisson v Attorney General (1979) WIR 348.
9. The law dealing with ouster of jurisdiction clauses, which on their face may appear to be inconsistent with the powers conferred on the courts (by the Constitution) provide that such clauses are not unconstitutional provided:
Hickman's case; David Jones Finance v Commissioner of Taxation [1991] 28 FCR 484. Such ouster clauses do not prevent the courts from intervening in cases of excess of jurisdiction e.g. violation of the principles of natural justice. see Amisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147.
10. A business licence is not property within Article 5 (1) (j) of the Constitution. It does not satisfy the test for proprietary interest - see National Provincial Bank [1965] UKHL 1; [1965] AC 1175 at 1247-48; R v Toohey ex parte: Meleling [1982] HCA 69; [1983] 158 CLR 327 at 342-43; Torsion Products v Director of Industries (1968) AIR 374; Amar Singh v Custodian of Evacuee Property (1957) AIR 599; Re Weinstein and Minister of Education (1985) 230 D.C.R. (4th) 609. Conversely, it is submitted that to the extent that a licence could be held to be property its character, nature and extent is that determined by the statute creating the licence see Torsion Products v Directors of Industries (1969) AIR 374. It is akin to a right based on "discretionary justice" see National Provincial Bank Ltd v Ainsworth [1965] UKHL 1; [1965] AC 1175 at 1249. Neither the Constitution nor the Act creates a duty in the Government to issue a licence nor a right in any person to be licensed - Gamacho & Sons Ltd v Collector of Customs (1971) 18 WIR 159 at 165-6.
For an act to constitute "unjust deprivation" he must have been deprived of property [ultra vires] the Act, or to show that there has been a failure to observe the rules of natural justice - Re Kempthorne Prosser and Co [1964] NZLR 49 at 51; State of West Bengal v Subodh Gopal [1954] AIR 92 at 92. It is accepted for the Respondent that any unjust deprivation is challengeable under Article 6 if it infringes a right under Article 5. Kalo v Public Service Commission [1987] SPLR 405; Attorney General for Hong Kong v NG Yuen Shiu [1983] 2 AC 629. C/F Banks v Transport Regulation Board and McInnes v Onslow Fane.
So long as a refusal to grant or renew, or the revocation of a licence is not ultra vires or does not breach the Anisminic principles and does not otherwise offend against Article 5 of the Constitution any such refusal will be consistent with the terms of the Statute and the Constitution.
11. The obligation to provide reasons is not an incident of procedural fairness or natural justice and that a failure to give reasons does not render, of itself, an exercise of power ultra vires or constitute a breach of any fundamental rights contained in Article 5 of the Constitution.
12. "Unequal treatment" the provision does not constitute unequal treatment. The legislation is of general application creating a regime which is applicable to all business licences. The protection afforded against unequal treatment does not arise in respect of the Act. See Smith, Kline & French Laboratories v Attorney General of Canada (1986) 34 DLR (4th) 584 at 589, and is not in breach of the obligation created by Article 5 (k) of the constitution See NHK Township of Verulem (1987) 4 DLR 306 at 314. The right to equality of treatment does not extend to claims which are purely economic or commercial in their nature see Institute of Edible Oil Foods v Ontario (1987) 47 DLR (4th) 368 at 380.
13. Similar submissions are made regarding the Broadcasting and Television Act 1992. The final submissions made on behalf of the respondents is with regards to the Land Acquisition Act, put in short as follows.
14. That it is for parliament to determine what is or is not in the public interest Mootoo v Attorney General [1978] 30 WIR 411 at p 416.
15. There is no conflict between the Public Utility Act CAP 86 and the present Land Acquisition Bill as they provide for different purposes.
16. There is no unjust deprivation contemplated by the terms of the Bill.
17. In any event, to the extent if any (which is not admitted) that the Bill and the Act could be said to be in conflict with each other, the later enactment impliedly repeals the inconsistency.

At the time of independence, in July 1980, Vanuatu had a joint Court system. On the one hand an English judge, on the other a French Judge. Was it by coincidence or by choice that the newly born nation, out of the two, chose the English judge and that, therefore, for the last 12 years, the laws as applied in Vanuatu were influenced by the Common law system? The answer is a simple one if one considers that the region, the other Melanesian nations of the Pacific, (bar one notable exception) the Court of Appeal under who's aegis Vanuatu falls, are all based on the Common law system and the rule of law.

Why, therefore, would Vanuatu have chosen otherwise than it did! It is clear, that the legal system of this nation is intrinsically linked to the system of those nations of the world as apply the Common Law system and the rule of law. Counted amongst those are virtually all the nations of the Commonwealth of nations, of which Vanuatu is a proud adherent.

In real terms it means that, although the Courts of Vanuatu are not bound by any decisions of any of those courts, it can, nevertheless, allow itself to be guided and influenced by decisions of Courts such as those of the U.K, Canada, Australia, New Zealand, India, Papua New Guinea and others, within the Common law system. It can thus enrich its own jurisprudence by putting to good use and effect, those rules of law which have proved wise and successful and to have been well tested in other jurisdictions.

This in my judgment is the correct interpretation to be given to the words "substantial justice" within Article 47(1) where it refers to the application by the judiciary of "substantial justice" in the absence of any particular rule of law. The system of justice as applied in Vanuatu, undeniably and unrevocably forms part of that system of justice which derives its authority from the common law and the rule of law. Put another way, it is clear that the Constitution of Vanuatu is a Constitution on the Westminster model and ought to be interpreted in the same manner in which such Constitutions are generally interpreted.

Therefore the Supreme Court of Vanuatu, like the English Supreme Court, is a court subject to the common law. Such courts have an inherent common law power to ensure that inferior tribunals with limited jurisdictions keep within those limits. Thus their power to issue the prerogative writs is inherent. But, unlike the English Court, the powers of the Vanuatu Supreme Court are also derived from the Constitution. Under Article 49(1), the Supreme Court has unlimited jurisdiction to hear and determine any proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law. Article 2 proclaims that the Constitution is the Supreme law of the Republic of Vanuatu. Article 16(4) confers on the Supreme Court the additional power to review Bills referred to it for its opinion by the President, if he considers such Bills to be inconsistent with a provision of the constitution. "The Bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution".

Article 5(1) guarantees certain fundamental rights and freedoms of the individual; "The Republic of Vanuatu recognises, that, ..... all persons are entitled to [certain] fundamental rights and freedom of the individual to .... 5(1)(d) Protection of the law; 5(1)(j) protection from unjust deprivation of property; and 5(1)(k) equal treatment under the law or administrative action. There is no distinction to be made under the constitution in the manner in which one is to be treated, whether it is under the law or administrative action and no artificial distinction can be drawn between the law and administrative action before the Court. Article 5(2) defines, though not exhaustively, what the protection of the law shall include. Article 6(1) defines how those fundamental rights may be enforced thus:

"Anyone who considers that any of the rights guaranteed to him by the constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right."

As can be seen, the application for enforcement of fundamental rights are co-existent, parallel and independent, of any other legal remedy. Under Article 6(2) the Supreme Court has unfettered jurisdiction to enforce the right as it considers appropriate.

Under Article 53(1) anyone who considers that a provision of the constitution has been infringed in relation to him (quite independently of those fundamental rights under Article 5) may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress. Again, under Article 53(2) the Supreme Court has unfettered jurisdiction to enforce the provision of the Constitution.

As can be seen, the unlimited jurisdiction of the Supreme Court under Article 49 (1) are further enhanced by the Constitution itself in three respects:

1. Under Article 6(1) to enforce breaches of fundamental rights;
2. Under Article 16 (4) to give its opinion as to the Constitutionality of Bills referred to it by the President [and the Bill cannot be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution] and finally;
3. To provide redress under Article 53(1) to anyone who considers that a provision of the Constitution has been infringed in relation to him. This refers clearly to any "other" rights under the Constitution besides the "fundamental rights" protected under Article 5.

It is plain therefore that the Constitution being the Supreme law of Vanuatu (Article 2) inter alia guarantees to all persons (subject to certain public interests) the fundamental rights to:

i) 5(1)(d) the protection of the law;
ii) 5(1)(j) protection from ... unjust deprivation of property;
iii) 5(1)(k) equal treatment under the law or administrative action.

These rights under the Constitution of Vanuatu are enforceable independently of any other legal remedies (Article 6(1)) . Thus the Constitution foresees the Co-existence of the two rights side by side and independent of the other; on the one hand the Constitutional remedy and on the other "any other legal remedy". Indeed, one of the fundamental rights guaranteed by the constitution is equal treatment under the law or administrative action (Article 5(1)(k)).

Parliament derives its powers to make laws from Article 16(1) of the Constitution:

Article 16(1) "May make laws for the peace, order and good Government of Vanuatu".

Laws are made by passing bills (Article 16(2)) . When a bill is passed by Parliament it shall be presented to the President of the Republic who shall assent to it within 2 weeks (Article 16(3)) save that "if the President considers the bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court (note the President has no discretion if he considers a bill inconsistent with the constitution) for its opinion". The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution. Therefore in those circumstances it cannot become a law. In that respect, the Constitution of Vanuatu is unique. The question therefore of prime consideration, for the Court's determination must be, what are the limits, if any, imposed by this Constitution on Parliament to make laws?

It is submitted on behalf of the respondent, that "Parliament's power to make laws is unfettered save for the laws being for the peace, order and good Government of Vanuatu (Article 16). Such a power authorises the utmost discretion of enactment for the attainment of the object pointed to and a Court will not inquire whether any particular enactment of the character does in fact promote the peace, order or good government of the country. They rely for this proposition on Riel v The Queen [1885] 10 AC 675 and Chenard v Arissol [1949] AC 127. And they go on to contend that Laws (of Vanuatu) will therefore be valid unless "inconsistent" with a provision of the Constitution". If this submission is correct, then Article 16(4) is devoid of any meaning and has no place in this Constitution because it presupposes that the Act is valid unless "inconsistent" whereas Article 16(4) stipulates that "the Bill shall not be promulgated if the Supreme Court considers it inconsistent ...." It is worth pausing to consider the authorities relied upon for the respondent's contentions. In Reil v The Queen (Supra) the point to be decided by the Privy Council fell upon the contention that the Parliament of the Dominion of Canada could not have enacted the Canadian Act 43 Vict C.25 which it was contended was ultra vires the Dominion Parliament to enact. The Judgment was given by Lord Halsbury L.C. in these terms:

"The first point is that the Act itself under which the petitioner was tried was ultra vires the Dominion Parliament to enact. That Parliament derived its authority for the passing of that statute from the imperial statute, 34 8. 35 Vict. c28, which enacted that the Parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any province. It is not denied that the place in question was one in respect of which the Parliament of Canada was authorised to make such provision but it appears to be suggested that any provision differing from the provisions which in this Country (England) have been made for administration, peace, order and good government cannot, as matters of law, be provisions for peace, order and good government in the territories to which the statute relates, and further that, if a court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion Parliament to enact. Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorise the utmost discretion of enactment for the attainment of the object pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country (England) have been authorised in Her Majesty's Indian empire".

The second case referred to in support of the respondent' s submission, was Chenard v Arissol [1949] AC 127, another decision of the Privy Council, turning upon the power of the Seychelles' legislative Council to make laws . The Judgment of their Lordships was delivered by Lord Reid, who stated the facts and then continued:

"The power of the Governor and legislative council of Seychelles to make laws flows from letters Patent of August 31 of 1903, by virtue of which the Seychelles Islands were erected into a separate colony. Clause 8 of the letters Patent provides: 'the Governor, by and with the advice and consent of the said Legislative Council may make ordinances for the peace, order and good government of the Colony, subject nevertheless to such rules as we have already made or may hereafter make for their guidance by any instruction under our sign Manual and Signet'. A power to make ordinances for the peace order and good government of a colony does not authorise alteration of the Constitution or powers of the Colonial Legislature, but it does authorise the enactment of rights etc"

then his Lordship repeats what was said in Riel v the Queen (supra) about "the utmost discretion" and goes on to say:

"and the Court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government of the Colony".

Clearly what both Lord Halsbury and Lord Reid were at pains to point out was that subject to the Legislature's powers to make laws that are intra vires their enabling legislation, the words of the statute to make laws for "the peace order or good government" of a country, (the words of the statute)" are apt to "authorise the utmost discretion of enactment for the attainment of the object pointed to" and that Chenard v Arissol (supra) is authority for the proposition that:

(i) such words do not authorise alteration of "the Constitution"; and
(ii) "that the Court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government".

Here it must be emphasised that Article 16(1) permitting Parliament to make laws for the peace, order and good government of Vanuatu, is subordinate to Article 16(4) that such laws can only be promulgated if the Supreme Court does not consider it inconsistent with a provision of the Constitution, once the matter is referred to the Supreme Court for its opinion under Article 16(4).

In the course of interpreting the Constitutionality of these present Bills, there is no question of entering into an inquiry as to whether or not the proposed Acts are in fact "for the peace order and good government of Vanuatu," that must be a question in the sole discretion of Parliament. The sole question for determination of the Court is does the proposed Act (the Bills) or any parts thereof offend the Constitution, and if so, in respect of which Article and to what extent.

The principles as developed under the Australian Constitutional law with regards to inconsistencies and consequential invalidity are unhelpful with regards to the Vanuatu Constitution, which must, in the words of Lord Wilberforce, as submitted on behalf of the Petitioner, be construed "as Sui Generis". In Minister of Home Affairs v Fisher [1979] UKPC 21; (1980) AC 319 at 329 the Privy Council stated that the way to treat a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but:

"as Sui Generis calling for principles of interpretation of its own suitable to its character ..... without necessary acceptance of all the presumptions that are relevant to legislation of private law".

This proposition was followed and approved by a differently Constituted Privy Council in Ong Ah Chuan v Public Prosecutor (1980) 3 WLR 855 at 864; Lord Diplock delivering the judgment of the Board (adopting Lord Wilberforce's judgment (supra)) went on to say:

"their Lordship would give to part IV of the Constitution of the 'Republic of Singapore' a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give individuals the full measure of the [Fundamental Liberties] referred to" - (P 328).

Again at p865 his Lordship goes on to say:

"In a Constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to "Law" in such context as 'in accordance with law', 'equality before the law', 'protection of the law' and the like, in their Lordships view, refer to a system of law which incorporates these fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation ..... at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the 'law' to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords 'protection' for the individual in the enjoyment of his fundamental liberties."

Therefore, the third contention on behalf of the respondent, namely, that with regards to inconsistencies and the manner in which it is interpreted under the Australian Constitution has no relevance here and is peculiar to the Australian Constitution. Otherwise one would be doing no more than paying lip service to Article 16(4) of the Vanuatu Constitution which, as I have already indicated appears unique in its genre.

The second submission on behalf of the petitioner namely (2) that the fundamental rights "should be construed 'with all the generality which the words used admit" gains ground even further as a form of construction of Constitutional interpretation. As we have seen (supra) with utmost respect to Lords Wilberforce and Diplock, not only does such a Construction of a Westminster type Constitution lend itself to this manner of interpretation within the English common law system, but it would appear to find support in other jurisdictions, such as Australia; see the Queen v The Public Vehicle Licensing Appeal Tribunal of the State of Tasmania [1964] HCA 15; (1965) 113 CLR 207 at 225; where a strongly constituted High Court composed of Dixon CJ and five other High Court Judges adopted very much the same approach in their (unanimous) interpretation of Section 51(xxxvii) of the Commonwealth Constitution in these terms:

"A great deal of discussion has taken place as to the true meaning and operation of par (xxxvii) and of course the purported reference by the Parliament of a State to the Parliament of the Commonwealth, as a matter of something which could not fall within the description of the paragraph, however it might operate as a State Law, could not operate to increase the powers of the Federal Parliament. The simplest approach however, to the problem is simply to read the paragraph and to apply it without making implications or imposing limitations which are not found in the express words. We must remember that it is part of the Constitution and go back to the general counsel to remember that it is a Constitution we are construing and it should be construed with all the generality which the words used admit."

This submission as to the manner of interpreting a Constitution, more particularly this Constitution, is in my opinion the correct one and the one I propose to adopt in interpreting the fundamental rights under Article 5(1).

In their third submission on behalf of the Petitioner it is contended that "Protection of the Law" within the meaning of Article 5(1)(d) is both a guarantee of 'procedural fairness' and or 'fundamental rights". That is a submission with which I am entirely in agreement, and which finds considerable support, as we have seen from the Privy Council in their judgments delivered by Lord Wilberforce in Minister of Home Affairs v Fisher (supra) and by Lord Diplock in Ong Ah Chuan v Public Prosecutor (supra). In the words of Lord Diplock at p865, to which I have made extensive reference above, but which bears repeating " refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law .... that was in operation at the commencement of the Constitution". And it is well to bear in mind yet again, that the Constitution of Vanuatu came into effect as relatively recently as the 30th July 1980, at a time when these fundamental rules of "natural justice" were well and truly anchored into the common law system of this country, as at that time it was part of the British Dominion. In Part of their further submissions (8) on behalf of the Petitioner, it is submitted that: "there is no reason to restrict the ambit of the protection accorded by the phrase 'protection of the law' to that which is protected by the rules of natural justice." Again that is a contention I find no difficulty in adopting and for which indeed, I find considerable support in the judgment of the Privy Council as delivered by Lord Diplock in Ong Ah Chuan v Public Prosecutor (supra) in those words at p 865, when he makes references to 'protection of the law' etc ... "In their Lordships' view incorporates those fundamental rules of natural justice".

One can see immediately that his Lordship there refers to the rules of natural justice as being "incorporated" in such phrases as "protection of the law" and their Lordships do not restrict the meaning of the phrase to that which is protected by the rules of natural justice.

It is further contended (10) on behalf of the petitioner that "whatever other protection is encompassed by the phrase "protection of the law" it must at least encompass the right of access to the Court ..... that the Constitution being the "Supreme Law" (Article 2) and it being an express requirement of Article 47(1) that the judiciary's function be "to resolve proceeding according to law". To deny access to the Courts is beyond the Constitutional competence of the legislature and to deny access to (the) Court would deprive a person of the Constitutional right guaranteed by Article 6 and would be to deprive the Constitution of its role as the "Supreme Law" and make it subject to the laws sought to be enacted". Again, I find no difficulty in adopting this approach, for in the natural Construction of Article 2, Article 16 and again Article 47 of the Constitution, it is plain that any "other" law which parliament can enact is subordinate to the Constitution as the Supreme Law of Vanuatu.

It is contended (5) for the respondent "that with regards to the Bill [Petition 104] there is no inconsistency with respect to the Constitution, as they deal with entirely different subject matters. The Constitution confers no rights concerning Business Licences". That at first flush could appear to be correct, save for the obvious, that it is the ouster clause in the Bill that offends the Constitution and nothing else. The Constitution of Vanuatu is such that it enjoins the court to resolve proceedings according to law and since the Supreme Law is the Constitution itself (Article 2) and since that law grants in two respects unfettered access to the Courts irrespective of any other legal remedy (Articles 6 and 53), it is difficult, if not impossible, to resolve that issue without firmly coming to the conclusion that the proper approach to the interpretation of the Constitution of Vanuatu as a whole is, that it does not tolerate the ouster of the Court's jurisdiction in either legal or administrative matters. Article 5(1)(k) foresees "equal treatment under the law or administrative action". It is impossible to imagine how else the protection of the law (Article 5(1)(d)) and equal treatment under the law or administrative action (Article 5(1)(k)) can be guaranteed under this Constitution save by reference in an appropriate case to the Courts. That is a far cry from saying that the constitution should be used as a "trip wire" in the words of Mr Merkel for the respondent. At (6) on behalf of the respondent it is submitted that:

"The protection of the law afforded by the Constitution is not affected by the ouster of the Courts jurisdiction under the Act. The ouster only applies in circumstances where the law recognises that the conduct giving rise to a decision has been engaged in pursuance to the Act etc".

Save for the submission that the Act is subject to the restraint of the rule enunciated in the King v Hickman Ex parte Fox and Clinton [1945] HCA 53; [1945] 70 CLR 598 at 616 this contention, drawn to its logical conclusion, could be interpreted as meaning that it does not matter how outrageous or capricious the behaviour, so long as it is intra vires the Act, it cannot be challenged on any grounds of administrative law or substantive law. So much for the "fundamental rules of natural justice as are plainly incorporated" within the Constitution under Article 5(1)(d) or 5(1)(k) per Lord Diplock in Ong Ah Chuan v Public Prosecutor (supra).

It is sought, on behalf of the respondent, to rely on two cases as being consistent with the submission made and they are worth considering. The first is Harrikissoon v Attorney General [1979] 3 WLR 62. These were proceedings in which the appellant claimed a declaration that human rights guaranteed to him under the Constitution of Trinidad and Tobago had been contravened and was seeking redress from the High Court. The opinion of the Board was again delivered by Lord Diplock in these terms:

"The notion that when ever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the Contravention of some human right or fundamental freedom guaranteed to individuals by ... the Constitution is fallacious. The right to apply to the High Court under .... the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application in the High Court under [the Constitution], the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not in itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no Contravention of human right or fundamental freedom,"

Later in his judgment Lord Diplock goes on to say what if anything was the "protection of the law" that applied to the appellant at p 352-353 in these terms:

"the protection that the law afforded him was, in the first instance, to give notice to the permanent secretary of his desire to make representations to the commission for a review of the order."

The second case referred to on the same principle is Attorney General v McLeod (1984) WIR 451 at 458 the opinion of the Privy Council again being delivered by Lord Diplock, in these terms:

"The Judicial Committee has previously had occasion to draw attention to the necessity of vigilance on the part of the Supreme Court to prevent misuse by litigants of the important safeguard of the rights and freedoms enshrined in the [Constitution] that is provided by the right to apply to the High Court for redress."

His Lordship then refers to the passage referred to above in the case of Harrikissoon v Attorney General(supra) and emphasises it by referring to the case of Chokolingo v Attorney General (1980) page 354, ante[1981] 1 All ER 244 another decision of the Privy Council in these terms:

"The Judicial Committee .... held that the procedure for redress under [the Constitution of Trinidad and Tobago] was not to be used as a means of collateral attack etc ...."

Of course, in none of these cases did their Lordships have to deal with a Constitution in the terms of Article 6 of the Vanuatu Constitution, which specifically preserves the duality of redress. It serves, in my respectful opinion, to emphasise the dangers of applying the interpretation of one Constitution to another, unless they be in identical terms. It is plain that the Constitution of Trinidad and Tobago and that of Vanuatu differ, at least, in this important respect. But where those cases assist this Court considerably, is in formulating this approach to Constitutional applications; namely, that great caution will be exercised by the Supreme Court of Vanuatu to ensure that the safeguards guaranteed under the Constitution are not abused and that its value is not diminished by applications to the Supreme Court that are "Frivolous, vexatious or an abuse of the process of the Court" to borrow a phrase used by Lord Diplock in Harrikissoon v Attorney General (supra). This can be done simply and effectively as already provided for under section 218 (4) and (5) of the Criminal Procedure Code [CAP 136] which states as follows:

"218 (4) Any party who is served with a copy of the Petition in pursuance of subsection (3) may without prejudice to any other legal remedy available to such a party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.
(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and enquire into it. It shall summon the party or parties whose actions are complained of to attend the hearing."

Therefore the fear that the Constitution can be abused and its protection diminished by vexatious or frivolous applications, or as put "become a trip wire" can be put to rest. The Court will not hesitate to declare such applications to be an abuse of the process of the Court, should the case arise, and to dismiss such applications with the ensuing orders as to costs.

Put another way, it is contended for the respondent (7) that the law dealing with ouster of jurisdiction clauses which appear to be on their face inconsistent with the powers conferred on the Courts (by the Constitution) if interpreted in the Australian manner are not unconstitutional provided they pass the test enunciated in Hickman's case (supra) put in short, "bona fide, intra vires, jurisdiction, error on the face, and incurable error as to interpretation". I would have had little difficulty in adopting such an approach, had it not been for Article 16(4). It is submitted by Mr Merkel on behalf of the respondent, that there should be no different approach to the interpretation of a Bill as there would be to the interpretation of an Act. If that is correct, then Article 16(4) would be meaningless and I would not be applying the Supreme Law of Vanuatu (Article 2) namely the Constitution. I am not provided with any authority as to how Article 16(4) should be interpreted or should I say, as to how a Bill should be interpreted within Article 16(4). As far as I know, no other jurisdiction within the Common Law system is called upon to interpret the Constitutionality of a Bill as opposed to that of an Act. Might this be the "French influence" within the Constitution of Vanuatu.? For if my understanding is correct, the French have a "Conseil Constitutionel" composed of eminent men and jurists whose function it is to interpret the constitutionality of Bills before Parliament, and its ruling, as indeed the Supreme Court's here, is final.

In pursuance of the contention for the respondent the Court is further referred to the judgment of Morling J (a highly respected member of our Supreme Court as one of its appellate judges) in the case of David Jones Finance v Commissioner of Taxation 28 FCR 484 at p495 following and applying the decision in Hickman's case in these terms:

"Similar views were expressed by Dawson J (at 303-306), with whom Toohey J agreed . Dawson J also reiterated (at 306) that no private clause such as s.60 could affect the jurisdiction conferred on the High Court by s.75(v) of the Constitution. Although their rationale was not made explicit in the judgments, the Hickman provisos can no doubt be regarded as reflecting presumptions to be applied to the Construction of private provisions on the basis that the legislature would not have intended to authorise bad faith decisions or decisions incapable of reference to the subject matter of the legislation or the powers conferred by it.

In summary therefore, s 75(v) of the Constitution confers a jurisdiction upon the High Court which cannot be limited or qualified by any statute. That jurisdiction authorises the Court to Control excesses of power or failure of duty by officers of the Commonwealth. It is ambulatory to the extent that its exercise will depend upon the Constitutional and statutory boundaries of the power or duty in question. To determine those boundaries in a given case may involve questions of the Construction of the relevant Legislation. And that process may require that account be taken of any privative provisions able to be construed as extending the powers or contracting the duties."

I would have no difficulty in adopting this approach as I said before, had it not been for Article 16(4). I must interpret the Bill before it becomes an "ACT".

It is submitted (11) on behalf of the petitioner as follows:

"That it is contrary to the common law and contrary to public policy to attempt to oust the jurisdiction of the Courts."

They rely for this proposition on Lawlor v Union of Post Office Workers [1965] 1 Ch at 733; Baker v Jones [1954] 1 WLR 1005; In re Wynn [1952] 1 Ch 271. I need not consider that submission further, for here the common law is superseded by the Constitution. The Constitution itself foresees the answer in Article 5(1)(d) "protection of the law" and 5(1)(k) "equal treatment under the law or administrative action. " It is submitted on behalf of the respondent at (7) and (8) that "the Constitution does not prevent a Minister of the government from refusing or revoking licences". The Bill if it becomes law, will create a duty on the Minister to exercise a discretion in granting or refusing licences. It is in the exercise of that discretion created by Parliament over which the courts cannot be prevented from exercising review under Article 5(1) of the Constitution, since both Article 5(1)(j) and (k) foresee a right of access to the courts to ensure the proper exercise of the discretion. To deny that right is unconstitutional and that is exactly what section 3 (6) of Petition 103 and section 8A(2) of Petition 104 in part seek to do in refusing access to the courts in challenging the legality of any refusal. I am not assisted in this context by the approach of the Privy Council in the cases of Attorney General v McLleod [1984] 1 WLR 522 or Harrikissoon v Attorney General [1979] 3 WLR 62 for in both cases the Board was dealing with the interpretation of the Constitution of Trinidad and Tobago, which unlike the Vanuatu Constitution does not have Article 16(4) nor does it specifically safeguard the duality of approach conferred by Article 6(1) of the Vanuatu Constitution . If that approach is correct with regards to the Vanuatu Constitution then again, there would be no need for Article 16(4) which would become meaningless. The declaration of "invalidity" which becomes binding on Parliament itself, can be sought under the Constitution prior to any Bill becoming law. The arguments in the above two cases are more apt to a situation where the President should fail to refer a Bill to the court for its interpretation, either because he has not seen the defect or for whatever other reason. As far as the approach to the rules of natural justice is concerned, this court would have little difficulty in adopting and following the principles enunciated by their Lordship in Anisminic. But that is not what is here in contemplation. The old saying of "which comes first the chicken or the egg" comes to mind. Here I have to give effect not only to Article 16(4) but also to Articles 5 and 6 of the Constitution of Vanuatu. Were I merely deciding the Courts approach to an ouster of jurisdiction in the absence of Article 16 (4), I would have had no hesitation but to adopt the Anisminic approach and in particular the approach adopted by Lords Reid and Pearce which go further than the High Court of Australia in the Hickman's case. I do not agree with Mr Merkel's submission that I should adopt the same mode of interpretation here as I would to the interpretation of an Act of Parliament, if I were to do so, Article 16 (4) would be devoid of any meaning whatsoever.

The above submission is repeated in a different way on behalf of both the Petitioner and the Respondent in their respective submissions (4) and (10). On the one hand it is claimed that a licence is property within the general meaning of 5(1)(j), on the other it is submitted that it is not and that therefore it is not protected by the Constitution. Conversely, it is submitted for the Respondent that to the extent that a licence could be held to be "property" its character, nature and extent is determined by the statute creating it. Neither the Act nor the Constitution creates a duty on the Government to issue a licence nor a right in any person to be licensed. Unjust deprivation means deprived [ultra vires] the Act or alternatively in breach of the rules of Natural justice. Unless one or the other applies or it offends against Article 5 of the Constitution, it will be consistent with both the statute and the Constitution.

The questions to be answered are as follows:-

1. Does the Constitution create any obligations on the Government to issue a licence or a right in any person to be licensed? If not;
2. What is it that empowers the Government to grant a licence?
3. Is there anything within that power or under the Constitution once the power is created which creates an obligation on the Government to grant a licence or a right in any person to be granted a licence?
4. Once a licence has been granted to a person is it "property" the removal of which is protected by the Constitution.
5. What if any protection is afforded by the Constitution to a person who applies for a regrant or renewal of such a licence and what obligation if any is there under the Constitution on the Government to regrant or renew the licence?

In America there is authority for the proposition that the right to earn a livelihood by following the ordinary occupation of life is protected by the Constitution and that it is a fundamental right, see Terrace v Thompson 263 U.S 192 and Dent v West Virginia [1889] USSC 11; 129 US 114.

The Constitution of Vanuatu provides certain fundamental duties that every person has to himself, his descendants and to others under Article 7 as follows:

"Article 7 Every person has the following fundamental duties to himself and his descendants and to others
(a) to respect and to act in the spirit of the Constitution.
(e) To work according to his talents in socially useful employment and if necessary, to create for himself legitimate opportunities for such employment;"

Those fundamental duties are not justiciable under Article 8 which provides -

"Article 8 Except as provided by law, the fundamental duties are non justiciable. Nevertheless, it is the duty of all public authorities to encourage compliance with them so far as lies within their respective powers."

It can be seen from the above that there is a fundamental duty in the individual to create opportunities for himself and to work. Failure by the individual to do so is, nevertheless, not justiciable under Article 8, but Article 8 creates an obligation on "all public authorities" to encourage compliance with Article 7. It is therefore the fundamental duty of the Government to ensure that the individual is encouraged to comply with his (the individual's) fundamental duties. That duty upon the "authorities" or the "Government" includes the duty to provide and to create for the individual socially useful employment according to his talents and to create the opportunities for such employment. It would therefore be correct to say that the right to work and earn a livelihood is preserved under the Constitution. It is not a right which is justiciable under Article 6 since it is not a right specifically preserved under Article 5, but it is nevertheless a fundamental duty which is placed upon the "authorities" and a government, who fails to provide or create the opportunity for work or which fails to ensure to the individual that work is provided to him "according to his talents," fails in its constitutional duties under Article 8. Such a duty may not be enforceable under Article 6, but it most certainly is under Article 53:

"53 (1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.
(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."

So therefore, the right to earn a livelihood by following the ordinary occupations of life and indeed to work according to individual talents and qualifications is a right protected by the Constitution of Vanuatu. It may not fall within Chapter 2, namely the Fundamental Rights, but it is nevertheless protected by the Constitution within Articles 7 and 8. The fundamental duties are not justiciable against the individual, but the duties of the authorities or the Government under Article 8 are enforceable under Article 53.

But it must be recognised that lack of a proper frame work within which the Government's duty to encourage compliance with the fundamental duties to operate, would lead to chaos and public disorder. It is therefore the absolute and unquestionable right of Parliament to "make laws for the peace, order and good government of Vanuatu " (Article 16(1)). As we have seen, it is not for the Courts to determine what is a law for the "Peace, order and good government". The Courts' duty stops at enforcing what is the Constitutional rights of the individual.

It is submitted on behalf of the Respondent that the Constitution does not create a duty in Government to issue a licence nor a right in any person to be licensed. With that broad statement, I entirely agree. The duty of the Government is to make laws. In the making of such laws it cannot remove from the individual a right conferred by the Constitution and protected by it. It can merely provide the framework within which such a right can operate. Therefore, the passing of a Business Licence Act in order to control and bring order within the community is not unconstitutional, quite the contrary, it is the prerogative of the Government under Article 16(1). If the Act itself does not create a right in any person to be licensed, then there is no such right. The obligation under the Constitution which nevertheless, must not be infringed is the right of a person "to work according to his talents" or dare I say his qualifications. If licences are to be provided, there is therefore a Constitutional duty to ensure that no one is deprived of the right to apply for such a licence if he be properly qualified to hold such a licence. So, therefore, although the Constitution does not create an obligation in the Government to issue a licence or a right in any person to a licence, the Constitution recognises the right of the individual to work according to his ability. When an individual applies for such a licence, there would therefore be a duty upon the authority to investigate the application and not to act capriciously or unfairly in refusing the issue of such a licence as it may well deprive the individual of the right to work according to his talents, which is preserved under the Constitution. Put another way, it is a civil right preserved for the individual under the Constitution. That civil right must not and cannot be denied him unfairly or capriciously.

I am greatly assisted by the opinion expressed by Lord Denning in Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 190:

"It is now well settled that a Statutory Body, which is entrusted by statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still it must act fairly. It must in a proper case give a party a chance to be heard. The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the Statutory Body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, the decision cannot stand. No matter that the Statutory Body may have acted in good faith, nevertheless the decision will be set aside. That is established by Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 which is a landmark in modern administrative law. Does all this apply also to a domestic body? I think it does ...... They can make or mar a man by their decisions. Not only by expelling him from membership, but also by refusing to admit him as a member, or, it may be, by a refusal to grant a licence or to give their approval. Often their rules are framed so as to give them a discretion. They then claim it is an 'unfettered' discretion with which the Court have no rights to interfere. They go too far. They claim too much ...... They are not above the law, but subject to it ..... If the rules set up a domestic body and give it a discretion, it is to be implied that that body must exercise its discretion fairly. Even though its functions are not judicial or quasi-judicial, but only administrative, still it must act fairly. Should it not do so the Courts can review its decision, just as it can review the decision of a statutory body.

Then comes the problem: ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard, no explanation need be given. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. The giving of reasons is one of the fundamentals of good administration."

AC 997 which establishes the principle that if a statutory body's decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. Its decision is never unfettered but must be exercised according to law. In that case the dairy farmers had no right to have their complaint referred to a committee of investigation, but they had a legitimate expectation that it would be. The House made it clear that if the Minister rejected their request without reason, the Court might infer that he had no good reason; and, that if he gave a bad reason, it might vitiate his decision.

A man's right to work is also recognised by the common law and the Courts. One case in point is Edwards v S.O.G.A.T. (1971) 1 Ch 354 at p 376 per Lord Denning:

"I do not think this trade union, or any other trade union, can give itself by its rules an unfettered discretion to expel a man or to withdraw his membership. The reason lies in the man's right to work this is now fully recognised by law. If his union card is withdrawn, he has to leave his employment. He is deprived of his livelihood. The Courts of this Country will not allow so great a power to be exercised arbitrarily or capriciously or with unfair discrimination, neither in the making of rules, nor in the enforcement of them. The law has means at its disposal ...... If the union should assume to make a rule which destroys that right or puts it in jeopardy or is a gratuitous and oppressive interference with it, then the union exceeds its powers. The rule is ultra vires and invalid."

Here, the right to work within one's talents being a right afforded by the Constitution, is not a right which can be denied by statute; what statute can do is exercise proper control over it. So therefore an applicant who has a right to be allowed to work within his capabilities and training, cannot and should not be denied the right so to work, capriciously or unfairly or without any notice or reason in breach of the rules of natural justice. In the words of Lord Denning "the Law has means at its disposal" and would not hesitate to declare any such gratuitous and oppressive interference ultra vires and invalid. When applying for a licence or permit, he has an expectation that that licence shall not be denied him unfairly. The licence once granted may or may not create a proprietary right in the individual which may or may not be protected under Article 5(1)(j). That will depend on the licence and the circumstances. But that will be an additional right which if it becomes property is protected as a fundamental right. Those circumstances not having arisen, I do not see the need or the reason to enter into speculation here as to the future "nature" of such licences. It may well depend on individual licences and circumstances. In any event, once granted, a fortiori, the licence holder has a greater expectation that it shall be renewed or that it shall not unfairly be taken from him, whether it be property or not, for it is what entitles him to practice his trade.

Another striking example can be found in the case of Nagle v Feilden [1966] 1 All ER 689. There a woman sought a declaration and injunctions against the Jockey club to enforce her claim that she ought not to be refused a trainer's licence for horse racing merely because she was a woman. At first instance her claim had been struck out, but the Court of Appeal reversed this decision. Lord Denning M.R. accepted that social clubs could refuse to admit an applicant for membership as they wished; but the jockey club exercised 'a virtual monopoly in an important field of human activity', and what gave the Courts jurisdiction was 'a man's right to work.'

Again in McInnes v Onslow Fane [1978] 3 All ER 211 at 217 Megarry V.C. reviewed the question by stages. His approach in my view and with respect was the correct one.

"First, there is the question of whether the grant or refusal of a licence ..... is subject to any requirement of natural justice or fairness which will be enforced by the Courts"

He then refers to Lord Denning's approach in Nagle v Fielding and proceeds to say:

"I pause there to say that there may well be jurisprudential questions about the true nature of such a 'right'. I have no intention of discussing the wide variety of meanings which the protean word 'right' embraces; but if a person has a right in the strict sense of the word, then some other person or persons must be subject to a duty correlative to that right ........... The 'right to work' can hardly mean that a man has a 'right' to work at whatever employment he chooses, however unsuitable he is for it; and if his 'right' is merely to have some work provided for him that is within his capabilities, then the difficulty of determining who is under the duty to provide it is increased. I observe that Salmon LJ (in Nagle v Fielden) put it rather differently, as being a man's 'right not to be capriciously and unreasonably prevented from earning his living as he wills. Second, where the Court is entitled to intervene, I think it must be considered what type of decision is in question. I do not suggest that there is any clear or exhaustive classification, but I think at least three categories may be discerned. First, there are what may be called forfeiture cases . In these, there is a decision which takes away some existing right or position, as where the member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refuses to grant the applicant the right or position that he seeks .... such as a licence to do certain acts. The third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence holder applies for a renewal of his licence or a person already elected or appointed to some position seeks confirmation from some confirming authority . It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases there is a threat to take something away for some reason; and in such case, the right to an unbiased tribunal, the right to notice of the charges and the rights be heard in answers to the charges ...... are plainly apt .... the legitimate expectation of a renewal of the licence ..... is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable".

Later in his judgment the Vice Chancellor went on to say:-

"As I have said, counsel accepted that the board were under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy. That I think is right and that if the plaintiff showed that any of these requirements had not been complied with, I think the Court would intervene."

The matter with regards to "expectation cases" and "forfeiture cases" could not have been more correctly stated than in that judgment and I therefore adopt it in its entirety for the purpose of my ruling. I have already stated my view with regards to application cases in Vanuatu . Unlike Megarry V.C.'s position in the McInnes case, the situation with "application cases" here is determined by the "right to work according to (his) talents" under the Constitution. If that be so then the position here is more akin to the "expectation" cases enunciated by Megarry V.C. in the McInnes case even in the event of an application. I therefore agree with the submission for the Respondent that so long as a refusal to grant or renew or the revocation of a licence is not ultra vires or does not breach the Anisminic principles and does not offend against the Constitution any such refusal will be consistent with the terms of the statute and the Constitution.

It is quite clear that the principles of natural justice have been held to apply to both legal and administrative proceedings and are part and parcel of the protection of the law or as put on behalf of the Petitioner: 'Protection of the Law' within the meaning of Article 5(1)(d) is both a guarantee of procedural fairness and or fundamental rights. In Boulekone v Timakata, civil case 90 of 1986 it was held by the full Supreme Court of the Republic of Vanuatu in a case presented under Article 6(1) of the Constitution as follows:

"Fundamental rights are set out in Article 5(1) which includes under paragraph (d) 'protection of the law' Article 5(2) describes what is meant by 'Protection of the law'. Without repeating it in detail one can say that it specifies the essential requirements of a fair hearing by anyone facing an allegation, that is to say, the principles of natural justice as known and understood in the free and democratic world will be applied by the tribunal considering the allegation. All tribunals in Vanuatu are accordingly bound by the rules of natural justice whether they be administrative in function or purely judicial".

In another case, Kalo v The Public Service Commission [1987] SPLR 405 [reported as C.A. 3/87] in a case where a public servant, having been found guilty of two charges of having disclosed confidential Government information in breach of specific instructions and in violation of the Public Service Act, appealed from a decision of the public service disciplinary Board to the Public Service Commission on the basis inter alia that a denial of the right to be heard on appeal was unlawful and unconstitutional it was held allowing the appeal at p.411 as follows:

"When considering (a) to (h) of Article 5(2) of the Constitution, it is my opinion that (a) to (e) can refer to either a criminal or civil matter ....."

It is nevertheless submitted on behalf of the Respondent that the obligation to provide reasons is not an incident of procedural fairness or natural justice and does not of itself render a decision ultra vires or constitute a breach of fundamental rights under Article 5. It is submitted conversely on behalf of the Petitioner that the statutory denial of reasons under clause 3(6) and 8A(2) of petitions 103 and 104 is a deprivation of "fundamental rights" to protection of the law and or protection of property from unjust deprivation and that natural justice would require the giving of reasons in the present context.

I accept that it is now established that the requirement for written reasons does not form part of the rules of natural justice or of the common law: see McInnes v Onslow Fane (1978) 3 All ER 211 per Megarry VC or the Public Board of New South Wales v Osmond [1986] HCA 7; [1986] 159 CLR 656 at 662; or indeed as far back as 1891 the House of Lords so held in Sharp v Wakefield [1891] UKLawRpAC 8; [1891] AC 173 at p 183 or again more recently in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 and the majority decision in the Court of Appeal in Breen v Amalgamated Engineering Union [1971] 2 QB 175. It is nevertheless interesting to note a very strong dissenting judgment of Lord Denning at p191. Professor Wade recognises (see Administrative Law 6th Edition 547-550) that it has never been a principle of natural justice that reason be given for decisions, but he goes on to submit at p547:-

"Nevertheless there is a strong case to be made for the giving of reasons as an essential element of administrative justice. The need for it has been sharply exposed by the expanding law of judicial review, now that so many decisions are liable to be quashed or appealed against on grounds of improper purpose, irrelevant considerations and errors of law of various kinds. Unless a citizen can discover the reason behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review ..... It is also a healthy discipline for all who exercise power over others".

I entirely agree with the learned professor. There is now a line of authority which seems to support this reasoning, particularly where a party would be prevented from earning his livelihood as a result of the administrative decision, see R v Wear Valley District Council ex parte Bink [1985] 2 All ER 699 in a case where Lord Taylor, now Chief Justice of England, (then Taylor J) who was hearing an application by a street trader who operated her business from a market place. The business was the applicant's livelihood . She had no written Licence, but since 1982 had operated under an informal arrangement with the local council under which she paid the council £3.50 a night for the right to use the market place. Without giving the applicant any prior notification or reasons, the council gave her notice to quit. Lord Taylor (as he now is) went on to say at p 704:

"As far as livelihood is concerned it is clear on the evidence before me that the applicant does depend on the trading which she has conducted since 1982 for her income and that is a factor of importance in my judgment to be put together with the public law factor to which I have referred in persuading me to hold that the rules of natural justice do apply in this situation. I therefore conclude that it was incumbent on this council, before depriving the applicant of her licence, to give her notice of their intention to revoke it, to give reasons and to give her an opportunity of being heard"

He was there merely echoing Lord Denning's strong dissenting judgment in Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 190:-

"Ought such a body statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances . If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given: but if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. The giving of reasons is one of the fundamentals of good administration."

Here Lord Denning was in turn, it seems, merely reflecting the view of the House of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) AC 997 per Lord Upjohn at P1061 when he said:

"My Lords, I would add this: that without throwing any doubt upon what are well known as the club expulsion cases, where the absence of reasons has not proved fatal to the decision of expulsion by a club committee, a decision of the Minister stands on a quite different basis; he is a public officer charged by parliament with the discharge of a public discretion affecting Her Majesty's subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a Court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly".

This trend seems to have found root in the recent thinking of the courts in the United Kingdom. A case in point in the R v Civil Service Board, ex parte Cunningham [1991] 4 All ER 310.

This case involved the dismissal of a prison officer. He appealed against his dismissal to the civil service appeal Board which held his dismissal unlawful and recommended he be reinstated. The Home Office refused to reinstate him. The Board then assessed the compensation for unfair dismissal but refused to give reasons for its award. He applied for judicial review, inter alia he attacked the refusal of the board to supply him with any reasons justifying the amount of the award and sought an order that the board give reasons and sought a declaration that the board had exceeded its powers and acted unlawfully. Lord Donaldson M.R. delivering the Court's decision said at p 318.

"I accept that however desirable it may be that decision-makers shall give reasons, and even more essential that they shall have them and know what they are, that is not the same as being required by statute or the common law to communicate such reasons to those affected. However, I do not accept that, just because Parliament has ruled that some tribunal should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals if justice so requires. As Lord Bridge put it in Lloyd v McMahon [1987] UKHL 5; [1987] 1 All ER 1118 at 1161[1987] UKHL 5; , [1987] 1 AC 625 at 702-703. 'My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness'

In a later passage at p 319 he said: I then ask myself what additional procedural safeguards are required to ensure the attainment of fairness. The answer is, I believe to be found in the judgment of Lord Lane CJ in R v Immigration Appeal Tribunal, ex parte Khan (Mahmud) [1983] 2 All ER 420 at 423, [1983] QB 790 at 794-795 which I do not believe owed anything to the fact that the Immigration Appeal Tribunal is required by statute to give some reasons for its decisions. The important matter which must be born in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties and they should indicate the evidence upon which they have come to their conclusions. Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not'. Judged by that standard the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree".

I therefore, respectfully agree with his lordship's reasoning and draw considerable inspiration from the line of authority I have referred to above. Indeed to borrow a phrase from Lord Bridge in Lloyd v McMahon (above). "The so called rules of natural justice are not engraved on tablets of stone". Whenever substantial justice requires reasons to be given, particularly when an individual's livelihood is at stake, or a right of property is sought to be taken from him, or it is sought to deprive him of his liberty, or his residential status, then reasons must be given, certainly when requested unless it be so obvious as to be superfluous. I agree entirely with the submission on behalf of the Petitioner, that the provision of reasons is undoubtedly a protection against potential arbitrary executive action and that in the above circumstances a failure to give reasons would be a denial of the protection of the law because it permits of the concealment of errors of law and has a tendency to frustrate judicial review. Therefore, the statutory denial in sections 3(6) and 8A(2) of the opportunity to challenge an adverse Ministerial decision is a deprivation of the "fundamental right" to the protection of the law within Article 5(1)(d) of the Constitution. I would go even further. In my opinion, the phrase "protection of the law" in Article 5(1)(d) implies such procedural safeguards as are required to ensure the attainment of fairness, to borrow a phrase from Lord Donalson MR in the case of R v Civil Service Board Exp Cunningham(above), the rules of natural justice alone may not require, as a rule in all circumstances, the statement of reasons to be provided; but natural justice is but a part of these "Fundamental Rights" safeguarded by Article 5(1) of the Constitution, which in my opinion affords a greater protection to the individual than simply the rules of natural justice. Therefore, the denial of reasons envisaged in sections 3(6) and 8A(2) is just as much a denial of the protection of the law afforded by Article 5(1)(d) and is unconstitutional and I so rule.

Plainly the Constitution of Vanuatu was drafted with all the rules of natural justice and fair play well in mind in order to safeguard and protect for the future the interests of those individuals who live in Vanuatu. I have no doubt that those charged with the drafting of the Constitution of Vanuatu had in mind this passage in Blackstone's Commentaries on the Laws of England Book 1 chapter 1 at p 137, and intended it to apply to Vanuatu:

"A third subordinate right of every Englishman is that of applying to the Courts of justice for redress of injuries. Since the law is in England the Supreme Arbiter of every man's life, liberty, and property, Courts of justice must at all times be open to the subject, and the law be duly administered therein."

The final submission on this particular subject is made on behalf of the respondent under the rubric of "Unequal treatment". It is not a submission upon which issue was taken on behalf of the Petitioner, albeit that it is raised in the President's petition, and for that reason, I consider that I should apply my mind to it. It can be done relatively briefly. I agree with Mr Merkel's submission, that the provisions in these Bills do not constitute unequal treatment either under the law or otherwise. If it arises at all, it will be by application, but that is not the case on the face of the Bills. The obligations created by article 5(1)(k) of the Constitution contemplates equality inter pares, and I accept that it cannot be otherwise. The proposition that it must be between equals that the obligation to be treated equally under Article 5(1)(k), is supported in various Canadian decisions in judgments construing a similarly drafted Article of the Canadian Constitution. I am helpfully referred to the case of Smith, Kline & French Laboratories Ltd v Attorney General of Canada (1986) 34 DLR (4th) 584. In this case the Federal Court of Appeal of Canada (Heald, Mahoney and Hugessen JJ) were considering the application of the criteria to Section 15(1) of the Canadian Charter of Rights and Freedoms. In order to make the point I propose to set out below the relevant parts of section 15(1):

"15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination". [It is markedly different to the Vanuatu Constitution on one point, namely that the Vanuatu Constitution allows for certain restrictions imposed by law on non-citizens, but that distinction apart; the principle in the judgment applies equally.]

Hugessen J delivering the judgment of the court at p 589 says:

"Since my approach to section 15 differs substantially from that taken by the trial judge, I think it appropriate that I should set it out in some detail, even though the result is ultimately the same. In the first place and in the particular context of this action, it must be said that a short answer to the Plaintiffs' s.15 attack is that, when the alleged "discrimination" results directly from a voluntarily assumed package of rights and obligations, section 15 simply does not come into play. A number of simple examples serve to illustrate the point. Certain offices, professions or callings have, as a condition of their exercise, a prohibition to carry out certain other activities open to the citizenry at large ....... section 15 surely cannot be invoked here for no one is ever obliged to subject himself to the restraint imposed. An example from a wholly different field would be a licence to fish for trout or shoot partridge. An argument that the holder was, by operation of section 15, entitled to claim a right to fish for salmon or shoot big game would properly be laughed out of court. A third example of what I would call as "phony" discrimination is the purchase of a lot zoned for the construction of residential bungalows only. Section 15 cannot be engaged to support an argument for the construction of a commercial highrise on the site. It is elementary, in my view, that no inventor is ever obliged by law to patent his invention. He may keep it to himself and exploit it virtually for ever, provided he is able to keep the secret from others and provided no other inventor manages to hit upon it on his own".

Another example is again to be found in the judgment of Holland J in Re NKH Ltd and Township of Verulem (1988) 40 DLR (4th) 306 delivering the judgment of the Ontario High Court of Justice at p 314. Considering the application of Section 15 he stated:

"The basic nature of the right conferred by s.15 is relational or comparative. The concern for equality is that those who are similarly situated with respect to the purposes of the law be treated similarly. Distinctions made in legislation are not discriminatory and do not violate s.15 unless: (1) they discriminate against groups or individuals who are "similarly situated" in a non-arbitrary manner relevant to the purpose of the law; and (2) the resultant distinction adversely affects them and is unfair and unreasonable or impacts upon them in a constitutionally relevant sense. Both of these tests must be met before s.15 is violated".

I respectfully agree with the learned judge. A simple, but obvious example suffices. A surgeon applies for a licence to practice surgery at the central hospital at the same time as the local butcher, who decides that he wants to branch out, but the surgeon is chosen again two nuclear scientists of equal competence apply for a post advertised by the Vanuatu Government who decides to set up a research centre, but the one who is bilingual is chosen. Those are extreme examples, but they apply equally in more mundane matters.

I have no difficulty in adopting the reasoning imparted by this line of authority when considering Article 5(1)(k) of the Constitution of Vanuatu. Any other approach would fly in the face of common sense.

It is also submitted that for the purpose of the same Article of the Constitution (5(1)(k)) the right to equality of treatment does not extend to claims which are purely economic or commercial in their nature. Mr Merkel seeks support for this contention in the judgment of McKinlay J, in Institute of Edible Oil Foods v Ontario(1987) 47 DLR (4) 368 at 380, another decision of the High Court of Justice of Ontario. It is worth noting that on this occasion, the learned judge was referring to Section 7 (not 15) of the Canadian Charter of Rights, which combines Article 5(1) (a),(b) and (c) of the Vanuatu Constitution thus:

"Section 7 "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

He said:

"I frankly find it difficult to accept that counsel would seriously advance a s.7 argument in a case such as this. However the applicant argues that the right to liberty within the meaning of section 7 protects commercial or economic rights, including the right to market and purchase products in a colour of one's choice. In my opinion, economic rights do not fall within the ambit of s.7".

Again, I entirely agree with the learned judge's approach and adopt his reasoning with regards to the Vanuatu Constitution Article 5(1) (a), (b) and (c). But I cannot and do not accept, that the learned judge would have applied the same reasoning to section 15 of their charter of Rights any more than I apply it to Article 5(1)(k) of the Vanuatu Constitution. To borrow a phrase from the learned judge, I find it difficult to accept that counsel would seriously advance an Article 5(1) (a), (b) and (c) argument in the present context.

Petition 103 refers to a Bill proposing the establishment of a Statutory Corporation, the Vanuatu Broadcasting & Television Corporation, with a view to the better management and proper control of television broadcasting in the Republic of Vanuatu. The Prime Minister is empowered to appoint members to its board and likewise to remove them (s.3(6)) without assigning reasons and without the matter being called in question in any court. Section 43 determines who shall be entitled to broadcast and in particular entitles the Minister to enquire into the suitability, qualification or otherwise of applicants for a broadcasting licence. Section 47 permits the Minister to vary the conditions of the licence during its currency. Section 48 permits the revocation of the licence for cause and after inquiry.

It is clear that the setting up of a Broadcasting Corporation for the Republic is a matter properly within the competence of Parliament, and that Parliament is also competent to determine its operational limits and the nature of its composition. It is submitted for the respondent that the rights and freedoms afforded by Article 5 do not apply to statutory corporations and that the holder of a statutory office cannot claim a right not to be removed in accordance with the terms of his appointment or at all as included amongst the fundamental freedoms and rights. I am referred to two cases in support of that contention; Re Weinstein and Minister of Education (1985) 20 DLR (4th) 609 at 619 a decision of the Supreme Court of British Columbia. This involved the invocation by elected representatives of a statutory body, the Vancouver School Board, of the protection of section 15 of the Canadian Charter of Rights equivalent of the Vanuatu Article 5. Callaghan J held as follows:

"The Canadian Charter of Rights and Freedoms bestows no rights or freedoms on creatures of Statutes like the Board or on members of the Board in that capacity ... Persons or individuals are entitled to those right and freedoms. They are not guaranteed to statutory bodies ...... or to members of the board acting in their official or elected capacity. It is trite law that a statutory body has no powers, rights or duties save those bestowed on it by the legislature".

I am also referred to Harrikissoon v Attorney-General [1979] 3 WLR 348 a judgment of the judicial committee of the Privy Council delivered by Lord Diplock. Briefly, the facts involved the invocation of section 6 of the Constitution of Trinidad and Tobago by the holder of a public office (a teacher) aggrieved by an order of transfer from one place to another . Lord Diplock said:

"The notion that whenever there is a failure by an organ of Government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals ...... by the Constitution is fallacious ..... The instant case concerns, and concerns only, the right of a holder of a public office not to be transferred against his will from one place to another. In their Lordships' view it is manifest that this is not included among the human right and fundamental freedoms specified in the Constitution".

Then later at p351, his lordship sets out the Teaching Service Commission Regulations and at p 52 says as follows:

"These regulations define the legal rights enjoyed by the appellant in relation to his transfer from one post to another in the Teaching Service. It is in the exercise of these rights that he is entitled to the protection of the law."

His Lordship sets out the facts in relation to the transfer on which the appellant's claim was based, and states:

"Again, the appellant made no representations under [the regulations] to obtain a review of this order. Instead, he chose to go straight to the High Court purportedly under section 6 of the Constitution ....... the adoption of this procedure, instead of pursuing the remedy given by the regulations to a teacher aggrieved by an order of transfer, was, in their Lordships' view, misconceived ..... the protection that the law afforded him was, in the first instance, to give notice to the permanent secretary of his desire to make representations to the commission for a review of the order and to submit his representation in writing to the permanent secretary for transmission to the commission, together with the permanent secretary's own comments thereon. Then, and not before then, it would become the duty of the Commission to consider any representations against the order that the appellant wished to make, together with the permanent secretary's comments on them. Having failed to avail himself of this remedy, his claim that the order for the transfer was unlawful, in their Lordship's view, fails in limine."

What their Lordships did not decide, because they claimed it was unnecessary in the circumstances was whether, if the appellant had followed the correct procedure to no avail, the High Court would have had any jurisdiction to quash the Commission's order, not under the Constitution, but upon an application for certiorari. The point in that case being that the Constitution of Trinidad itself contained an exclusion clause in the broadest sense ousting the court's jurisdiction, their lordships felt that this was not the time to decide upon the effect of such a clause in a Constitution and as to whether the principles in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 1 All ER 208 would apply to an ouster of jurisdiction clause in a Constitution as it was held to apply to such ouster clauses in an Act of Parliament. In the present case of course, there is no such exception clause in the Vanuatu Constitution, and given the right circumstances in the present case, even if the Vanuatu Constitution were silent as to such ouster clauses in Acts of Parliament, I have no doubt that the Supreme Court would in a similar case apply the principles of natural justice as enunciated in Anisminic. But for reasons already given by me above, such exclusion clauses in Acts of Parliament in Vanuatu are void and of no effect as it is they themselves that are unconstitutional. That is not to say that I disagree with the general principles as set out in Harrikissoon and Weinstein in relation to statutory bodies, quite the contrary. It seems to me that the rights guaranteed by Article 5 would not be available as a remedy to the holder of a public office who does not avail himself of the remedies provided by the legislation on the ground of entitlement to the protection of the law. It seems to me that he would have refused of his own volition to avail himself of the very protection that he claims. But unlike their Lordships, and without any speculation, I am prepared to say, that if such a party had sought the protection of the law under the legislation, and for one reason or another, the Minister or whatever body is responsible for ensuring the protection granted by the legislation fails to perform his duty or does so arbitrarily, or unfairly, or capriciously or in breach of the rules of natural justice as we know it to be today, then the Supreme Court of Vanuatu has the means within its power to act and will not hesitate to do so in an appropriate case. But it is correct to say that the holder of a public office cannot claim a right not to be removed in accordance with the terms of his appointment or at all as included amongst the fundamental freedoms and rights granted by the Constitution. The Constitution grants no such rights.

Members of the Vanuatu Broadcasting Corporation would be in the same position as members of any other body; public, private or professional, subject to the rules of their respective bodies. A member of the bar who behaves unprofessionally and in breach of the codes of his profession is subject to the disciplines of his profession as is a doctor, an archictect and so on; they fall within the rule in Smith, Kline & French Laboratories v Attorney General (1986) 34 DLR (4th) 584 at 589.

I now come to the Land Acquisition Bill, petition 105. The complaint levelled at that Bill in the Petition is as follows:-

(a) The Bill is contrary to the "Legitimate public interest" test stated in Article 5(1) of the Constitution;
(b) The Bill is Contrary to the "Public Interest" defined by Article 80 of the Constitution;
(c) The Bill is contrary to Article 78 of the Constitution;
(d) The Bill is contrary to Article 77 of the Constitution;
(e) The Bill is contrary to Article 76 of the Constitution;
(f) The Bill is contrary to Article 73, 74 and 75 of the Constitution;
(g) The Bill is contrary to Article 5 (1) (d) and (f) of the Constitution;
(h) In the alternative it is in conflict with the Expropriation for Public Utility Act (CAP 36).

The purpose of the Bill, is to provide for the compulsory acquisition of land and easements by the Government for a public purpose. Part II sets out the procedures to be followed where the Minister intends to acquire land, the notice to be given to the land owner, compensation for damages caused to the land, the objections that can be made to such acquisition and procedures to be followed, compensation for acquisition, appeal procedures both to the Supreme Court and the lands referee, etc...

It is on the face of it a remarkable Bill, providing for all the contingencies of fairness and fairplay as one could ever expect to see contained in an Act of Parliament.

Article 73 States:

"All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants."

Article 74 states:

"The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu."

Article 75 states:

"Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with a recognised system of land tenure shall have perpetual ownership of their land."

Article 76 states:

"Parliament after consultation with the national Council of Chiefs shall provide for the implementation of Articles 73, 74 and 75 in a national land law and may make different provision for different categories of land, one of which shall be urban land."

Article 77 states:

"Parliament shall prescribe such criteria for the assessment of compensation and the manner of its payment as it deems appropriate to persons whose interests are adversely affected by legislation under this Chapter."

Article 78 States

"1. Where consequent on the provisions of this Chapter, there is a dispute concerning the ownership of alienated land, the Government shall hold such land until the dispute is resolved.
2. The Government shall arrange for the appropriate customary institutions or procedures to resolve disputes concerning the ownership of custom land."

Article 80 states:

"Notwithstanding Articles 73 and 74 the Government may own land acquired by it in the public interest."

As we can see in Vanuatu all land belongs to the indigenous custom owners and the rules of custom form the basis of that ownership (Articles 73 and 74). But by Article 80, the Government is entitled to own land acquired by it in the public interest.

It is submitted by Mr Vasaris that the proposed land Acquisition Bill is unconstitutional because he claims that the Bill is in fact a "land law" and that it was done in breach of Article 76 namely, not in consultation with the National Council of Chiefs. Although there was no evidence of that statement before me, for the purpose of this judgment I am prepared for the sake of arguments to accept it as right.

In my opinion, the Land Acquisition Act has none of the components of a National Land law. It is exactly what it purports to be: a Bill for the purpose of compulsory purchase by the Government of land for public purposes. It does nothing else; it does not define interests in land or the manner in which land shall be transacted between individuals, nor does it provide for the machinery for the transaction of land other than land purchased by the Government. As we can see, Article 80 specifically preserves the Government's power to buy land for public purposes in the interest of indigenous citizens. Having assumed as I did that no consultation took place between the Government and the National Council of Chiefs, I fail to see how this Bill could possibly be said to be in breach of Article 76, since it can in no way be said to be a land law. Nor is there anything in the Bill that breaches any of the terms of Articles 73, 74 or 75. Section 9 of the Bill sets out the terms for compensation including the purchase at market value of the land at the time of acquisition; compensation for loss of crops and for all other matters incidental upon the acquisition of the land. Section 10 compensates for loss of rent. Sections 11, 12, and 13 set up all the machinery which would be a prerequisite of natural justice and more; it is therefore not in breach of Article 77. Article 78 simply does not apply to this situation, it is concerned with disputes arising out of Alienated land and concerning customary disputes.

It is not for the Courts to dictate to Parliament what is or what is not in the public interest. It is for Parliament democratically elected to determine, upon the mandate given it by its electors as no doubt clearly defined in its manifesto, what is or is not in the interest of the Public. There is quite a difference between what may be said to be matters of interest to the public or a section of the public and what is in the Public interest. The difference being between what may benefit the public and be in their interest, as opposed to what may excite the interest of the public. The first must be dictated by Government policy and political acumen and the latter a matter of opinion. It cannot be better expressed than in the judgment of the Supreme Court of Victoria in D.P.P. v Smith (1991) I.U.R. 51 at 75:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of Government and Government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".

If the Courts were to dictate what is or is not in the public interest, it would simply be usurping the function of Parliament, besides which it would be dictating the policy of the Government of the day, which is outside its competence.

As for the submission of conflict between the Expropriation for Public Utility Act (CAP 86) and the present Bill, I need simply say that the purpose of each is so different to the other as not to be worthy of further consideration. The first is an Act concerned with the acquisition of property for public works, whereas the latter is for the compulsory acquisition of land and easements for a public purpose, which is defined as, "the utilisation of lands necessary or expedient in the public interest".

Under the proposed Bill, the court remains entitled to control any excess of power or failure of duty by the Minister or other public officer. Indeed there is preserved within the Bill a specific right of Appeal to the Supreme Court under section 12.

In short, there is nothing in this Bill that is either unjust deprivation, or interferes in any way with the protection of the law or purports to allow unequal treatment . It is in my opinion a model Bill in every respect.

In accordance therefore with Article 16(4) of the Constitution and for the reasons I have stated above, it is my opinion that Section 3(6) of the Broadcasting and Television Bill and Section 8A (2) of the Business Licence (Amendment) Bill are inconsistent with article 5(1)(d) and are unconstitutional. I find nothing unconstitutional in section 43, 47 and 48 of the Broadcasting and Television Bill. I do not find the Land Acquisition Bill to be unconstitutional in anyway whatsoever. I therefore advise his Excellency the President of the Republic of Vanuatu to sign that Bill as it stands, thus permitting the same to become law.

I now turn to consider whether the fact that section 3(6) of the Broadcasting and Television Bill and section 8A(2) of the Business Licence (Amendment) Bill being unconstitutional, make the whole Bills unconstitutional. I am forced to the conclusion that they do and that therefore both Bills are unconstitutional. The next question which I must ask myself is, have I the power or authority to amend those Bills in such a manner as to render them Constitutional?

Both parties here have submitted that in the event that I should find only parts of the Bills to be unconstitutional, then I would be authorised under the Constitution itself to take whatever steps are necessary to render the Bills Constitutional. I note in particular that:

Article 49(1): "The Supreme Court has unlimited jurisdiction to hear, and determine any civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law."

One of the other powers conferred on the Supreme Court by the Constitution can be found in Article 6(2) as follows:

Article 6(2) "The Supreme Court may make such orders, issue such Writs and give such directions, including the payment of compensation as it considers appropriate to enforce the right."

The right referred to in Article 6(2) is the right conferred under Article 6(1).

I have no doubt, therefore, that the above submission by both parties is correct. Therefore under the powers conferred on the Supreme Court by Articles 49 (1) and 6(2) of the Constitution, I direct as follows; namely:

1. That the following words of Section 3(6) of the Broadcasting and Television Bill be removed:
2. That the whole of section 8(A)(2) be removed.

It is my opinion that subject to the removal of those offending passages, his Excellency the President can, if he so wishes, sign the three Bills in Petitions Number 103, 104 and 105. I therefore, respectfully invite His Excellency the President to do so.

I further direct that the cost of bringing these Petitions before the Supreme Court be met and paid for by the Government, and that the Petitioner's costs be taxed if not agreed.

1 November 1992

HON CHARLES VAUDIN D'IMECOURT
CHIEF JUSTICE

[Note: This decision went on appeal; it is reported as Attorney General v Timakata C.A. 1/93. This decision is also referred to in Willie v Public Service Commission; S/C 145/92.]

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