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Willie v Public Service Commission [1993] VULawRp 5; [1980-1994] Van LR 634 (25 March 1993)

[1980-1994] Van LR 634

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 145 of 1992

BETWEEN:

BILL WILLIE
Petitioner

AND:

PUBLIC SERVICE COMMISSION
Respondent

Coram: Honourable Mr Justice Vaudin d'Imecourt C.J.

Mr Silas Hakwa for the Petitioner
Mr Peter Coombe of the Queensland Bar with Mrs Heather Lini Leo of the Attorney General's Chambers for the respondent

JUDGMENT

[ADMINISTRATIVE LAW - CONSTITUTIONAL LAW - EMPLOYMENT - Public Service - compulsory retirement]

This matter started by way of an amended Petition under Section 218 of the Criminal Procedure Code [CAP 136], which states as follows:

218(1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53(1), 53(2) and 54 of the Constitution shall be by Petition and shall be valid no matter how informally made.
(3) The Petitioner shall, within 7 days of the filing of his Petition in the Supreme Court or within such longer period as the Court may on application being made therefore order, cause a copy of the Petition together with copies of supporting documents filed in relation to such petition to be served on the party or on all those parties whose actions are complained of.
(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 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.

As a preliminary issue, the Petition was opposed on behalf of the respondent under Section 218 (4) on the ground that the Petition is without foundation or vexatious or frivolous. It is contended on behalf of the respondent:

(1) That the prerogative writs are so obviously orders which are appropriate to normal types of applications for judicial review that it is not necessary to call in aid the Constitution; and
(2) That where there is a perfectly good legal right then that should be adopted rather than make an application under the Constitution.

For the above propositions I was referred to my decision in Timakata v Attorney General Civil Case No 103 to 105 of 1992 and to the case of Harrikissoon v Attorney General [1979] 3 WLR 62. This was a decision of the Privy Council with regards to the provisions of the Constitution (Section 1 (d)) of Trinidad and Tobago. The case concerned solely the right of a holder of a public office, in Trinidad and Tobago, not to be transferred against his will from one place to another. Their Lordships ruled that this was not included among the human rights and fundamental freedoms specified in the Constitution in these terms at page 350:-

"The suggestion made on behalf of the appellant that it constitutes "property" within the meaning of Section l(a), viz.:
"the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law" needs only to be stated to be rejected."

at p 349 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 Chapter 1 of the Constitution is fallacious. The right to apply to the High Court under Section 6 of 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 involving judicial control of administrative action. In an originating application to the High Court under section (1) the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of 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 any human right or fundamental freedom."

In Timakata v Attorney General civil case 103 to 105 at p 16, I went on to say:

"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."

Article 6 of the Constitution of Vanuatu, as I pointed out before, specifically preserves this duality of redress in this way:

6(1) 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 legal remedy, apply to the Supreme Court to enforce that right.

The Petitioner has, therefore, a Constitutional right of deciding how he shall bring his action, by way of a Petition or Motion under the Common Law, always remembering that, in the words of Lord Diplock, "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 [under] the Constitution is fallacious."

For the purpose of this submission, I must also bear in mind that the Petitioner also petitions under Article 53 of the Constitution which states:

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.

and both Articles 6(2) and 53(2) give jurisdiction to the Supreme Court to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution. The fundamental rights are as much a provision of the Constitution as any other provisions of the Constitution including Chapter 9, more particularly Article 57 (5) which provides security of tenure to members of the Public Service of Vanuatu and it is, inter alia, that provision of the Constitution which the Petitioner also alleges has been breached with regards to him.

The Petitioner is an eminent Public Servant of long standing who on the face of it has been compulsorily retired without being given any reasons, or notice, or hearing; in my view this Petition is far from being without foundation or vexatious or frivolous and therefore pursuant to Section 218 (5) of the Criminal Procedure Code [CAP 136], the matter was set down for hearing.

In his Petition, as I see it, the Petitioner complains of two breaches of the Constitution, Firstly, he alleges that certain fundamental rights have been breached with regards to him:

i) the right to protection of the law; and
ii) the right to equal treatment under the law or administrative action.

These rights being guaranteed to him under the Constitution (Article 5(1)(d) and 5(1)(k) and secondly that his rights under Articles 57(5) and 57(8) have also been breached, and it is worth setting those out in detail:

Article 57(5) For as long as their post exist, Public Servants shall not be removed from their posts except in accordance with the Constitution.
(8) The security of tenure of Public Servants provided for in sub-article (5) shall not prevent such compulsory early retirement as may be decided by law in order to ensure the renewal of holders of Public Offices.

He alleges, therefore, that the protection afforded him by the Constitution to the Protection of the law, to equal treatment under the law and administrative action, to the security of tenure afforded him in accordance with the Constitution and the protection from being early retired except as may be decided according to law, have all been breached, and he seeks remedy by orders of the prerogative writs of certiorari, prohibition and mandamus, as well as damages and or such other order as the Court shall consider just. It is further submitted on behalf of the petitioner, that all the rules of natural justice in his case have been breached. That he was never informed of any intention to compulsorily retire him, that he was never given an opportunity to discuss his case with anyone, that he was never told the grounds on which it was proposed that he should be compulsorily early retired, that he was not given proper or adequate notice and that no reasons were ever given to him for so doing.

It is submitted on behalf of the respondent as follows:

That this is a case involving the limits of public policy and the extent to which the Courts can or should intervene in the process of compulsory early retirement of Public Servants of the Republic of Vanuatu. It is submitted that there are close parallels between the Vanuatu Public Service and the British Civil Service. That the test in Britain of a Civil Servant is that he should be in the non-military service of the crown, there being a relationship of master and servant. That in England in 1968, consequent upon the Fulton Report, the control of the civil service was transferred from the Treasury to a new Civil Service Department; headed by a Minister for the Civil Service, who was invariably the Prime Minister, but the position was changed again in 1981 when the Civil Service Department was abolished. It is submitted that it is therefore valid to compare the system in Vanuatu with the system prevailing in Britain between 1968 and 1981. In Britain the Civil Service Order in Council 1969 gave the Minister the power to make regulations with regards to Civil Servants. That the legal sanction behind these powers of control is nothing more than the crown's power to dismiss it's servants at pleasure. That a Civil Servant, until 1972 threatened with dismissal or premature retirement could merely appeal to his head of department. That the position at Common Law is that to be found in Dunn v The Queen [1895] UKLawRpKQB 205; [1896] 1 Q.B. 116 see also Rodwell v Thomas [1944] KB 596; and Riordan v War Office [1969] 3 All ER 553. That the general policy of judges has clearly been to treat crown service as no concern of the ordinary Law. It is accepted that since 1972 a Civil Service Appeal Board has been set up to deal with complaints of unfair dismissal and premature retirement but, it is further submitted that the Common Law applies to Public Servants in Vanuatu, except to the extent that their position has been modified by the Constitution or statute. It is conceded that there is no equivalent in Vanuatu of either the Civil Service Appeal Board or the unfair dismissal provisions contained in the Employment Protection (Consolidation) Act 1978 and therefore, it is submitted that prima facie, the only remedy available to a public servant threatened with premature retirement is to appeal to his head of department, and that this is not altered by the Constitution or any statute of Vanuatu. It is submitted that the relevant provisions of the Constitution are Article 57(5) and 57(8), the relevant provisions of the Public Service Act [CAP 129] are sections 4(1), (2), (3), (5) and (6). That the relevant provisions of the staff Manual are, Chapter XI Clause 11.1 (i), (ii), complaints Procedure Chapter IX, Clause 9.12.8 and that there are no other provisions contained in the staff manual relating to early retirement. It is also submitted that except for compensation, none of the provisions of the Constitution, the Public Service Act or the Staff Manual, give a Public Servant any greater rights than obtained at Common Law in the event of early or premature retirement. In all other respects the only rights available to the early retiree is to appeal to the head of his department, or to the Director of the Public Service, or ultimately and finally to the Minister responsible for the Public Service - see Clause 9.12.8 of the Staff Manual.

The Petitioner, who was born on the 3rd September 1955 and is therefore 37 years old at the time of the present hearing, was on all accounts an eminent and exemplary Public Servant of considerable experience. He started Public Service in 1974 in the British Colonial Service of the New Hebrides. He entered the Public Service of the Republic of Vanuatu at Independence. In 1985 he was promoted to the position of Executive officer in the Department of Post and Telecommunication, where he had been since August 1979 and in September 1990 he was promoted to the position of Director of Postal Services. It is Common ground, as testified by witnesses on all sides, that he was in every respect an exemplary Public Servant of the Republic, and indeed, Mrs Maria Crowby who had became head of the Public Service Department in January 1992 stated in evidence when talking about a letter written to her from the Second Secretary to the Minister of Post and Telecommunication, that she found no reasons upon which Mr Bill Willie the Petitioner could be validly early retired.

By a letter dated the 13th March 1992, (annex 3 to the petitioner's affidavit dated 21st August l992) signed by Mr Jacob Thyna, he was informed for the first and only time that he was being early compulsorily retired, in these terms:-

"I am writing to advise you that under the powers of the Public Service Commission delegated to the Director (sic) of Public Service Department under the law the Director of Public Service decided in accordance with Section 3A(2) of the Public Service (Amendment) Act No. 2 of 1985 to offer you Early Compulsory retirement with effect from 14th March 1992.
The Director of Public Service agreed to pay you three (3) months salary in lieu of notice and that your last day of service with the Government of Vanuatu will be 13th March 1992."

The letter then purports to set out his statutory entitlements and is signed by Mr Thyna who describes himself as Deputy Director of Public Service. By this letter, Mr Bill Willie's employment in the Civil Service of Vanuatu was purportedly terminated.

This letter is misleading in a number of ways. It says in terms that the Public Service Commission had delegated its powers to the Director of the Public Service Department that, as we will see later, was inaccurate or untrue. It goes on to say that in pursuance of the delegated powers of the Commission, the Director of Public Service Department had decided to offer early compulsory retirement, that too was inaccurate or untrue. The Director of the Public Service Department not only did not hold the powers of the Commission to do anything of the sort, neither had she agreed to do so. Mrs Maria Crowby, who was in fact the Director, was called on behalf of the respondent to give evidence. At the request of counsel for the respondent she produced two letters Exhibits 7 and 8. I noted that the first was headed "Highly Confidential" as the production of the letter meant that it fell in the public domain, I raised the matter with counsel, but counsel persisted in producing it, no doubt on instructions, thus waiving the confidentiality. This letter dated the 27th February 1992 comes from the 2nd Secretary in the Ministry of Post and Telecommunication (Mrs Jeanette Hilary Bolenga) addressed to the Director, Department of Public Service (Mrs Maria Crowby) in these terms:

"I am directed to submit to you the list of Civil Servants in the Post Department whom if are continued to be employed would jeopardises the implementation of the coalition Government policies. They are:
1. "Mr Bill Willie - Director (VP)"
this is followed by 20 other names. Against the greater majority of those names an affiliation to one political party or another (either VP, MPP or Tan Union) is suggested and the letter ends:
"Please note that out of forty (40) servants in the Postal Department, over half (21) are supporters of VP, MPP and Tan Union. The Ministry considers such an unbalanced proportion unhealthy for the Coalition Government.
I leave it for appropriate attention and would be grateful if the Ministry is informed of any progress accordingly."

I understand this letter to be a request to Mrs Maria Crowby to implement the dismissal or early retirement procedures with regards to the twenty-one people named in the letter. That was also Maria Crowby's understanding of this letter. In her evidence to the court, she said as much. She went on to say that as a result she wrote back to the second secretary inviting her to give valid reasons for implementing the procedure requested. Mrs Crowby said in evidence before the Court that she did not consider the reasons stated in the letter Exhibit 7 as sufficient ground to early retire or dismiss anyone. She was right. The reasons given were blatantly political. Mrs Crowby then wrote back (Exhibit 8) on the 4th March 1992.

"Following your letter of 27th February 1993 (sic) Reference 700/1/1/JB/MC, relating to the possibility of terminating some Public Servants within Postal Services. I have the honour to request if you could send me more information and a report on the Director Mr Bill Willie that I could see as a basis on which to retire or dismiss him. Following the retirement of the person concerned, please inform me of the name of the person replacing him. Once this person is offered the post, he/she will be in charge of submitting reports on other officers included in the list."

Mrs Crowby went on to explain that, in her view, since the letter of the 27th February did not provide valid reasons for terminating anyone, she was seeking valid reasons before putting anyone's name before the Commission. She then received a phone call from the Prime Minister's Second Secretary who apparently told her that he had received a communication from the Ministry of Post and Telecommunication who wanted to know if she had implemented the request in the letter of the 27th February. She replied that she had not, but that she had written back asking for valid reasons and when she received an answer to her letter, she would then consider it. She never received an answer to her letter and therefore never implemented the procedure. This letter of Mrs Crowby is important for it sets out in part the procedure which is apparently followed or adopted for the implementation of early retirement namely, that the first step is a 'report' from the person's head of department. Secondly, it is important because it makes it plain that she, as Director of the Public Service, never did consider retiring Mr Bill Willie as suggested in Mr Thyna's letter to Mr Bill Willie dated 13th March l992. Why the lie then I ask myself? Plainly Exhibit 3 (the minutes of a meeting of the Public Service Commission of the 6th March 1992) show that Mr Thyna had been delegated the powers of the Chairman; his letter of appointment dated 6th March (Exhibit 5), shows that clearly; as indeed does Exhibit 4 (minutes of a subsequent meeting of the Commission to revoke the Commission's powers delegated to Mr Thyna). I also heard evidence in Court from a number of people present at the 1st meeting (Exhibit 5) about it, and I am satisfied that Mr Thyna did hold a 'Commission' from the Public Service Commission at the time of Mr Bill Willie's termination. What is more, Section 9 (1) of the Public Service Act CAP 129, only entitles the Commission to delegate its powers to a 'Commissioner' not the powers of the Chairman.

Indeed, as I understand it, the Chairman has no special powers that can be delegated by the Commission. Therefore, I ask again why the lie? I will come back to this point later.

There is, I was told in evidence, apparently no special procedure laid down for early retirement, but there is a procedure that is invariably adopted; I heard about that from Mr Ishmael. He said that the practice at the time for early retirement was that the request would be made by the head of department to the Public Service Department. He would put in a report to them, which would then be referred by them to the Commission for their consideration. The Commission would consult with the Prime Minister after which the Commission would consider the issues and then make a decision. He claimed to have had no knowledge about what had happened in the case of Bill Willie because, he said, the powers of the Commission in that case had been delegated to Jacob Thyna and therefore he had no direct knowledge of Mr Bill Willie's case. This evidence accords with that given by Mrs Crowby, in as much as her letter Exhibit 8 would tend to suggest that that was the procedure she would have followed herself. So therefore, the procedure as I understand it is as follows: a "Report" is made by the head of department, that "Report" is referred to the Commission, the Commission consults with the Prime Minister and thereafter they adjudicate. What was surprising was Mr Ishmael's evidence that he had never known an occasion when the interested party had been given an opportunity to be heard, or indeed informed beforehand that early retirement was being contemplated with regards to him or indeed on what grounds they were being considered. He claimed that the main reason for early retirement would be for the efficiency of the service. He explained what this meant to him in this way:

"what I understand by improving the efficiency of the service is that, for instance, if I cannot work with someone, then to get him out we early retire him. We have a reporting system to the Public Service Commission. The head of Department would make the report. No retirement would be made without first receiving a report on that person from the head of department. If it is the head of department who is being retired, then the report would come from the Minister."

Later on, in a question put by me he said:

"Take the example of someone who has done nothing wrong, you cannot discipline him, you have to find a way of getting rid of him. You give him early retirement unless you want him to stay until he is 55 years old. Minister Tambisari was the Minister responsible in this case and the person to put the report. I see early retirement as an easy way round the security of tenure in order to dispose of a public servant who is no longer found suitable for one reason or another."

In further cross-examination by Mr Silas Hakwa for the Petitioner, he said:

"I was not aware of any reports made by the Minister in the case of Mr Bill Willie, and was not aware of any reports made by anyone with regards to Mr Bill Willie."

So according to Mr Ishmael, who had been Chairman of the Public Service Commission for 3 years, early retirement was seen as an easy and convenient way of disposing of someone whom one no longer wished to employ. Furthermore, one would never give him an opportunity to be heard either personally or by correspondence, (and If Mr Thyna is correct, that person would not even be informed that he is being considered for early retirement at all) one just writes to him and terminates his employment and preferably by giving him 3 months salary in lieu of notice.

I also heard evidence in this case from Mr Pakoa Songi. He was an impressive witness, with an impeccable background. A highly experienced man. He had served Vanuatu in the Public Service of the New Hebrides since 1971. He had occupied senior posts and had been a member of the Civil Service Disciplinary board and had been on the Public Service Commission for 3 years between 1989 and 1992. He gave evidence that he was surprised at the number of people who were terminated during the Commission held by Mr Thyna and said:

"A lot of those cases were irregular as it seemed to be against what we had decided during that week. During that week there were submissions to terminate some Public Servants and we [the Commission] had rejected it, because they had asked us to do so on grounds that were not right, but after the delegation of the power to the Deputy Director, he terminated the people himself. On the 10th March we had rejected demands by the Prime Minister's Office to terminate services of three expatriate officers. We asked for a meeting to explain, at four o'clock the same day they were dismissed under the delegation of power."

He then went on to say that during the period 9th March to l9 March during which the Deputy Director of Public Service held the Commission "probably 20 people were terminated". During his own term of office as a member of the Public Service Commission he said that there were occasions when people were early retired, but he said that that was when they were sick, or when they wanted to go to work in the Church as pastors or wanted to do Chiefly duties in their communities. It certainly was not used as some form of convenient way of getting rid of someone.

The gist of Mr Pakoa Songi's evidence amounted to this. That he took the view that the provisions for early retirement was a matter for the parties seeking early retirement on health grounds or for some community reasons; he certainly did not give me the impression that the purpose was to get rid of someone one could not dismiss because he was too good an officer to be disciplined. Nor did he give me the impression that it was being used for the purpose of circumventing the security of tenure guaranteed by the Constitution, nor that it was done in breach of any rules of natural justice. His evidence was more akin to the views I formed of Mrs Crowby's evidence. That you had to have valid reasons to early retire, that it was not a procedure open to abuse of one kind or another.

Mr Bill Willie, the Petitioner, gave evidence in this case. He adopted his affidavit and was cross-examined. He gave evidence of his very long experience in the service of his country, and of the manner in which that service was terminated; without any prior notice; without any prior indication that he was being considered for early retirement; without any opportunity of defending himself or explaining his position. Just by a letter dated 13th March terminating his employment as from the 14th March 1992 and giving him three months salary in lieu and his statutory entitlement. The letter ended as follows:

"Finally on behalf of the Vanuatu Government I wish to take this opportunity to thank you for the services rendered since your appointment with the Postal Services. I wish you every success in whatever you may be doing in the future."

Not entirely surprisingly, Mr Willie wrote back on the 23rd March in these terms:

"I refer to my letter of retirement, dated 13th March 1992. After some preliminary investigations it is now apparent, that I am unfairly compulsory retired. On Monday 16th March 1992, I was told by the Deputy Director of Postal Service, Mr Abbie Navity, that the Honourable Minister, Mr. E. Tambisari did not know about my retirement, as he was away in Santo, and asked the reason why I was retired.
My understanding of compulsory retirement is when an officer is proved to be ineffective and inefficient. During my service since joining the Department in August 1979, I cannot remember having a disciplinary case. I therefore request you to furnish me with the following, please:

• (a) The reason of my early retirement.
• (b) The date of when my case was brought before the commission for normal hearing.
• (c) Could you confirm whether Mr Thyna is legally authorised to issue such letters of retirement.

I would be pleased if you could reply to this at your earliest convenience, and at the same time take this as an appeal in the normal course of events for my retirement.
I thank you for your indulgence."

The above letter was addressed to the Chairman of the Public Service Commission and was copied to the Prime Minister, the Minister of Postal Service and the Director of Public Service Department.

Almost a month later the Chairman wrote back in a letter dated 16th April 1992 in these terms:

"Reference to your letter dated 23rd March 1992, we wrote to advise that the authority to give early retirement to any officer rests with the Public Service Commission.

Secondly, it is advisable that officers who were given early retirement to understand that such retirements should not be confused with, as a sort of discipline. This is not a matter of discipline or an allegation of inefficiency and ineffectiveness, but purely that of compulsory retirement, with no other reason than to ensure that a particular postholder is renewed.

We trust our response here will assist in eliminating any other queries you may have regards to your particular cause."

That letter is signed by the then Chairman Mr William Mael. I note in passing that no mention is made of any right of appeal as is requested in Mr Willie's letter. I am to understand that the decision is totally arbitrary and without any recourse.

Finally Mr Willie wrote back thus:-

"I refer to your letter dated 16th April 1992 and shall be grateful for the answers of b and c as requested in my letter of 23rd March 1992.
I still maintain that I was unfairly compulsory retired and will now challenge your decision in Court."

Therefore, Mr Willie appears to have been terminated quite arbitrarily, never to have been provided with an opportunity to know the case against him, nor to answer the same and was never told the reason save that he should not regard it as a disciplinary matter. In other words, I would have been left with the explanation given by Mr Ishmael, had it not been for the letter given by the Second Secretary to the Minister of Post and Telecommunication, Exhibit 7 in this case. I also note that Mr Willie mentions in his letter of 23rd March 1992, that his "head" of Department, namely the Minister himself did not seem to know anything about the retirement. Nor have I even heard in this case that he did know or that he did put in as is required under the procedure that is applied, a report for the consideration of the Commission or the Commissioner, Mr Thyna. Therefore, I am left with the letter from the Minister's Second Secretary and Mr Thyna's evidence that it was the Minister's Secretariat that gave him "a verbal" report on Mr Willie. Exhibit 6, is a letter from the Acting Prime Minister, dated 13th March, 1992 to Mr Thyna, in these terms:

"I am writing following consultation to advise you in accordance with Section 4(1) of the Public Service Act 1981 (CAP 129) that the appointment of the below mentioned staff of the various Departments be terminated with immediate effect."

A number of people are then listed including Mr Bill Willie. The letter ends:-

"Could you please complete the necessary formalities to ensure that the abovementioned personnel receive such gratuities or payments to which they are legally entitled".

No discretion it seemed, was being left to the Commissioner.

The important question to be answered is: did the Commissioner, according to the evidence that I have heard and within the framework of the laws covering the employment of Public Servants in Vanuatu, have the power to do what he did in the circumstances in which he did it or not? If he was acting Intra Vires and lawfully, then his decision cannot be impeached. If he acted ultra vires or in breach of the rules of natural justice then, what he did was unlawful and void. The early retirement would therefore be void and Mr Willie would be entitled to the benefits of the rank he held with all the privileges that attached to it at the time of the unlawful retirement. In order to determine the matter, I must review the law of Vanuatu as it must be applied with regards permanent Public Servants, for that is what Mr Bill Willie was until his employment was prematurely terminated.

I am bound to apply in this case as in all cases, firstly: the Constitution of Vanuatu which is the Supreme law of Vanuatu. The "Stamba law" as it is often referred to here. Secondly: I must apply the statutory laws of Vanuatu as enacted by the sovereign Parliament and thirdly: I must apply the common law of Vanuatu, (a) I am bound by prior decisions of the Supreme Court of Vanuatu both at first instance and in the Court of Appeal of Vanuatu and (b) in the absence of direct authority, I must be guided by the rules of the Common law as applied elsewhere in the commonwealth of nations, of which we are members.

I start with the Common Law of Vanuatu, because it can be simply stated. In Timakata v The Attorney General Civil Case No. 103 to 105 of 1992, it was stated as follows at page 9:

"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 Boulekone v Timakata Civil Case No. 90 of 1986, a decision of the full Court of Appeal of the Republic of Vanuatu, Williams J delivering the decision of the Court, with which the then Chief Justice and Ahmet J concurred, at Page 2 stated as follows:

"Fundamental rights are set out in Article 5(1) which includes under paragraph (d) "protection of law". Article 5(2) describes what is meant by "Protection of law". Without repeating it in detail one can say that it specifies the essential requirements of a fair hearing by any one 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."

That decision was followed thereafter in Kalo v Public Service Commission Civil Case No. 74 of 1987 by Cook C.J. at p; 3.

So there can be little doubt that the Common law applies to Vanuatu as do the rules of natural justice "as known and understood in the free and democratic world", and that those same rules apply with equal force to: "all tribunals in Vanuatu ....... whether they be administrative in function or .......... judicial." Indeed, the Constitution of Vanuatu itself says as much in Article 5(1)(k):

"Equal treatment under the law or administrative action" which is one of the fundamental rights guaranteed under the Constitution itself.

Under Article 2, the Constitution is declared to be the Supreme law of the Republic. Namely, that law which governs all other law. Under chapter 3, the administration of this country is governed by the Constitution. Article 57(5) states: "For as long as their posts exist, Public Servants shall not be removed from their posts except in accordance with the Constitution." As we have seen, the Constitution itself guarantees inter alia, two fundamental rights to individuals, under 5(1)(d) protection of the law and (k) equal treatment under the law or administrative action. The "law" there means not only statutory law, but the common law, the rules of natural justice. Therefore, not even Parliament can oust that protection afforded to the individual by the Constitution, by passing an ordinary Act of Parliament. That would require an amendment of the Constitution itself. Whereas an Act of Parliament is passed by a simple majority, an amendment to the Constitution requires two thirds of members present at a special sitting of Parliament at which at least three quarters of the members are present, voting in favour of an amendment: see Article 85. Further, all the laws of Vanuatu are subordinate to the Constitution itself, which is the Supreme law. The protection therefore afforded by the Constitution when it refers to such expressions as "protection of the law," "equal treatment under the law," "decided by law," is nothing short of a Constitutional guarantee to the protection afforded by the rules of Natural justice, "as known and understood in the free and democratic world" to borrow a phrase from Williams J's judgment in Boulekone v Timakata (above). Article 57(8) of the Constitution states: "The security of tenure of Public Servants provided for in sub-article (5) shall not prevent such compulsory early retirement as may be decided by law in order to ensure the renewal of holders of public offices. The Constitution does not say as guaranteed by "statutory law", but "by law" and "in accordance with the Constitution". If the Constitution had meant to deprive members of the Public Service of their security of tenure in any other way, it would have said so. In short what it says is that the security of tenure guaranteed to Public Servants of Vanuatu by the Constitution cannot be removed from them in the circumstances of early retirement save if done according to law, with all the protection afforded by law, the Constitution and the rules of natural justice. I am comforted in my belief that this is the only correct Construction of the Constitution that can be adopted in this case by a not dissimilar Construction of the Bahamian Constitution made by the Privy Council in Attorney General v Ryan (1980) AC 718 at 724. That was a case involving the application by a foreign national to be given Bahamian nationality. It involved the interpretation of article 5(2) of that Constitution in relation to the Bahamas Nationality Act which in the view of their Lordship purported to give the Minister powers which went beyond that permitted by the Constitution itself. Article 2 of that Constitution, like that of Vanuatu, made the Constitution the supreme law and made any law inconsistent with the Constitution, to the extent of the inconsistency, void. see p 723. "The Bahamas Constitution with regards to Nationality reads (see p 724), as follows:

"Article 5(4) Any application for registration under paragraph (2) of this Article shall be subject to such exceptions or qualifications as may be prescribed in the interest of national security or public policy."

The expression "prescribed" is defined in Article 137 (1) (of their Constitution) as meaning: "provided by or under an Act of Parliament [Sic of the Bahamas]." The provisions of that Constitution contemplate that they will be supplemented by legislation which will provide machinery for applying for and granting registration as a citizen of the Bahamas, in a certain way, namely by an "Act of Parliament." The act itself went beyond those powers, because under paragraph 7(e) of the Bahamas Nationality Act, it went on to say:

(e) .......or if for any other sufficient reason of public policy he [the minister] is satisfied that it is not conducive to the public good that the applicant should become a citizen of the Bahamas (at p 725).

Clearly the Act failed to define those circumstances and left it to the discretion of the Minister and it was not therefore in the terms of the Constitution "provided by or under an Act of Parliament". At p 729 their Lordships observed:

"Likewise it is not contrary to the Constitution to confer upon an executive authority or administrative tribunal jurisdiction to determine whether the circumstances described in the legislation exist in relation to any particular applicant, provided that in making the determination the principles of natural justice be observed. What Article 5(4) does not permit Parliament to do is to make the right of persons with Bahamian status to be registered as citizens of the Bahamas subject to the discretion of the executive branch of the Government. Yet that, in their Lordships' view, is the effect of the words from the last part of the proviso to section 7 of the Bahamas Nationality Act."

Likewise, in Vanuatu, what the Constitution does not permit Parliament to do by Article 57 (5) and 57(8) is to remove from the individual the protection of the rules of Natural justice as guaranteed under the Constitution, by a simple Act of Parliament. If that were so, Article 57(8) would read: ".............. shall not prevent such compulsory early retirement as may be decided by statute in order to ensure the renewal of holders of etc ......." So therefore, those rules of natural justice as enunciated in Ridge v Baldwin [1963] 2 ALL ER p 66 at 70 onwards, as stated by Lord Reid, do not only form part of the Common law of Vanuatu, but are written into the Constitution itself and preserved therein and cannot be ousted. Any decisions of an administrative tribunal or judicial tribunal given in breach of such principles would be null and void and for the same reasons given by their Lordships in Ridge v Baldwin (above).

I am further fortified in this interpretation of the Constitution of Vanuatu by two decisions of the Privy Council. The first is Minister of Home Affairs v Fisher [1979] UKPC 21; (1980) AC 319 at 329, in which their Lordships stated that the way to treat a Constitution on the Westminister 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".

Again the same court, but differently constituted, in Ong Ah Chuan v Public Prosecutor [1980] 3 WLR 855 at 864, in the Court's judgment delivered by Lord Diplock said:

"Their Lordships would give to .......the Constitution......... 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 p 865 his lordship goes on to say:

"In a Constitution founded on the Westminster model and particularly in that part of it which 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 incorporate 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."

It is submitted for the respondent that the laws of Vanuatu with regards to Public Service is the same as those that applied under the common law of England "that it remains valid to compare the system in Vanuatu with the system prevailing in Britain between 1968 and 1981. I was referred to Dunn v The Queen [1896] UKLawRpKQB 365; (1896) 1 Q.B. 166 where it was said:

"......Servants of the crown hold office only during the pleasure of the crown, except in cases where it is otherwise provided by statute ...."

and indeed that rule is repeated in a number of more modern cases: see Rodwell v Thomas [1944] KB 596; Riordan v War Office [1959] 1 WLR 1046, affirmed [1961] l WLR 210. As a general principle, that is true, but the Security of tenure of Public Servants of Vanuatu is guaranteed to them and has always been, since the birth of this nation, by its Constitution. For the reasons I have given above, that security cannot be lightly denied them, nor can a member of the Public Service be early retired lightly or simply because his face does not fit in any more, or by abusing the rules of early retirement to get around the security of tenure. In my view there must be valid reasons for such retirement and only after applying the rules of natural justice, namely by informing the person of an intention to early retire him, by providing him with the grounds upon which such retirement is sought and by providing him fairly with an opportunity to be heard in his own defence, and if, as it appears is the requirement before early retirement, to have an indication of the report made on him by his head of department so that he can refute any allegations made therein that are untrue or bias. This need not be done in a formal way, nor need the rules of evidence as applied in courts of justice be applied, but it must be done fairly and openly. Nor is there anything in the legislation of Vanuatu that says otherwise. There appears to be no written procedure that apply to compulsory retirement in Vanuatu save for those that have been given in evidence before me, namely:

1. A report made by the head of Department (or the Minister in the case of the head of Department) to the Public Service department;
2. The Public Service Department if it considers it valid sends it to the Public Service Commission;
3. The Public Service Commission then consults with the Prime Minister; and
4. Thereafter the Public Service Commission decides the issue fairly and independently and I would add;
5. After following the rules of natural justice.

In this particular case, it seems virtually all the steps as given above were ignored.

Article 57(2) of the Constitution states:

"only citizens of Vanuatu shall be appointed to Public Office. The Public Service Commission shall determine other qualifications for appointment to the Public Service."

Article 60 (1) states:

"The Public Service Commission shall be responsible for the appointment and promotion of Public Servants etc ...."

Article 60(4)

"The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions."

It was advanced at one stage by Learned Counsel for the respondent, although not with any great force or conviction, that Article 60(4) meant to include the supervisory powers of the court. That can only be right so long as the Commission is acting intra vires and legally. Every administrative act is either intra vires or ultra vires. If an act is ultra vires it is void see Ridge v Baldwin [1963] UKHL 2; (1964) AC 40; (1963) 2 All ER 66. Failure to give a fair hearing in breach of the rules of natural justice renders the decision void see Lord Reid p 171, Lord Pearce p 195. Indeed there is nothing new in this analysis of the law: see Short v Pool Corporation (1926) Ch 66, R v North Exp. Oakey [1927] l KB 491 at 503, 505 per Scrutton and Atkin LJJ where both held that a breach of natural justice is an excess of jurisdiction and the decision would therefore be void; see again Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CBNS 180. In both the case of Ridge v Baldwin (above) and in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 47; (a case which was held to apply here; see Kalo v Public Service Commission Civil Case No. 74 of 1987) the House of Lords has made it clear that "there are no degrees of nullity" and that errors such as bad faith, wrong grounds and breach of natural justice all necessarily involve excess of jurisdictions and are therefore a nullity. The court, therefore, is not in any way controlling or directing the Commission in the exercise of its functions, it is merely declaring the rights of the individual. If the action of the Commission is void, it is not an action at all and has no legal or administrative consequence.

As professor Wade puts it at p 466 of the 6th Edition of his work on Administrative law:

"In administrative law, natural justice is a well defined concept based on two fundamental rules of fairness, (1) that no man may be a judge in his own cause and (2) that a man must always be allowed to present his defence fairly."

In Fairmount Investment Ltd v Secretary of State for the Environment [1976] l WLR 1255 at p 1263 Lord Russell puts it this way:

"It is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles."

The court, therefore, presumes that these requirements are implied in the Act (or the Constitution) in the absence of indications to the contrary in the Act conferring the power or in the circumstances in which the Act is to be applied. This applies equally to the Constitution, which is the present expression of the nations aspiration to justice and fairness, since it enshrines those fundamental rights and freedoms it guarantees to its people.

It cannot be better put than in Wood v Woad [1874] UKLawRpExch 26; (1874) LR 9 EX 190; by Kelly C.B.:

"this rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matter involving civil consequences to individuals."

The Act, which governs the manner in which the principle enunciated in Fairmount Investment Ltd v Secretary of State for the Environment (above) applies and within which the Commission operates the powers granted it by the Constitution is the Public Service Act [CAP 129], the relevant section of which is section 4 as follows:

Section 4(1) Notwithstanding anything to the contrary contained in this Act or if any other law for the time being in force, for the purposes of ensuring the renewal of holders of public offices within the Public Service, the Commission after consultation with the Prime Minister may compulsorily retire any officer from the Public Service.
4(2) Notice of compulsory retirement shall be given by or on behalf of the Commission in writing to an officer to whom subsection (1) applies.
4(3) The notice referred to in subsection (2) shall state the day on which the officer to whom it is given shall be retired and shall not be less than 3 months after the day on which the notice is given to the Officer.

There is nothing within the legislation which, even if it could, and I doubt it, limit in any way the rules of natural justice which one can imply in every Act of Parliament.

Section 4(2) provides that the notice must be given in writing, section 4(3) provides for a date to be given when service is to be terminated and states that that date cannot be less than 3 months after the day that the notice is given. Section 6 provides as follows:

"6. For the avoidance of doubt where the provisions of sections 4 and 5 are inconsistent or in conflict with the provisions of the Employment Act [CAP 160], the provisions of those sections shall prevail to the extent of such inconsistency or conflict."

Section 49 of the Employment Act [CAP 160], provides for notice of termination of contracts as follows:

49(1) A contract of employment for an unspecified period of time shall terminate on the expiry of notice given by either party to the other of his intention to terminate the contract.
(2) Notice may be verbal or written, and, subject to subsection (3), may be given at any time.
(3) The length of the notice to be given under subsection (1) (a) Where the employee has been in continuous employment with the same employer for not less than 3 Years shall be not less than 3 months;
(4) Notice of termination need not be given if the employer pays the employee the full remuneration for the appropriate period of notice specified in subsection (3).

One can see immediately the differences between the two Acts. Under the Public Service Act, notice must be in writing and cannot be given orally, and the date of termination must be three months after the giving of the notice. There is no provision in the Public Service Act for payment in lieu of notice. It is submitted for the respondent that in fact all that is required by section 4(3) is that the party should be given his entitlement and 3 months payment in lieu and that it does not mean that the employment cannot be terminated forthwith. I would have thought that the Public Service Act is only too clear about it, the more so since it refers to the difference between the two Acts (namely the Public Service Act itself and the Employment Act) and states in terms that in that event, it is the Public Service Act that shall prevail: see section 6 of the Public Service Act. I would have thought without doubt, that any termination notice given otherwise then as strictly provided for under the Public Service Act, is ultra vires and void. Therefore any notice purported to be given by the Commissioner otherwise than in accordance with the Act is ultra vires and void. One obvious reason for that, would seem to me to give time to the Public Servant to adopt whatever legal recourse he might have prior to being prematurely retired. As we can see, one of those recourse would be to apply to the courts under the Constitution to have the decision to compulsorily retire the officer reviewed. There is also under the Staff Manual a complaints procedure set out in Chapter 9.12.1 onwards. I have no doubt that one of the purposes of the notice period would be to afford the officer the opportunity to avail himself of the procedures set out therein. By terminating his employment forthwith, he is also denied the opportunity to avail himself of such of the procedures as set out in those regulations. In fact in his letter dated 23rd March 1992, Mr Willie did try to avail himself of his right of Appeal. See Annex 4 to his affidavit of the 21st August 1992 - addressed to the Chairman of the Commission and copied to the Prime Minister, the Minister of Postal Service and the Director of Public Service Department. The only response which this solicited was a reply from the Chairman of the Commission pointing out that compulsory early retirement is not synonymous with a disciplinary decision or an allegation of inefficiency. His rights of appeal were just ignored. As a result of which Mr Willie wrote back on the 8th June and stated that he now proposes to challenge the decision in Court. He was left, it seems to me, with no other recourse open to him.

Those principles of natural justice as I have set out above have been held to apply in a number of other jurisdictions. Within the Common law system examples abound and it may be as well for me to mention a few here. It was held to apply in Nauru in Keke and Clodumar, Re Public Service Appeals (1987) 13 CLB p 35 a decision of the Nauru Supreme Court, in a case involving the dismissal of two Public Servants by the head of Public Service, it was stated:

"The Common law duty of fairness has not been displaced by the Constitution or by statute, and the Chief Secretary is required to observe all the recognised principles of natural justice when making his decision on such matters".

In Australia in Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-10; [1976] HCA 58; 12 ALR 379, Barwick CJ described as "fundamental and universal", "the Common Law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the powers". In Kioa v Minister for Immigration and Ethnic Affair (1985) 62 ILR 321 at 346, Mason J in delivering a judgment of the High Court of Australia said that the law had now developed to the point that it required "the clear manifestation of contrary intention" to oust the duty to accord procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations.

In Tonga, in a decision of the Supreme Court in Akilisi Pohiva (Nuku'alofa) v The Prime Minister of Tonga (1988) 14 CLB 1249; it was held that:

"The plaintiff had a legitimate expectation that before he was disciplined in any way, let alone dismissed, he would be given the opportunity to defend himself. He was denied that opportunity, and the decision - making process was flawed, and the decision itself was invalid; the decision to dismiss the plaintiff was taken in breach of the rules of natural justice and therefore void."

and a declaration to that effect was issued, and an award for damages was also made.

In a decision of the High Court of the Commonwealth of Dominica, in a case not totally dissimilar to the facts of this case in Shillingford, Darnell, v Public Service Commission and the Attorney General (1989) 15 CLB p 1168, the plaintiff had been a public officer holding a post on the permanent establishment of the Public Service for approximately 10 years. By letter dated 26 May 1982 and 7 July 1982 the Permanent Secretary informed the Plaintiff of the Government's decision to abolish the post and of the approval by the Public Service Commission of his retirement from the Public Service with effect from 1 July 1992. The high Court held that:

"before a public officer can be removed from office for whatever cause, the Commission must observe the principles of natural justice. The public officer must be given an opportunity to be heard so that even if the regulations empower the Commission to terminate the Plaintiff's appointment, it has not followed the rules of natural justice, and any decision arrived at is void and of no effect."

Similar principles were held to apply in the case of Shamsiah Binti Ahmad Sham v Public Service Commission (1991) 17 CLB p 438; a decision of the Supreme Court of Malaysia.

In a decision of the High Court of Trinidad and Tobago in Katwaroo v Commissioner of Police and another(1982) 8 CLB p 44, it was held, in a case where the plaintiff, whose fireams dealer's licence had been revoked without notice, that a declaration would issue to the effect that:

"The decision of the Commissioner of police .... whereby the Plaintiff's firearms user's licence was revoked is null and void and of no effect as being contrary to the established principles of natural justice by reason of the fact that no procedural steps in accordance with the principles of natural justice were taken before such revocation and no reasons were given for revocation of the said licence."

Another decision in line with the above cases was a decision of the Supreme Court of Western Samoa inVermeulen v Attorney General and others, (1986) 12 CLB p46; where it was held that:

1. On the evidence it was clear that the Public Service Commission had abdicated its independence in the matter and had yielded to the decision of the Prime Minister and his cabinet to stop the appointment of the plaintiff, and,
2. That the Commission of Inquiry had acted in breach of the rules of natural justice in not giving the Plaintiff the right to be a party to the Inquiry, and denying to him the opportunity to meet the various arguments which had been addressed to the Commission against his supposed suitability for appointment as Director of Health.

So therefore, to borrow a phrase from Williams J in Boulekone v Timakata Civil Case No. 90 of 1986 a decision of the Court of Appeal of Vanuatu, precedents abound for "the principles of natural justice as known and understood in the free and democratic world."

Therefore, applying those rules to the facts as I find them to be in this case. I hold and rule as follows:

1. The usual procedure as adopted by the Commission, that a report be placed by the head of Department, in this case the Minister of Post and Telecommunication, was never made and therefore it is not surprising that it could not have been communicated to the petitioner; besides he had a legitimate expectation that it would be.
2. The verbal report made to Mr Thyna (which he refused to enlarge upon save to say that he was applying government policy) by the secretariat of the Ministry of Post and Telecommunication, was not a report upon which he could or should have acted, and in any event the Petitioner would have been entitled to know its contents so as to answer any allegations made there, but he was never informed of it. I suspect, although I do not know, that it was no more than those contained in the second secretary's letter to Mrs Maria Crowby of the 27th February 1992 and would not have been valid grounds for compulsory retirement in any event, as they would have been based on political rather than efficiency grounds.
3. That the statement by Mr Thyna that he was implementing governmental policy is a derogation of duty on his part as he was plainly abdicating the independence of the Public Service Commission which had been entrusted to him, and the decision was no longer his own and was therefore ultra vires and void;
4. That the tone of the letter from the Honourable Acting Prime Minister dated 13th March 1992 to Mr Thyna requesting termination with immediate effect, would have been intimidating to someone like Mr Thyna, and I had an opportunity to observe him clearly in the witness box, and for the same reason as in 3. above, would have rendered his decision void; and more importantly;
5. That the purported notice itself was null and void for the reasons that I gave above;
6. That the fact that he was not informed of the grounds or reasons upon which it was sought to retire him, since the so called "verbal report" made by the secretariat of the Minister of Post and Telecommunication was never disclosed to him, is in itself a sufficient ground to make the decision null and void;
7. That none of the rules of natural justice were observed by Mr Thyna before terminating Mr Willie's employment and for that reason the decision is void.

May I point out that the purpose of judicial review, even under the Constitution, is not to examine the reasoning of the subordinate authority (here the Commissioner) with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process. In this particular case it was lamentably lacking in fairness and in breach of all the rules of natural justice. It follows that as stated in Vine v National Dock Labour Board [1957] AC 488 at 500, by viscount Kilmur L.C.; in a decision of the House of Lords:

"It follows from the fact that the plaintiff's dismissal was invalid that his name was never validly removed from the register and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here, the removal of the plaintiff's name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him. It is therefore right that, with the background of this scheme, the court should declare his rights.

Therefore it follows that the Petitioner's rights as guaranteed to him by the Constitution under Article 5(1) (d) and (k) and under Article 57(5) and 57(8) to a fair hearing according to the rules of natural justice were breached for the reasons I have stated in this judgment, and pursuant to the powers vested in this Court by Articles 6(2) and 53(1), I make the following declaration:

1. That the premature retirement of the Petitioner by the Commissioner was void and is in law a nullity; and if need be,
2. A writ of certiorari will issue from this Honourable Court to quash that decision, although I doubt the need for it as the decision is a nullity.
3. That since the decision was a nullity, Mr Willie has never been removed from his post in the Public Service of Vanuatu and was and is entitled to full remuneration from the date of his purported retirement on the 14th March 1992 to date and continuing, with restoration of all his rights and privileges including his rights to severance payment (his statutory rights) as if his employment had continued to this date uninterrupted. Any money paid to Mr Willie under the purported termination will be taken as an advance on salary and will be accounted for as such.
4. Public Servants in the service of the Republic of Vanuatu are entitled to the full protection guaranteed to them by the Constitution and should be removed only in accordance with the Constitution which guarantees to them that the rules of natural justice will apply. But it must also be born in mind that Public Servants must serve the Government of the day. They are advisers and no more, and have the duty to implement the policies of the government of the day. Should they fail in doing that, then they are likely to be disciplined and even dismissed. The law with regards to early retirement should not be subjected to abuse, nor is it valid to retire someone on the grounds that he supports one political party or another, as long as that person does not dabble in politics. Public Servants have a duty to remain politically neutral. That does not mean, of course, that they cannot exercise their right to vote for the party of their choice; what it means is that they must not allow their political affiliations to influence their duty to the government of the day in the service of the nation. If they do, they can likewise be disciplined and dismissed.

The matter does not end there. In his petition, the petitioner also prays for damages. The actions of the Commissioner, I have ruled, were ultra vires and therefore void. The result is that the petitioner is and remains a public servant with entitlement to his salary and pension rights. He has suffered no financial loss therefore as a result of the unlawful act. The question now to be answered is: Is the petitioner entitled to damages purely as a result of the breaches of statutory duties imposed on the Commissioner? In order to answer the question I must turn first to the Constitution.

Article 6 (2) states:

"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."

Article 53(2) states:

"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."

The powers reserved to the Supreme Court under Article 6(2) is to pay compensation, which implies restitution in the event of loss. The word compensation does not appear in Article 53 (2), but both Articles are sufficiently wide to entitle the Court to "make such order as it considers appropriate to enforce the provisions of the Constitution". In my view, this is drawn sufficiently widely as to entitle the Court, in an appropriate case, to order punitive damages, but there must be a limit within which such damages can be paid. I am greatly assisted here by the rules of the Common Law with regards to judicial review. I believe that there is a fair and proper parallel to be drawn between the two.

It is now well established that the Courts will not award damages against Public Authorities merely because they have made orders which turn out to be ultra vires, even where real financial loss has resulted. In order to obtain such damages, malice or conscious abuse must be proved. In Dunlop v Woollahra Municipal Council [1982] A.C. 158; where an Australian local authority had passed resolutions restricting building on a particular site without giving notice and fair hearing to the landowner and also in conflict with the planning ordinance, the Privy Council rejected the Owner's claim for damages for depreciation of his land in the interval before the resolutions were held to be invalid. It was held that "the well-established tort of misfeasance by a public officer" required as a necessary element either malice or knowledge by the council of the invalidity of its resolution. In New Zealand in Takaro Properties Ltd v Rowling [1978] 2 NZLR 314, a company failed in a claim for damages resulting from a minister's refusal of permission for it to obtain finance from a Japanese concern. The Minister's refusal was quashed as ultra vires, but it was held that this alone was not a cause of action. A leading case on the subject is a decision of the Court of Appeal in England in Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716. It involved a breach of Article 30 of the Treaty of Rome. A ministerial order had prohibited the import of Turkey meat from France, in breach of Article 30 which prohibits quantitative restrictions on imports. This was held unlawful by the European Court. Traders who had suffered losses under the ban then sued the ministry for damages. On preliminary issues it was held that they had no cause of action merely for breach of statutory duty. Likewise, there was no cause of action merely because the minister's order was unlawful: it could be quashed or declared unlawful on judicial review, but there was no remedy in damages. It was held that there would be such a remedy if it could be shown that the minister had abused his power, well knowing that his order was a breach of Article 30 and would injure the Plaintiff's business. The decisive factor is the establishment of bad faith or malice.

In short it can be said that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:

1. If it involves the Commission of a recognised tort such as trespass, false imprisonment or negligence;
2. If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons;
3. If the authority knows that it does not possess the power to take the action in question.

See professor Wade's work on Administrative Law at p 782, with which I respectfully agree (6th Edition).

It seems to me, that under the Constitution of Vanuatu, there is no reason to depart from those well tested and approved common law rules. Although the Constitution is sufficiently widely drafted to allow for punitive damages, in my view those damages can only be awarded in the context of civil proceedings for the above reasons. They are not to be confused with some sort of punishment or retribution as would be exacted in the context of criminal proceedings. An unlawful act, or an action which is ultra vires is not necessarily a criminal act (although a criminal act will certainly be ultra vires) and does not warrant damages as a mode of punishment. Therefore there appears to be no reasons to depart from the guidelines of the Common law rules when determining the question of damages in relation to breaches of Constitutional duties, and I propose to apply those same rules here.

In this particular case, there have been no torts committed nor has the petitioner established malice in the sense of spite or a desire to injure for improper reasons, nor did the Commissioner know that he did not possess the power to take the action that he did. It has not been established that he acted in bad faith as opposed to some sort of misconceived loyalty. I cannot and do not propose, therefore, to award any damages.

Since cost must follow the event the Petitioner is entitled to his cost from the respondent, to be taxed or agreed.

Dated at Port Vila this 25th day of March 1993.

CHARLES VAUDIN D'IMECOURT
CHIEF JUSTICE