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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE NO. 96 OF 1997
IER">IN THE MATTER
OF THE CONSTITUTION OF THE REPUBLIC OF VANUATUAND:
IN THE MATTER
OF THE VANUATU NATIONAL PROVIDENT FUND ACT [CAP. 189]BETWEEN:
PETER CHAN AND PAUL FRED
Joint Petitioners and Petitioner and ApplicantsAND:
HONOURABLE WILLIE JIMMY
First RespondentAND:
GOVERNMENT OF THE REPUBLIC OF VANUATU
Second RespondentCoram: Mr Justice Oliver A. Saksak
Counsel: Mr Mark Hurley for the Joint Petitioners and Applicants
Mr Jack Kilu for the RespondentsJER">JUDGMENT
Preliminary Matters
The Joint Petitioners and Applicants are Mr Peter Chan and Mr Paul Fred. Throt this judgment they will be referred to as "the ;the Petitioners".
The Petitioners have come to Court by way of a petition brought pursuant to section 218 of Criminal Procedure Code Act [CAP. 136]. The substance of the petition was heard on 22 August, 1997.
Facts
The Petitioners were appointed as members of the Board of the Vanuatu National Provident Fund (the VNPF). The appointment was for a period of 3 years effective from 21st October 1996. These appointments were published in the Gazette. They were made under the hand of former Minister of Finance Mr Shem Naukaut.
On 19th June, 1997 the successor of Mr Naukaut, the then Minister Willie Jimmy (the First Respondent) issued termination notices purporting to terminate the offices of each of the Petitioners.
Interlocutory Injunction
As a result of the First Respondent's action the Petitioners sought an interlocutory injunction to preserve their positions. The Court granted the interlocutory injunction by Order dated 23rd July, 1997.
Reliefs Sought
The Petitioners among others, are seeking declarations that-
(a) the purported termination notices issued to the Petitioners under the hand of the First Respondent on 19th June, 1997 are null and void.
(b) the appointments of each of the Petitioners to the VNPF Board are valid and remains in full force and effect until 21st October, 1999.
(c) the Petitioners offices as members of the VNPF Board for a period of 3 years cannot be declared vacant unless one or more of the criteria set out in section 3(3) of the VNPF Act [CAP 189] is satisfied, or unless the Petitioners resign.
Allegations of the Petitioners and Issues
The Petitioners allege that -
(a) the purported notices of termination purportedly rely upon the powers conferred on the First Respondent by Section 3(1) of the VNPF Act but that the First Respondent had failed to specify any grounds for declaring the Petitioners' offices vacant as required by Section 3(3) of the VNPF Act.
(b) the Petitioners were not informed of what allegations (if any) were or had been made against them and that the Petitioners were not given any opportunity to answer any such allegations.
(c) the Petitioners were not afforded sufficient opportunity for a fair hearing by the First Respondent.
(d) the actions or omissions by the First Respondent are ultra vires the VNPF Act and/or constitute administrative conduct that is unreasonable or undertaken for improper or unlawful purposes.
(e) there were two breaches of the Constitution of the Republic of Vanuatu by the First Respondent in that the following fundamental rights have been breached, namely:-
(i) the right to protection of the law; and
(ii) the right to equal treatment under the law or administrative action.
(f) the rules of natural justice have been breached in all circumstances.
The Evidence
The Petitioners relied on three sworn affidavits. Two affidavits are from the Petitioners themselves and one is sworn by Mr Din Van Than, the Chairman of the VNPF Board. Basically each of the Petitioners describes how he was appointed and how he was purportedly terminated and annexing the relevant notices of Appointment and Termination. I set out below these notices in respect of Mr Peter Chan as follows:-
(1)
"REPUBLIC OF VANUATU
VANUATU NATIONAL PROVIDENT FUND ACT [CAP. 189]
APPOINTMENT
IN EXERCISE of the power conferred upon me by section 3(1) of the Vanuatu National Provident Fund ACT [CAP. 189], I, SHEM NAUKAUT, Minister of Finance, hereby appoint -
PETER CHAN
as a member of the Vanuatu National Provident Fund Board for a term of three (3) years with effect from the 21st day of October, 1996.
MADE at Port Vila this 19th day of June, 1997
Signed: Hon. Shem Naukaut
Minister of Finance"(2)
"REPUBLIC OF VANUATU
VANUATU NATIONAL PROVIDENT FUND ACT [CAP. 189]
TERMINATION
IN EXERCISE of the powers conferred on me by Sections 3(1) of the Vanuatu National Provident Fund Act [CAP. 189], I, WILLIE JIMMY, Minister of Finance, hereby terminate the appointment of -
PETER CHAN
as member of the Board of Directors of the Vanuatu National Provident Fund with immediate effect.
MADE at Port Vila this 19th day of June, 1997
Signed: Willie Jimmy
Minister of Finance"Exactly the same notices were issued in respect of Mr Paul Fred. Although he has not produced his Appointment Notice, I take judicial notice of the fact that it was published in Gazette No. 26 of 28th October 1996.
The Respondent did not adduce any evidence either by affidavit or orally. In my view therefore the facts are not contested.
The Law
The relevant statutory provision to be considered by this Court is section 3 of the VNPF Act [CAP]. 189] which reads:-
"COMPOSITION OF THE BOARD
3. (1) The Board shall consist of -
(a) six members appointed by the Minister and who shall be -
(i) two persons employed by the Government one of who shall be representative of the Ministry responsible for Finance;
(ii) two representatives of employers not being persons employed by the Government or by the Board;
(iii) two representatives of employees not being persons employed by the Board; and
(b) the General Manager, ex-office member
(2) Subject to subsection (3) and (4) members of the Board other than the General Manager may be appointed for a term of 3 years or for such shorter period as the Minister may in his discretion in any case decide.
(3) If the Minister is satisfied that a member appointed under subsection (1)(a)-
(a) has been absent from 2 consecutive meetings of the Board without the written consent of the Chairman;
(b) has become insolvent;
(d) has been convicted of a crime involving moral turpitude; or
(e) is otherwise unable or unfit to discharge the function of a member;
the Minister may by notice published in the Gazette declare the office of the member vacant.
(4) A member appointed by the Minister in accordance with subsection (1)(a) may resign by giving not less than 30 days notice in writing to the Minister.
The Petitioners' Arguments And Submissions
The Petitioners arguments are twofold. First they say that according to law their appointments as members of the VNPF Board was and is for a period of 3 years commencing from 21st October 1996 and ending on the 21st October 1999. As such, they argue that they cannot be removed, replaced and/or terminated in any way except in accordance with the criteria stipulated in section 3(3) of the VNPF Act (the Act). They argue that the First Respondent's action or omissions were ultra vires the Act. Further that the First Respondent's actions constituted administrative conduct which was unreasonable and undertaken for improper or unlawful purposes.
Secondly the Petitioners say that their Constitutional rights to protection of the law and to equal treatment under the law or administrative action were infringed by the action the First Respondent.
In relation to the first part of the Petitioners argument, Mr Hurley submitted that section 3(1) of the Act gives no power to the Minister to terminate the Petitioners from their offices as members of the VNPF Board.
The Respondents Arguments And Submissions (As regards the First Part)
The Respondents admit that each of the Petitioners were appointed for a period of 3 years commencing from 21st October 1996. But the Respondents say that the termination notices dated 19th June, 1997 were duly replaced by subsequent termination notices issued under the hand of the First Respondent which were dated 25th July, 1997.
Further, the Respondents say that the First Respondent had relied upon the powers conferred on him by Section 21 of the Interpretation Act [CAP. 132] in conjunction with Section 3(1) and (3) (e) of the VNPF Act in issuing subsequent termination notices dated 25th July, 1997. Further, the Respondents say that the First Respondent had in the vacancy notices dated 25th July 1997 specified grounds for such termination in the said notices.
The Courts Findings In Relation to the First Part of Argument
Applying Section 3 of the VNPF Act to the facts in evidence before the Court I find and rule as follows:-
(a) That subsequent termination notices issued by the First Respondent dated 25th July, 1997 to the Petitioners are not in evidence before this Court, therefore I reject the Respondents' submissions in that regard.
(b) The vacancy notices issued by the First Respondent dated 25th July, 1997 which the Respondents say contain the grounds for terminations of the Petitioners' Offices are also not in evidence before this Court, therefore I reject the Respondents' submissions in that regard.
(c) There is no document in evidence before this Court which makes reference to powers of removal under section 21 of the Interpretation Act [CAP. 132] therefore I rule that Section 21 of the Interpretation Act is not applicable and will not be considered in any way by this Court in the determination of this matter.
(d) Section 3(1) of the Act does not empower the First Respondent to issue the termination notices dated 19th June, 1997. Further section 3(1) is only an appointment provision and cannot be construed as giving a discretion to the Minister to terminate where circumstances require that the discretion should be exercised. Section 3(1) cannot be construed in that manner because of the qualifications specified in Section 3(3) of the Act.
(e) The term of appointment of the Petitioners was and is definite. It is for a period of 3 years from 21st October 1996. It can be no more no less than that period except if and when it is brought to an end in accordance with the criteria specified in Sections 3(3) and 3(4) of the VNPF Act.
Before moving on to the Second part of the Petitioners argument I wish to provide further reasoning for my ruling in (e) above. I ask myself this question: What was Parliament's intention of having Section 3 in the VNPF Act? Examining the whole Act I find that the VNPF Act was passed by Parliament in 1986 as Act No.1 of 1996. The Government in 1986 was different from the Government today in that in 1986 it was a one-party government of three parties governing together. Article 16(1) of the Constitution of Vanuatu reads:
"Parliament may make laws for the peace, order and good government of Vanuatu."
There can be no doubt that the VNPF Act No. 1 of 1986 [CAP. 189] was enacted for that purpose. The Courts have been reluctant to define what is meant by the phrase "peace, order and good government" because of the English authority of Chenard -v- Arissol (1949) AC 127 followed in President Timakata -v- Attorney General 2 VLR 575 at pp 585-587 and referred to in Dinh Van Than -v- Willie Jimmy & Ors, Civil Case No. 101 of 1997 at p.8 But this position has got to change. Vanuatu cannot continue to remain in the dark. It is time that the Courts have got to shade some light into these dark areas of legal development.
Coming back to my question as to what the intention of Parliament was in 1986 in relation to the VNPF Act and in particular Section 3 of the said Act. In my considered opinion the intention of Parliament could not be anything more than what is stated in that section itself. Where Parliament gave powers to a Minister to appoint members of the VNPF Board for a specified period under Section 3(1) and (2), that is the period the members have to serve. Unless they resign under section (4) or are "disqualified" under section 3(3) it is Parliament's clear intention that members serve for 3 years. Why is this so? The answer is to be found in analysing the provisions of the VNPF Act in the following paragraph.
The Vanuatu National Provident Fund is established under Section 14 of the VNPF Act. It is a fund into which are paid all contributions by both employers and employees and out of which payment of benefits are made to employees. The fund has a Board which is the trustee of the Fund.
Section 15 of the VNPF Act reads:-
"The Board shall be the trustee of the Fund."
All moneys belonging to the Fund are to be used or invested by the Board in the manner as specified under Section 16 of the VNPF Act which reads:-
"The moneys belonging to the Fund shall be invested with policy guidelines approved by the Minister for the time being responsible for finance and by the Reserve Bank of Vanuatu after consultation with appropriate departments of the Government which will have primary regards to the interests of members on the one hand, and the needs for assisting the financing of balanced social and economic development on the other. Such investment guidelines shall have regard into the need for a balanced portfolio bearing in mind the need for sufficient Vatu liquidity, prudent diversification and rates of returns on the various sources of investments."
To enable and ensure proper, efficient and stable management, use and investment of employees' moneys in the Fund under the provisions of Section 16 of the VNPF Act, Parliament intended that members of the VNPF Board being trustees when appointed by a Minister whether for 3 years or for a shorter period, should serve for the period of appointment specified. Otherwise, the spirit of Section 16 of the VNPF Act would be defeated.
The spirit of this provision has remained the same since the enactment of the Act in 1986. The problem is the policy and in my considered opinion this is what is causing the difficulty in the current situation. To implement policies which is not in line with the spirit of Section 16 of the Act is an impossibility. It cannot be done unless and until Parliament which enacted the legislation amends it. What was workable in 1986 in view of the present situation is not longer workable, but that does not give right to the Minister of the day to terminate, remove dismiss or replace members of the VNPF Board in any manner or at anytime he feels like it. Ministers of State like all other higher officials and holders of public offices have taken two different Oaths as follows:-
"Oath of Allegiance
(1) I, ..............., do swear that I will well and truly serve and bear true allegiance to the Republic of Vanuatu according to law.
So help me God." (Underlining, mine)
"Oath of Allegiance
(2) I, ................, do swear that I will bear true faith and allegiance to the Republic of Vanuatu and will uphold the Constitution and the law, and I will conscientiously, impartially and to the best of my ability discharge my duties as ......... and do right to all manner of people without fear or favour, affection or ill-will.
So help me God" (Underlining, mine).
The taking of these Oaths are required under the Provisions of the Oaths Act [CAP 37].
In summary this is what both promises mean in effect. Firstly, that Ministers of State are to serve for the best interest of Vanuatu according to law. Secondly, that Ministers of State in their service must uphold or respect the Constitution and the law. Thirdly, in their service, they forget their personnel interests but render service for the good of all people without discrimination.
In the present case I find that Section 3 of the VNPF Act has not been respected by the First Respondent. And I find that the First Respondent has made a public mockery of his Official Oath and Oath of Allegiance. And I conclude that the First Respondent could not and cannot do what he purportedly did unless and until the law is first amended by Parliament to suit the current situation in Vanuatu. I am therefore unable to accept the Respondents' submission that the First Respondent acted in his Constitutional duty to terminate the Petitioners. I accept Mr Hurley's submission that the VNPF Act gives no power to the Minister to terminate the Petitioners in the way that he has done.
Breach of Fundamental Rights
The second part of the Petitioners' argument involves allegations of breaches of their Constitutional right to protection of the law and equal treatment under the law or administrative action. These are enshrined in Article 5 of the Constitution which reads-
"FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL
(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety public order, welfare and heath -
(a) ...;
(b) ...;
(c) ...;
(d) protection of the law
(e) ...;
(f) ...;
(g) ...;
(h) ...;
(i) ...;
(j) ...;
(k) equal treatment under there law or administrative action ..."
Mr Hurley submitted that the Petitioners were not afforded rules of natural justice in that they were not informed of the reasons for termination. The established principle that the requirement for written reasons does not form part of the rules of natural justice is enunciated in cases like McInnes -v- Onslow Fare (1978) 3 All ER 221; Public Board of New South Wales -v- Osmond (1986) 159 CLR 656 at 662; Sharp -v- Wakefield [1891] UKLawRpAC 8; (1891) AC 173 at 183, Padfield -v- Minister of Agriculture, Fisheries and Food [1968] AC 979 and the majority decision in the Court of Appeal in Breen -v- Amalgamated Engineering Union (1971) 2 QBD 175. These cases were considered and followed in Dinh Van Than -v- Willie Jimmy - Civil Case No. 101 of 1997. In my judgment in that case I indicated that I was in favour of the dissenting views of Lord Denning in the Breen case (supra) at p.90 in which the Master of the Rolls said:
"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 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 (supra) which is a land mark in modern administrative law ... 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 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 to be heard, no explanation need be given. But if he is a man whose property is at stake or who 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 be. The giving of reasons is one of the fundamentals of good administration" (emphasis, mine)
Professor Wade recognises that well established principle but submits as follows:-
"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 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 reasons behind the decision, he may be unable to tell whether it is revisable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore indispensable part of a sound system of judicial review .... It is also a healthy discipline for all who exercise power over others." (see Wade's Administrative Law, 6th Edition, 547-550) (emphasis, mine)
In my judgment in Dinh Van Than's Case (supra), I said this at pp. 12-13:-
"But was the letter of 18th July sufficient? I think not. In Vanuatu there is what is called the "nakamal way". Writing has never been the Vanuatu way, this has been introduced. The Vanuatu way is the "nakamal way" which involves summoning a person to be affected by one's decision into one's office and talking things over with him. In my considered opinion substantial justice requires that such should have been the right course of action to have been taken by the Minister. I say this only because I am very much in favour of the dissenting judgment of Lord Denning in the Breen Case and the submission by Professor Wade which I have cited above. Had it not been for the strong line of established cases which I have cited above, I would have easily found that the Petitioner was not afforded natural justice and procedural fairness because he was not summoned in the "nakamal way". But until the situation is changed. I uphold the common law as it stands on the issue."
Mr Hurley did not furnish the Court with the update position in the Dinh Van Than case (supra) but has done so in the present case by referring to the case of Picchi -v- Public Prosecutor App Case No. 4 of 1996, AG -v- Timakata (1993) 2 VLR 679 App Case No. 1 of 1993, Public Service Board of NSW -v- Osmond (1986) 159 CLR 656, E -v- Crown Court at Harrow ex parte Dave [1994] 1 All ER 315, and R -v- Civil Service Appeal Board [1991] 4 All ER 310 at 318.
Mr Hurley submitted that the position has now changed to reflect the dissenting views of Lord Denning and the submission of Professor Wade.
Mr Kilu arguing for the Respondents submitted that the Petitioners did not have the right to a hearing and that they were not entitled to allege breaches of rules of natural justice. Mr Kilu acknowledged the land mark case of Ridge -v- Baldwin [1963] UKHL 2; [1964] AC 40 in which the House of Lords said that where power affects rights it must be exercised fairly; the right of hearing must be given. Mr Kilu further acknowledged the decision of the Privy Council in A6 -v- Ryan [1980] AC 718 in which the Privy Council said -
"... the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so, it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and if he fails to do so, his purported decision is a nullity."
But Mr Kilu submitted that Baldwin's and Ryan's cases only laid down the general principles of law. He submitted that there were exceptions where the right to a hearing may be excluded. These are:-
(i) where urgent action has to be taken to safeguard public health or safety. His authorities were White -v- Redfurn [1879] UKLawRpKQB 73; (1879) 5 QBD 15 and R -v- Davey [1877] UKLawRpKQB 19; (1899) 2 QBD 301.
(ii) where there is an absence of legitimate expectation. His authority was Schmidt -v- Home Secretary [1969] 2 Ch. 149.
(iii) where a hearing would make no difference. His authority was Malloch -v- Aberdeen Corp. [1971] 1 WLR 1578
(iv) where for special reasons the Courts exercise their discretion to refuse hearing even though there has been a clear violation of natural justice. His authority was Cinnamond -v- Airports Authority [1980] 1 WLR 582.
(v) where the rule applies that employees can be dismissed at pleasure. His authority was Ridge -v- Baldwin (supra)
(vi) where for reasons of national security the right of hearing is excluded. His authority was Council of Civil Service Unions -v- Minister for the Civil Service [1985] AC 374.
(vii) situations concerning deportation, refusal of entry and so father of aliens. He referred to the case of R -v- Leman Street Police Station Inspector [1920] 3 KB 72.
(viii) situations where a legislation is to be made, there is no right to be heard before making of such legislation. He referred to Bates -v- Lord Hailsham [1972] 1 WLR 1373.
Conclusions As Regards Natural Justice And Right of Hearing
Weighing these submissions and the supporting authorities provided with the evidence before the Court I make the following findings and rulings:-
(i) I accept the shift in position as regards the requirement of giving reasons and giving an opportunity to be heard to persons affected by decisions of authorities based on the legal authorities provided by Mr Hurley at p. 14 of this judgment.
(ii) I am satisfied that the Petitioners were not summoned in the "nakamal way" and I uphold my speech in Dinh Van Than's Case concerning this aspect at pp 12-13 quoted at p.14 of this judgment.
(iii) I acknowledge the general principles of law in Ridge -v- Baldwin (supra) and AG -v- Ryan (supra) and the exceptions as submitted by Mr Kilu. I reject the submissions as regards the exceptions by Mr Kilu and give the following reasons:-
(a) Exception (i) - There is no evidence before the Court by the Respondents showing an urgent action taken by the First Respondent to safeguard health or safety.
(b) Exception (ii) - There is clear evidence of legitimate expectation which is at issue in this case. Both Petitioners were appointed expressly for a period of 3 years from 21st October 1996. That period is in accordance with the provision in Section 3(2) of the VNPF Act. The Petitioners' period of tenure of office was 3 years. It was a tenure protected by law. That being so it was their legitimate expectation that they should serve for that expressed period.
(c) Exception (iii) - A hearing would have made the difference in that -
(a) it would have given the Petitioners an opportunity to know whether or not they had a reviewable case in the event that a decision was taken: (see Wade - quoted at p; 16 of judgment)
(b) it would indicate or be a gesture of good faith and an adherence to the provisions of the Official Oath to which the First Respondent had promised to discharge his "duties as Minister of State and to do right to all manner of people without fear, favour, affection or ill-will".
(d) Exception (iv) - The Respondents have not produced evidence showing any special reasons for which the Court could refuse a right of hearing.
(e) Exception (v) - The principle of law in Ridge -v- Baldwin [1963] UKHL 2; [1963] 2 All ER 66 concerns the relationship of Master and Servant. The Respondents have not produced any evidence showing a contract between the Petitioners and the First and Second Respondents. This is a case where the Petitioners had special rights guaranteed to them by section 3(2) of the VNPF Act and that right cannot be removed from them save as provided under the Statute itself. See the speech of the Honourable Mr Justice Vaudin d'Imecourt in Peter Taurakoto -v- Hon. Romain Batick & Ors, Civil Case No. 107 of 1992 2 VLR 620 at p. 625 where his Honour said:-
"The point being that in the ordinary case of Master and Servant, the repudiation or wrongful dismissal terminates the contract giving rise to a claim in damage, whereas where the servant has a special right guaranteed to him by Statute, that right cannot be removed from him save as stipulated in the Statute itself."
(f) Exception (vi) - The Respondent have not produced any evidence showing prejudice to national security to warrant exclusion of the right to be heard.
(g) Exception (vii) - R -v- Leman Street Police Station Inspector (supra) was a case involving alien subjects. The present case involves rights of citizens distinguishing it from the former case.
(h) Exception (viii) - The VNPF Act is not in my view a legislation which was intended that no right to be heard be afforded. Section 3(3) of the VNPF Act specifically says that if the Minister SATISFIED that any member appointed by him under Section 3(1) is found wanting upon any of the five criteria specified therein, he may publish a notice of vacancy. The term "satisfied" there used suggests to me that before the Minister can reach his conclusion there are certain things encumberned [sic] on him to do. He should demand proof of any allegations by calling for documents or witnesses. He should go as far as summoning the appointee to ask him to explain himself. That is a gesture of healthy discipline and good administration.
For the reasons expounded above, I am satisfied that the Petitioners were not afforded the right to be heard and as such the rules of natural justice were breached by the First Respondent in not giving reasons for his actions.
I now move on to consider another issue. I proposed to deal with it under the Heading:
Did the Minister (the First Respondent) Act Reasonably?
Mr Hurley submitted on behalf of the Petitioners that it is a requirement on public authorities that they must act reasonably. Mr Hurley submitted that Ministers of State are included. His legal basis was the case of R -v- Civil Service Appeal Board (supra).
Mr Kilu conceded to this submission in paragraph 3.39 of his submissions in which he said: "Those public authorities who are required to act reasonably include Ministers." His legal authorities were Commissioner of Customs -v- Cure and Deely Ltd [1962] 1 QBD 340, Badfield -v- Minister of Agriculture (supra) Secretary of State -v- Thameside Metropolitan Council [1972] AC 1014.
Mr Kilu also referred to Kruse -v- Johnson [1876] UKLawRpKQB 98; (1898) 2 QBD 91 which is authority for saying that the Courts require statutory powers to be exercised reasonably and in accordance with the spirit as well as the letter of the empowering Act. And the Courts will condemn offending acts because the Courts assume that Parliament cannot have intended to authorise unreasonable actions which are therefore ultra vires and void.
Mr Kilu acknowledges that the requirement to act reasonably is a well established principle dating back to the case of Rook (1598) 5 Co. Rep. 996 in the 16th Century. In 1983 the House of Lords confirmed Rook's Case in Browley LBC v. Greater London Council (1983) 1 AC 768. In that case the House of Lords said -
"A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must by the use of his reason, ascertain and following the course which reason directs. He must act reasonably."
Mr Kilu the went on to say that what the law was saying that the notion of absolute or unfettered discretion is rejected. He argued that statutory powers conferred for public purposes is conferred upon trust and the Courts must allow it to be used in a reasonable manner for the benefit of the public as can safely be presumed to have been intended by the empowering Act. Then he argued that under section 3(3) (e) of the VNPF Act the First Respondent had wide discretionary powers and that those powers were conferred on trust, which meant that the Minister is bound by law to exercise the powers in the best interest of the people. Mr Kilu then gave the reasons for the First Respondent's action in these words:-
"He therefore has terminated the Petitioners because he has ascertained on reasonable grounds that whilst the Petitioners who are National United Pati (NUP) political appointees remain in the Board, the implementation of Government policies for the benefit of the public will be frustrated. The Minister is therefore not doing what he likes but doing what he is by reason directed to do and what he is bound by law to do."
Further at paragraph 3.52 the Respondents say this:
"In this instant case, the Respondents submit that it is reasonably intended in the policy and object of the VNPF Act that the Minister in exercising his discretionary powers should be able to terminate the Petitioners who are NUP politician appointees in order that full and effective implementation of public policies imposed by the UMP Government Minister can be fully attained in the interest of the public. Whilst the Board remains composed of NUP political appointees, the Minister cannot fully implement Government policies and as such he is failing to perform his public duty and therefore depriving the people or the members of the Fund of a remedy that Parliament intends that the people must have. He is also constitutionally bound to do so. His action therefore are reasonably intended within the policy and object of the Act and cannot be regarded as capricious or extravagant decision."
After citing the cases of Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation[1947] EWCA Civ 1; [1948] 1 KB 223 and Tameside case (supra) and Council of Civil Service Unions -v- Minister of Civil Service [1985] AC 410, Mr Kilu submitted as follows at paragraph 3.55:-
"In this present case, the Respondents submit that the action of the Minister in terminating the Petitioners on grounds of their political status as NUP political appointees in the interest of the public as safely implied by the VNPF Act and required by the Constitution is not an unreasonable act within the meanings of "unreasonableness" as stated by their Lordships (in the cases) above. It cannot be said that no sensible person could have taken the view that the Minister took to terminate the Petitioners. In fact what the Minister did has been established practice of past successive governments faced with these very same situations where Government policies in the interest of the public cannot be fully and effectively implemented due to political appointees from different party in the Board of Directors and similar action has to be taken to terminate them. The Minister's action is not "so absurd", "so wrong" or "so outrageous in its defiance of logic" that no reasonable person in the Minister's position could not have arrived at the same decision. In fact any other Minister in this position would no doubt have taken this very same action as the present Minister. The Respondents submit therefore that his actions are reasonably within the arm-bit of the VNPF Act and the Constitution and therefore valid".
My Findings
Weighing these submissions in the light of the evidence and considering the authorities referred I find as follows:-
(i) The submissions of the Respondent contain some facts which needed to be supported by further evidence. The Respondents produced no evidence whatsoever either orally or by affidavit.
(ii) The reasons for termination of the Petitioners as disclosed by the Respondents are irrelevant, unlawful and unconstitutional. No unreasonable person in authority should dare use them to defend their actions in such similar cases. By virtue of Article 5(1) of the Constitution, discrimination on the grounds of political opinions is clearly not allowed. It is abundantly clear that the Petitioners have became victims of 'political discrimination'.
(iii) The policy guidelines as required under Section 16 of the VNPF Act should be a policy approved by the Minister after consultation with the Reserve Bank of Vanuatu and after consultation with appropriate Government Departments. There is no evidence of such policy before the Court and therefore I am not able to accept the Respondent's submission that the Minister's action in terminating the Petitioners was in the legitimate interest of the public.
(iv) I accept the legal authorities referred to me which establish the legal principle that public authorities including Ministers of State have a duty to act reasonably in exercising their discretionary powers under the empowering Acts. Guided by those legal authorities I am satisfied that in Vanuatu a Minister of State is by virtue of his Oath of Allegiance and Official Oath taken pursuant to the provisions of the Oaths Act [CAP. 37] is bound by law to act reasonably of his discretionary powers.
(v) Here, the Minister has discretionary powers under Section 3(3) of the VNPF Act but I am satisfied that he can only exercise those powers in accordance with the law. And here the relevant law is Section 3(3).
(vi) Here, I am satisfied that the Minister acted unreasonably when he purportedly terminated the Petitioners on political grounds.
(vii) Here, I am satisfied that the Minister acted ultra vires the VNPF Act.
Was the Minister Acting within His Constitutional Duty?
Now I need to consider this issue of whether or not the First Respondent in so acting, did so in his Constitutional duty. Mr Kilu for the Respondent submitted that the Minister did act pursuant to his Constitutional duty. First he referred the Court to Article 42(2) of the Constitution under which the Prime Minister allocated the ministerial responsibility to the Minister for the due performance and exercise of the executive power of the people. Secondly Mr Kilu referred to Article 39(1) of the Constitution which reads:-
"The executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and the Council of Ministers and SHALL BE EXERCISED AS PROVIDED BY THE CONSTITUTION OR A LAW" (Emphasis and underlining, mine).
Mr Kilu then submitted that the first Respondent must exercise the executive power of the people as expressed or laid out in the general policy and object of the VNPF Act. He emphasised that the First Respondent is Constitutionally bound to exercise the general control and management of the Fund in the best interest of the members of the Fund and Vanuatu as a whole.
I have already found that there is no evidence before the Court relating to the general policy and object of the VNPF Act which has been approved by the Minister in consultation with the Reserve Bank and appropriate Government Departments. I reject this submission partly for this reason. But further in my judgment Article 39(1) is very clear. An exercise of executive power SHALL BE EXERCISED AS PROVIDED BY THE CONSTITUTION OR A LAW." With this provision clearly the Respondent's argument and submission is not sustainable and is therefore rejected.
Finally Mr Kilu submitted that when interpreting a law, the Court must be guided by Section 8 of the Interpretation Act which reads:
"An Act shall be considered to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent meaning and spirit."
I have already dealt with this issue on pages 9-12 of this judgment and I need not deal with it again.
Final Findings And Conclusions
From all that has been said above my final findings and conclusions are as follows:-
(1) The First Respondent's actions or omissions constituted administrative conduct which were and are ultra vires the VNPF Act.
(2) The First Respondent's actions or omissions constituted administrative conduct which were and are unreasonable unlawful and unconstitutional.
(3) The First Respondent has breached the rules of natural justice in all the circumstances of the case.
(4) The First Respondent has breached the Petitioner's Constitutional rights to the right to protection of the law and the right to equal treatment under the law or administrative action.
DECLARATIONS AND ORDERS
IT IS HEREBY DECLARED AND ORDERED THAT:-
(1) The purported termination notices issued to the Petitioners under the hand of the First Respondent made at Port Vila on 19th June 1997 are null and void. The termination notices are hereby accordingly quashed.
(2) The appointment of each of the Petitioners to the Board of the VNPF as members of the VNPF Board is valid and remains in full force and effect. Each Petitioners is and remains the holder of their respective Statutory offices.
(3) The Petitioners' Offices as members of the VNPF Board for a period of 3 years with effect from 21 October 1996 cannot be declared vacant unless-
(i) one or more of the criteria as set out in Section 3(3) of the VNPF Act is satisfied;
(ii) the Petitioner resigns under Section 3(4); or
(iii) the VNPF Act is amended by Parliament to provide otherwise.
(4) The Respondents are to pay the Petitioners' costs of the proceedings to be taxed if not agreed.
DATED at Port Vila this 24th day of September 1997.
BY ORDER OF THE COURT
OLIVER A. SAKSAK
JUDGE
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