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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCivil Jurisdiction
CIVIL CASES No. 140 & 144 OF 1996
BETW>BETWEEN:
CHARLES VAUDIN D'IMECOURT
Petitioner/ApplicantAND:
JEAN MARIE LEYE LENALCAU MANATAWAI
President of the Republic of Vanuatu
First RespondentAND:
ATTORNEY GENERAL
Second RespondentAND:
HILDA LINI
Third RespondentAND:
CHAIRMAN OF THE PUBLIC SERVICE COMMISSION
Fourth RespondentAND:
CHIEF NOEL MARIASUA
Fifth RespondentAND:
Minister of Foreign Affairs
THE HON. WILLIE JIMMY
Sixth Respondent
Cl : Susan Botn Bothmann-Barlow for the Petitioner
&nbssp; &nsp; &nbbp;&nnbsp; &nb Jack So/i>Solicitor-General, for the Respondents
Hearing : 15 & 16 September 1998
Introduction
The petitioner was, at all relevant times up to the events to which these proceedings relate, the Chief Justice of the Republic of Vanuatu. On 21 and 22 October 1996, he was served with two notices, signed by the sixth respondent as Minister of Foreign Affairs and Immigration, declaring the petitioner to be an undesirable immigrant.
On 31 October 1996, the then President of the Republic of Vanuatu issued a constitutional instrument, pursuant to which the appointment of the petitioner as Chief Justice was terminated as from the date.
By a motion issued pursuant to leave granted the petitioner seeks an order by way of certiorari quashing the prohibited immigrant order. By a constitutional petition or alternatively by an application pursuant to leave granted, the petitioner seeks orders quashing the Constitutional Instrument.
The third, fourth and fifth respondents are parties to the action in their capacities as members, along with the petitioner, of the Judicial Service Commission.
The proceedings were initially issued out of this court on or about 3 November 1996. I do not oppose to describe the long, tortuous, and slow process that have occupied the intervening 22 months. That such an important constitutional case has taken so long to reach a final hearing reflects no credit on the parties or the manner in which cases, or at least this case, has been handled in this court. The attempts to prolong the process did not end when these proceedings finally came before the court at 9.00am on 15 September for a hearing. Counsel for the respondents then sought an adjournment. That application was refused for reasons set out in the minute of that date. I am also surprised to note that, despite the time during which these proceedings have been in the court, no respondent has filed any pleading or response to the original petition, the amended petition or the application prerogative writs. Some affidavits have been filed on behalf of the respondents in the interlocutory proceedings, but there are no formal documents setting out the nature of the respondents’ defences.
During the first day I heard submissions from Ms Bothmann-Barlow for the petitioner. Mr Kilu was present on behalf of the respondents. When those submissions were completed, I adjourned to 3 pm the following day, to enable Mr Kalsikau to make submissions for the respondents. When the court resumed at that time, there was no appearance for the respondents. The hearing then concluded. There has been no subsequent application on behalf of the respondents to reopen the hearing to enable submissions to be made for the respondents. I have written this judgment without the benefit of any submissions from the respondents.
The factual background
The petitioner arrived in Vanuatu on 9 May 1992 to take up his appointment as Chief Justice of the Supreme Court of the Republic of Vanuatu with the effect from 11 May 1992. The petitioner was at that time a barrister in practice in London. The appointment was initially for 2 years. His salary was supplemented by the United Kingdom Government as part of a bilateral agreement between that government and Vanuatu.
In March 1994, he was informed by the then British High Commissioner that the United Kingdom had agreed to extend his contract for a further period of 1 year. An additional year negotiated with the Agence de Cooperation Culturelle et Technique. That contract was due to end in May 1996.
As a result of discussions between the petitioner and the Honourable Father Walter Lini, then Minister of Justice, in January 1996, an agreement dated 3 February 1996 was entered into between the Government of Vanuatu and the petitioner pursuant to which his contract was extended for a further two years to 1 June 1998, on substantially the same terms and conditions.
Following the general elections held on 30 November 1995, there was a change of government. During 1996, it appears that relations between the petitioner and some members of the then Government became somewhat strained. Mr Justice Kent, another Judge of the Supreme Court had, on 5 May 1995, compiled a very lengthy report containing a large number of allegations adverse to the petitioner. In February 1996, not long after the Honourable Walter Lini had entered into the agreement extending the petitioner’s contract of employment, he, on or about 22 February 1996, also compiled a lengthy report containing criticisms of the petitioner’s performance in his roll as Chief Justice. On 3 October 1996, a report from a dissatisfied litigant Gilles Daniel dated 2 May 1996 was received. This too made complaints concerning the petitioner’s judicial performance.
On Monday 14 October 1996, the petitioner attended a meeting of the Judicial Service Commission, a body set up by Article 48 of the Constitution. Its members are the Minister responsible for Justice as Chairman, the Chief Justice, the Chairman of the Public Service Commission and a representative of the National Council of Chiefs appointed by the Council. I return to the events of that meeting in more detail later.
At 2.05pm the next day, Tuesday 15 October 1996, there was delivered to the petitioner a letter, signed by the Honourable Serge Vohor as Prime Minister and the Honourable Hilda Lini as Minister of Justice, addressed to the petitioner. It was in these terms :
"Re : TERMINATION OF CONTRACT
We write to inform you that the present Coalition Government has strong intention of terminating your contract. This termination would be based on allegations contained in the Kent Reports, the Independent Reports to the International Commission of Jurists by Honourable Walter Lini, other independent reports and complaints relating to recent events.
These reports are before the Judicial Service Commission to consider and decide separately from the Government.
In the light of the above we therefore invite you to either resign voluntarily of terminate the contract under Clause 7(b) ; or the government is ready to terminate the contract.
We would be grateful for your response before three o’clock today."(sic)
The petitioner did not reply. At about 5.20pm that same day, the petitioner received a further letter addressed to him, signed by the same two persons, in these terms :
"Re: TERMINATION OF CONTRACT
Following our decision in our earlier letter to you and not having received a reply and following the decision of the Council of Ministers on Monday 14th October we write to advise you that your contract with the Government of the Republic of Vanuatu dated 3rd February, 1996 has been terminated with effect from 14th October, 1996.
The termination of your contract is based on grounds of gross misconduct contained in the Kent Reports, the Independent Report to the International Commission of Jurists and Others and your intention to undermine the Agreement signed between the Vanuatu Government and the VMF Stand-down Group by issuing a Warrant of Arrest prior to the full enquiry being carried out.
Accordingly you have no entitlements under the contract except for any outstanding leave earned and not taken which will be paid.
We take this opportunity to thank you for the services you have rendered to Vanuatu and we wish you well in your future endeavours."
On 21 October 1996, the petitioner received a declaration that he was an undesirable immigrant. It was over the signature of the sixth respondent, the Honourable Willie T. Jimmy, Minister of Foreign Affairs and Immigration. It read :
"REPUBLIC OF VANUATU
IMMIGRATION ACT [CAP 66]
DECLARATION OF UNDESIRABLE IMMIGRANT
IN EXERCISE of the powers conferred on me by Section 15(1)(e) of the Immigration Act [CAP 66] I, HONOURABLE WILLIE JIMMY Minister of Foreign Affairs and Immigration hereby declare that :-
CHARLES VAUDIN D’IMECOURT
is an undesirable immigrant and that with effect from the date hereof the said Charles Vaudin d’IMECOURT and/or any member of his family or dependant are prohibited from entering the jurisdictions of the Republic of Vanuatu for an indefinite period."
The reference to s 15(1)(e) of the Immigration Act was an error. The reference should have been to s 15(2)(e) of that Act.
Possibly for that reason, on the following day 22 October 1996, the petitioner received a further declaration that he was an undesirable immigrant in identical terms except the correct section was stated. Following a receipt of the first of these declarations the petitioner obtained an injunction preventing the Minister from acting on that declaration and deporting the petitioner.
On that same day, the Judicial Services Commission issued a determination. It is in Bislama. The following translation has been provided by the court staff:
JUDICIAL SERVICE COMMISSION
C/- Ministry of Justice, Culture & Women’s Affairs
DETERMINATION BY THE JUDICIAL SERVICE COMMISSION (1)
The Judicial Service Commission has met on 15 and 22 October 1996 to consider various reports made to the Commission against the Chief Justice Charles Vaudin d’Imecourt.
The meeting was adjourned on 15 on the request of the Chief Justice to enable him to have more time to prepare his written response to the accusations levelled at him.
The meeting resumed at 2.45 PM on 22 October 1996 to hear the Chief Justice’s responses, that is one week after the previous meeting.
At the meeting the Commission found that the Chief Justice did not prepare any report or responses to various accusations levelled against him. Instead he gave his view on how the Commission was conducting its business and tried to stop the commission from completing its work, then he "walked out" of the meeting.
The Commission’s meeting continued with the majority of 3 members of the Commission comprising of the Minister of Justice (Chairman), President of Malvatumauri and Chairman of Public Service Commission to complete its work and made the following decision :
DECISION:
AFTER CAREFUL CONSIDERATION OF ALL REPORTS AND VIEWS, THE JUDICIAL SERVICE COMMISSION FOUND CHARLES VAUDIN D’IMECOURT, CHIEF JUSTICE OF THE REPUBLIC OF VANUATU GUILTY OF GROSS MISCONDUCT.
AS PROVIDED BY ARTICLE 47(3) OF THE CONSTITUTION, THE JUDICIAL SERVICE COMMISSION REQUESTS THE HEAD OF STATE, PRESIDENT JEAN-MARIE LEYE LENELGAU MANATAWAI TO REMOVE CHARLES VAUDIN D’IMECOURT AS CHIEF JUSTICE OF THE REPUBLIC OF VANUATU
Dated 22nd day of October 1996
A constitutional instrument, signed by the President of the Republic of Vanuatu on 31 October 1996, and served on the petitioner on or about that date, reads:
"REPUBLIC OF VANUATU
CONSTITUTIONAL INSTRUMENT
TERMINATION OF THE APPOINTMENT OF THE CHIEF JUSTICE
WHEREAS
1. Justice Charles Vaudin d’Imecourt was appointed Chief Justice of the Republic of Vanuatu on the 11th day of May 1992 ;
2. Article 47(3) of the Constitution of the Republic provides for the removal of office of all members of the Judiciary.
NOW THEREFORE, IN THE EXERCISE of the powers conferred by Article 47(3)(b) of the Constitution of the Republic of Vanuatu and acting in accordance with the determination by the Judicial Service Commission dated 22nd October, 1996, I, JEAN-MARIE LEYE LENELCAU MANATAWAI, President of the Republic of Vanuatu, hereby terminate the appointment of Justice Charles Vaudin d’Imecourt as Chief Justice of the Republic of Vanuatu made on the 11th May 1992 with effect from the date hereof."
Following further Court proceedings, the details of which I need not to relate, the petitioner left Vanuatu on 4 November 1996. He has not returned.
The challenge to the undesirable immigrant declaration
The petitioner challenges the validity of the declarations made by the sixth respondent on the 21st and 22nd October on several grounds.
Lack of jurisdiction
The first ground is that in making the declaration the Minister lacked jurisdiction to make the declaration under the provisions of the Immigration Act. The provisions governing prohibited immigrants are set out in s 15, the relevant parts of which provide :
"15(1) Any person who-
(a) is not a person entitled to enter Vanuatu without a permit under the provisions of subsection (1) of the section 12 ; and
(b) is a member of any of the prohibited classes as defined in subsection (2) of this section, shall be a prohibited immigrant and save as otherwise hereinafter expressly provided his presence in Vanuatu shall be unlawful, not withstanding any permit he may hold.
(2) The following persons are members of the prohibited classes-
.....................................
(e) any person who prior to his entry in Vanuatu or within 2 years thereafter, in consequence of information received from any government through official or diplomatic channels or from any other source deemed by the Minister in his discretion to be reliable, is declared by the Minister in his discretion to be an undesirable immigrant;"
The requirements in paragraphs (a) and (b) of subs.15(1) cumulative. That is both requirements must be fulfilled before a person can be a prohibited immigrant.
The petitioner’s first submission is that he was a person entitled to enter Vanuatu without a permit under the provisions of subsection (1) of section 12 and therefore the first requirement of the subsection has not been fulfilled.
Section 12(1) provides that any person who satisfies the Principal Immigration Officer that he comes within the categories set out in the subsection, is entitled to enter without obtaining a permit. One category is :
"Any person employed by the Government of Vanuatu."
The petitioner comes within that category. He was employed by the Government of Vanuatu as its Chief Justice. Further he has so satisfied the Principal Immigration Officer. His passport has on it the stamp of Vanuatu Immigration recording that he is permitted to enter as a Government Officer for Ministry of Justice. That stamp is dated 9 May 1992. He has since moved freely in and out of Vanuatu without a residence permit.
For a person to be a member of a prohibited classes under s.15(2)(e) he must be a person "…who prior to his entry in Vanuatu or within 2 year thereafter…" is declared by the Minister to be an undesirable immigrant. The petitioner entered Vanuatu on 9 May 1992. The declarations are dated 21 and 22 October 1996. They were not within 2 years after his entry into Vanuatu. So he cannot be a member of a prohibited class under s 15(2)(e)
On the fact of this case, the Petitioner was a person entitled to enter Vanuatu without a permit pursuant subsection (1) of section 12. It follows that in accordance with the terms of s.15(1) he cannot be a prohibited immigrant. The Minister had no jurisdiction to make the prohibited immigrant declaration.
Even if that were not so, the Minister also had no jurisdiction to declare him an undesirable immigrant because that declaration was not made within 2 years after his entry into Vanuatu, as required by s.15(2)(e).
As Lord Denning MR said in Pearlman v. Governors of Harrow School [1979] QB 76 "No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error it goes outside its jurisdiction."
The same principle applies to a Minister exercising a statutory power of decision. He or she can make the decision only within the terms of the statutory authority. If the decision does not accord with the authority given to him by the statute, it is a decision made without jurisdiction. If he does something that is not permitted by statute, judicial review will lie: Council of Civil Service Union v. Minister for the Civil Service [1985] AC374, Lord Diplock at 410.
This is sufficient to dispose of the application for a writ of certiorari in favour of the petitioner. However, in deference to the other submissions advanced on his behalf, I refer to them shortly.
Denial of natural justice
The next ground advanced on behalf of the petitioner is that he was denied the application of the principles of natural justice in the making of the declarations. He was given no notice that the making of such a declaration was being considered by the sixth respondent, nor was he given an opportunity to be heard before the declaration was made.
They can be little doubt that, save in the most exceptional circumstances, the rules of natural justice apply where a Minister of Immigration is considering whether to make some order or decision which can affect a person’s immigration status. There are many cases that have held that to be so. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, Tucker LJ said in a passage that has since been approved in many Courts, including the Judicial Committee of the Privy Council in Furnnell v Whangarei High Schools Board [1973] AC 660 and Rees v Crane [1994] 1 All ER 833:
"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that has been with and so forth... whatever standard is adopted one essential is that the person concerned should have a reasonable opportunity of presenting his case".
There can be some circumstances, relatively unusual or exceptional, where urgency, administrative necessity, or the national interest may justify a person exercising a statutory power of decision of a kind with which the Court is concerned here, without first giving the person concerned notice of the matters being considered and an opportunity to be heard : see Rees at 845.
There is no acceptable evidence of such circumstances in the present case. Surprisingly, the Minister has not ever, either at the time of making the determination or since, given any explanation or reason for his doing so. He has not filed an affidavit. He has not endeavoured to claim that the were some exceptional circumstances that justified his acting in the way that he did, without giving the petitioner the opportunity to be heard.
In an affidavit sworn by the then Attorney General on 19 November 1996, he says that he was instructed and verily believed that an immigration order had to be issued urgently on 21st October 1996 precisely because of fears that the petitioner was continuing to interfere in the executive functions in so far as the "VMF process were concerned". He states no grounds for his belief. He appears to be stating what he understands to have been the belief of the Minister. He gives no further detail. This is an unacceptable way of putting such material before the Court. In the absence of evidence from the Minister or from some other admissible source of circumstances that justify the Minister acting in the way he did, administrative necessity has not been made out.
From the events that occurred, it is obvious that the petitioner, not only did not have a reasonable opportunity of presenting his case, he had no opportunity at all. On his evidence he was totally unaware that this step was even being contemplated until the determination itself was served on him. There was a clear breach of the rules of natural justice.
Termination of the appointment
The next ground advanced was that the petitioner was the Chief Justice of the Republic of Vanuatu appointed pursuant to the Constitution, that the declaration was be tantamount to a termination of that appointment, and therefore ultra vires the power of the Minister as a termination otherwise than in accordance with Article 47(3) of the Constitution.
I do not accept this submission. She is correct in submitting that a Chief Justice or any other Judge can only be removed from office by the procedures described in that Article, to which I return later in this judgment. But if any person, Chief Justice or otherwise, falls within the statutory provisions of s. 15 of the Immigration Act, including being within one of the prohibited classes set out in sub s.(2) he will become a prohibited immigrant, even if the consequence means that that person is unable to carry out some office such as, in this case, the office of Chief Justice.
Failure to give reasons
The final ground advanced is that the petitioner was entitled to reasons for the declaration made by the Minister. No reasons have been given, either at the time, or since.
There is no general rule of law requiring the giving of reasons. But an administrative authority may be unable to show that it has acted lawfully unless it explains itself : Wade and Forsyth Administrative Law 7th ed. 543 In Alexander Machinery(Dudley) Limited v. Crabtree [1974] ICR 120 Sir John Donaldson MR said that in the absence of reasons it is impossible to determine whether or not there has been an error of law. Failure to give reasons therefore amounts to a denial of justice and is itself an error of law where the giving of reasons is an appropriate requirement. In such a case, a decision not supported by adequate reasons will be quashed. In R. v. Secretary of State for the Home Department ex parte Doody [1993] UKHL 8; [1994] 1 AC 531, 264 Lord Mustill said:
"I accept without hesitation and mention it only to avoid misunderstanding that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analysis by the Court of Appeal in R. v. Civil Service Appeal Board ex parte Cunningham [1991] 1 4 All ER 310 of the factors which will often be material to such an implication."
In Cunningham a prison officer was dismissed from the prison service. He appealed to Civil Service Appeal Board which recommended that he be reinstated. The Home Office, as it was entitled to do, refused to reinstate him. The Board then assessed the compensation due. It refused to give reasons for its award. The High Court quashed the decision of the Board because of that refusal. An appeal to the Court of Appeal was dismissed.
Lord Donaldson MR adopted the following passage from the judgment of Lord Bridge in Lloyd v. McMahon [1987] UKHL 5; [1987] 1 All ER 1118 at 1161
"My Lord, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals, depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
Accordingly, Lord Donaldson took it as a starting point in consideration of what is "the character of the decision-making body". He considered the framework in which it operates and whether any additional procedural safeguards are required to ensure the attainment of fairness. Having considered these factors he held that fairness required that "...a tribunal such as the board to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully".
McCowan LJ expressed his conclusion in these terms :-
"As I would put it, not only is justice not seen to have been done but there is no way, in the absence of reasons from the board, in which it can be judged whether in fact it has been done. I find that a thoroughly unsatisfactory situation, in which this Court should hold, if it can properly do so, that the board ought to give reasons for its recommendation.
In reaching a conclusion as to the propriety of Otton J’s order, I am influenced by the following factors:
1. There is no appeal from the board’s determination of the amount of compensation.
2. In making that determination the board is carrying out a judicial function.
3. The board is susceptible to judicial review.
4. The procedure provided for by the code, that is to say the provision of a recommendation without reasons, is insufficient to achieve justice.
5. There is no statute which requires the courts to tolerate that unfairness.
6. The giving of short reasons would not frustrate the apparent purpose of the code.
7. It is not a case where the giving of reasons would be harmful to the public interest."
These then are the factors that were approved by Lord Mustill in Doody. In my view, most apply in the present case. There is no appeal from the Minister’s decision. Although not formally carrying out a judicial function, he is, as I have already found, bound to follow the rules of natural justice. His decision is certainly susceptible to judicial review. Although the Act does not require reasons, they should be given to achieve justice. There are no reasons mitigating against the Minister giving reasons for his determination. They need not be detailed. But they should have been sufficient to inform the petitioner why he was being declared an undesirable immigrant, and to enable a Court to decide whether the reasons were proper and within the jurisdiction of the Minister
Conclusion
Consideration of each of these grounds brings me to the clear conclusion that the determination by the Minister cannot stand. A writ of certiorari will issue to quash it.
The challenge to the removal from office
Relevant provisions in the Constitution
The Supreme Court consists of a Chief Justice and three other Judges: Article 49(2). The Chief Justice shall be appointed by the President of the Republic after consultation with the Prime Minister and the Leader of the Opposition: Article 49(3). Except for the Chief Justice, the judiciary shall be appointed by the President of the Republic acting on the advice of the Judicial Service Commission: Article.49(2).
Article 47(3) is central to this aspect of the case. It provides:-
"(3) All members of the judiciary shall hold office until they reach the age of retirement. They shall only be removed from office by the President of the Republic in the event of-
(a) conviction and sentence on a criminal charge ; or
(b) a determination by the Judicial Service Commission of gross misconduct, incapacity or professional incompetence."
I emphasise two aspects of this provision. First, if either condition is fulfilled, a judge "shall" be removed from office by the President. I do not find any basis upon which it could be held that the President has a residual discretion to remove or not to remove. It follows that in the case of the second condition, the crucial decision is the determination by the Commission. Once the Commission has determined gross misconduct incapacity or professional incompetence by a Judge, removal will follow.
Secondly, where misconduct is the ground being considered, the Commission must find "gross misconduct" not simply "misconduct". "Gross" is a word of emphasis. It means that the misconduct must be really serious and grave before that ground can be said to have been established.
In England, the ground for removal is misbehaviour. Halsbury‘s Laws of England 4th ed. 1107 states :
"‘Behaviour’ means behaviour in matters concerning the office, except in the case of conviction upon an indictment for any infamous offence of such a nature as to render the person unfit to exercise the office, which amount legally to misbehaviour, though not committed in connection with the office. ‘Misbehaviour’ as to the office itself means improper exercise of the functions appertaining to the office or non attendance or neglect of or refusal to perform the duties of the office."
In my view, gross misconduct in Article 47(3) has much the same meaning. The grave nature of the conduct required to justify the removal of a Judge is illustrated by the fact that in all the centuries of the judiciary in England, only one Judge has ever been removed for misbehaviour: Sir Jonah Barrington, an Irish Judge in 1830: Barrington’s case (1830) 85 Commons Journals 196 (18th March 1830).
The first category described in Halsbury is already covered by the first condition in Art. 47(3). Gross misconduct, incapacity or professional incompetence must almost always relate to the manner in which the Judge is performing or failing to perform the duties of the office of a Judge. There may be, in what I would regard as most exceptional circumstances, cases where conduct unrelated directly to the carrying out the judicial office may be taken into account. But that will only where such conduct has some bearing on the Judge’s fitness for office. If he is guilty of gross misconduct that has no bearing at all on the carrying out of or fitness for judicial office, such misconduct will not be a ground for a determination by the Commission. This conclusion has a direct bearing on the giving of reasons by the Commission to which I refer later.
The Commission consists of the Minister responsible for justice as Chairman, the Chief Justice, the Chairman of the Public Service Commission and a Representative of the National Council of Chiefs appointed by the Council: Article 48(1).
The right to bring a constitutional petition is contained in Article 43(1) which provides :
"Anyone who considers that the provisions 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."
The procedure to be adopted when the Supreme Court is exercising its special jurisdiction in constitutional matters is to found, strangely, in Part XIII of the Criminal Procedure Code [CAP 136]. It includes the power of the Court to summons a party or parties whose actions are complained of to attend the hearing. It does not require that party to file a defence. In my view, it accords with good practice for the party whose actions are complained of, to file a defence to the allegations in the petition, particularly if any affirmative defences are intended to be raised, or there are disputed factual allegations. No such defence has been file in the present case.
It is apparent from Art.43(1) that a constitutional petition can deal only with a claim by the petitioner that a provision of the Constitution has been infringed in relation to him. The petitioner must establish first, that there has been a breach of the Constitution, and secondly, that that breach is in relation to him, that is that it has affected his rights in a personal way. If it has, he may seek a remedy by constitutional petition, even although some other legal remedy may have been available to him. If there has been a breach of the Constitution that does not affect the petitioner directly, he cannot obtain relief by these means.
The sequence of events
To determine the grounds upon which the removal is challenged both under the constitutional petition and the application for prerogative writs, it is necessary to refer in more detail to the events surrounding the determination.
I commence with what is known as the Kent report. Mr Justice Kent was appointed a Judge of the Supreme Court of the Republic of Vanuatu in December 1993. The report he compiled is dated 3 May 1995. In its conclusion he said that he compiled it for his own purposes and for the information of the Australian Government. He completed it on the same day that he completed his letter resigning as a Supreme Court Judge. The petitioner states that immediately prior to Kent J’s resignation, the Judicial Services Commission was considering disciplinary proceedings against him following correspondence between the Prime Minister and the Australian High Commissioner. The petitioner states that he provided the then Minister of Justice with a lengthy reply to the accusations in which he says he refuted all of them. This reply has not been produced in these proceedings. No action was taken on the Kent report at that time.
I have already referred to the Government’s decision to extend the Chief Justice’s contract for 2 years evidenced in the employment agreement dated 3 February 1996. An extraordinary meeting of the Council of Ministers of the same day had approved that extension.
What has been referred to as the Daniel Report, a formal complaint by Gilles Daniel to the Commission, is dated 2 May 1996. But according to the stamp on it, it was received on 3 October 1996. The report is said to have been copied to the members of the Commission including the Chief Justice. There is no explanation for the delay between the date of the complaint and the date it was received by the Commission.
The Lini Report is said in the letter of 15 October 1996 to be "the Independent Reports to the International Commission of Jurists by the Honourable Walter Lini". That does not accord with the description on the report itself. It is headed "Statement from Fr. Walter Hadye Lini as Minister of Justice, Deputy Prime Minister and Chairman of Judicial Service Commission". It is undated. The petitioner says that Mrs Hilda Lini became the Minister of Justice in early October 1996. If that be so, the Lini Report must have been compiled sometime before that.
The petitioner says that on Monday 14 October he received the agenda for the meeting of the Judicial Service Commission for 2.00pm that day. The agenda contained three items. The first was the welcome to Members. The third was other business. The second read:
"To lukluk long Report long Judicial Service Commission".
I am informed that in English this means:
"to look at Reports that have come before the Judicial Services Commission".
The petitioner attended the meeting. He and the other members were provided with the Kent Report, the Lini Report and the Daniel Report. He says that he had never seen the latter two reports before. He also said that there was no suggestion that he was to be disciplined for any matter. No charges were levelled against him.
The meeting was chaired by the Honourable Hilda Lini as Minister of Justice. In her affidavit she says that she told the members that they were there to consider the complaints contained in the reports, that they will allow the petitioner to make any statements he wishes to make, and that the remaining members will then make a decision about whether or not the matters raised in the complaints constituted "gross misconduct" under Art.47(3) of the Constitution. There were some reference to complaints by two parties named "Gilles and Brigitte". The Minister says that there were no written complaints in front of the Commission from them, although "I had already myself read complaints lodged by these people". It would appeared that these were persons other than the Gilles Daniel of the Daniel report. The Minister says that the petitioner talked for an excess of one hour about various issues concerned with the complaints. Concerning the Lini Report, she says that he asked for some time to make written submissions. The Commission agreed to adjourn to 17 October 1996 to further consider the written reports about the petitioner.
The petitioner says that he cannot recall how long that meeting lasted nor for how long he spoke. He does, however, say that at no stage was it ever conveyed to him that the proposed meetings were to hear complaints against him in respect of which he was required in any way to defend himself. There is thus a conflict between the Minister and the petitioner on this aspect. I consider the Minister’s account is more likely to be correct.
The petitioner and the Minister agree that immediately after that meeting they met in the Minister’s Office. The petitioner indicated to the Minister that if it were the wish of the Government for him to leave Vanuatu he was, to use the Minister’s word "quite happy to leave provided we can reach an amicable solution".
Later that same day the Chief Justice issued a warrant for the arrest of certain Vanuatu Mobile Force officers. I need not detail the circumstances that lead to that action nor the social unrest to which it related. It appeared to have been this event that caused the Minister, after consultation with the Acting Prime Minister, to issue the letter of 15 October inviting the petitioner to resign voluntarily or terminate the contract. It was later that day that the Minister then issued the further letter purporting to terminate the contract forthwith.
At abut 5.15pm on 21 October 1996, the petitioner was at his house when police officers arrived and handed him the first declaration that he was an undesirable immigrant and was required to leave the country. The officers left. They returned 20 minutes later saying that they were to take the petitioner and his family to the airport. While his wife was packing, the petitioner made an application to the Court for an ex parte injunction to stay the order. That injunction was made by a full Court consisting of three Judges who chanced to be in Vanuatu for a sitting of the Court of Appeal. The order, made after hearing the Attorney General, directed that no action be taken on the declaration of undesirable immigrant prior to 10.30am the next day. On that day the Order was extended.
It was on the same day, 22 October, at about 3.00pm that the petitioner attended the adjourned hearing of the Commission. While he was waiting to go into the meeting, he was handed the second declaration of undesirable immigrant. The petitioner says that he told the members of the Commission that he was concerned for his family's safety, and that he was returning to his house where they were alone.
The Minister gave a somewhat different account. She says that the petitioner told her that he could not attend the meeting because he had just received the second declaration. However, she said that the meeting commenced and that she said that the Commission would now "resume considerations of the complaints against the Chief Justice". They would consider any written submission or other statement that the Chief Justice wished to make and that he would then be asked to leave the meeting so the Commission could make a decision. The petitioner replied that he cannot sit in a meeting which is about to charge him, and he did not think the Minister should chair the meeting because she had already signed the letter terminating his contract. Since he was leaving the meeting, there would be no quorum and the Commission could not sit. The Minister replied that the Commission must complete its deliberations today and the uncertainty and difficulties with the VMF and the Chief Justice’s position cannot continue, that they had adjourned to allow him time to prepare written submissions, and could he please provide them. He declined to do so and left.
She said the other members continued their deliberations. She records that the Commission considered that the petitioner’s conduct towards the other members of the Commission was "extremely arrogant and show great lack of respect for a Constitutional Body". She said the Commission then made the unanimous decision "that the behaviour as observed and as described in the complaints about the Chief Justice (and which the Chief had chosen not to refute) amounted to "gross misconduct" and such determination must be brought to the attention of the President of the Republic."
The determination was then issued. The only reasons given in her affidavit for the determination are:
"Unfortunately over the years there have been too many examples-as reflected in the Kent Report and thus reported by one of [the petitioner’s] own brother Judges who saw [the petitioner] in action "from the inside"- of political interference by the Chief Justice, undue closeness to the Hon. Maxime Carlot Korman who, on the Chief Justice’s own evidence, negotiated personally with the Chief Justice to at least double the Chief Justice’s salary….
There is no doubt in my mind that all three members of the Judicial Service Commission, were correct in determining that the Chief Justice had been guilty of "gross misconduct" and thus could not remain to fulfil this high office without seriously damaging it and the Constitution of the Republic of Vanuatu."
The Constitutional Instrument removing the petitioner as Chief Justice was issued on 31 October 1996.
Article 5 of the Constitution
The first ground upon which the constitutional petition relies is that in unlawfully terminating the petitioner’s appointment as Chief Justice, the right of the petitioner under Article 5(1)(d) and 5(1)(j) to the protection of the law and protection from unjust deprivation of property, were breached. I do not propose to elaborate on these grounds. In my view, they add nothing to the real issue in the case. If the petitioner’s appointment had been validly terminated under Article 47 of the Constitution, those provisions in Article 5 avail him not at all, since, to the extent that those rights were affected, they had been lawfully affected. If the petitioner had been removed as Chief Justice otherwise than in accordance with Article 47, or in breach of the rules of natural justice, the removal is invalid and unlawful, and there is no need to rely on Article 5.
The decision of the Commission
Ms Bothmann Barlow submitted that the Commission needed to have all four of its members present to constitute a quorum. It needs an unanimous resolution of the four of its members to present its will, and that the decision of the Commission was invalid because it was a decision of only three of the four members. She referred to Horsley’s Meetings Procedure Law and Practice where the author says at 105, without citing authority, that "…if there is no prescribed quorum for a committee all the members comprise a quorum for its meetings, not merely a majority".
Ms Bothmann-Barlow recognised that if her submission were correct the result would be that a Chief Justice could never be removed from office. He will not be able to sit as member of the Commission to make a determination against himself in accordance with the Article 47(3)(b) because of the obvious and disqualifying conflict of interest. The result would be that no matter how gross the misconduct or great the incompetence the Chief Justice, he or she could never be removed. She submitted that this difficulty could be overcome by a recourse to s.14(4)(b) of the Ombudsman’s Act [CAP 1995]. That provides :
"(4) For the purpose of enforcing the principles of Article 66 [Leadership Code] of the Constitution the following provisions shall apply :-
(a) ...
(b) the President may inquire into the conduct of... any person holding judicial office and for that purpose shall-
(i) have all of the power given to the Ombudsman pursuant to this Act in respect of such an inquiry and
(ii) …"
I do not consider that that provision overcomes the difficulty Ms Bothmann-Barlow accepts exists. First, although subs (5) says that the President may conclude that after due inquiry and on reasonably evidence that the leader who the subject of the inquiry is guilty of misconduct in office, it does not provide that the President may remove the leader from whatever office he holds.
Secondly, and perhaps more importantly, Article 47(2) of the Constitution provides that members of the judiciary shall only be removed from office by the President under that provision. If the "only" means by which a member of the judiciary can be removed is Article 47(3), that provision must over-ride a statutory provision such as s.14 of the Ombudsman’s Act.
Article 47(3) and Article 48(1) cannot be construed in a way that means that the Chief Justice can never be removed from office. That cannot have been the intention of the enactors of the Constitution. To make this Article in the Constitution workable, the only course, in my view, is to imply into Article 48(1) a proviso that if the Commission is required to consider whether it should make a determination of gross misconduct, incapacity or professional incompetence by the holder of the office of Chief Justice, that determination can be made by the other three members of the Commission.
I do not uphold this ground of challenge.
The power to remove the Chief Justice
Ms Bothmann-Barlow submitted that since, pursuant to Article 49(3), the Chief Justice shall be appointed by the President of the Republic after consultation with the Prime Minister and the Leader of the Opposition, he can only be removed by the same means, namely by the President after consultation with the Prime Minister and the Leader of the Opposition. As that has not occurred he has not been effectively removed.
I do not accept that submission. Article 47(3) applies to "all members of the judiciary". The Chief Justice is a member of the judiciary. He can only be removed under the provisions of that sub article. That means for removal is not affected by the means by which he is appointed.
I have now dealt with all the grounds in the constitutional petition. None of them have succeeded. The constitutional petition is accordingly dismissed. I now move to consider the grounds advanced in support of the application for a writ of certiorari.
Was the petitioner given a fair hearing?
I do not consider there can be the slightest doubt, but that the petitioner was entitled to a fair hearing by the Commission before it issued its determination. It is axiomatic that if a body, whether or quasi-judicial or otherwise, is considering whether a person’s employment should terminated on the grounds of misconduct or incompetence, that person should be given a fair hearing the nature of which will depend on the individual circumstances. I need only refer to the off quoted passage of Lord Morris of Borth-y-Gest in Furnell v. Whangarei High School’s Board [1973] 1 All ER 400, 412.
"It is often been pointed out that the conception which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules (see the speeches in Wiseman v. Borneman [1969] 3 All ER 275 [1971] AC 297. Natural justice is but fairness writ large and juridically. It has been described as "fair play in action." Nor is it a leaven to be associated only with judicial and quasi-judicial occasions."
The importance of the decision the board was making cannot be overstated. To decide whether a Chief Justice should be removed from office can only be regarded as a constitutional issue of the outmost and gravest importance. It harks right back to the fundamental concept of the independence of the judiciary. If there be the slightest suggestion that a judge may be removed for other than entirely proper reasons, properly established after a fair hearing, the independence of the judiciary is imperilled. A judge may well be unable to carry out the judicial oath to perform his judicial office "without fear or favour", if his independence is likely to affected by the threat of unjustified removal. The independence of the judiciary is at the very cornerstone of a free democracy. It is an inherent and vital part of the constitutional separation of powers. Some centuries ago, Blackstone, the well known English legal commentator, said in his Commentaries page 269-
"In this distinct and separate existence of the judicial power in a peculiar body of men nominated indeed but not removable at pleasure by the Crown, consists one main preservation of public liberty: which cannot subsist long in any state unless the administration of common justice be in some degrees separated both from the legislative and also from the executive power."
It is of particular important in constitutional issues. The High Court of Australia in R. v. Joske; ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; (1976) 135 CLR 194, 276 the majority said that:
"…upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which Government power might be exercised and upon that the whole system was constructed."
The challenge to the determination under this head is based on two submissions. First, it is submitted that the petitioner was not adequately informed of the charges against him. And secondly, that he was not given a fair opportunity to answer those charges. There is a third aspect namely whether the Commission took into account material that was not made available to the petitioner.
I refer first to the charges. There were none. The agenda for the meeting did not even say that the conduct of the petitioner was to be considered at the meeting. Even if the petitioner had understood this was to be so, he did know whether the Commission was investigating gross misconduct or professional incompetence. The Minister’s affidavit only says that she announced that the Commission was there "to consider the complaints contained in the Reports". This is a reference to the Kent, Lini and Daniel Reports. She did not say into which category these complaints fell. Nor did she identify which of the myriad complaints were to be considered.
In Doody, Lord Mustill said at 463-
"It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which, unless effectively challenged, will or may lead to an adverse decision. The opinion of the Privy Council in Kanda v. Government of Malaya [1962] UKPC 2; [1962] AC 322, 337 is often quoted to this effect. This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed."
In my opinion the Commission failed to make that explicit disclosure. In Rees v Crane Lord Slynn emphasised the importance of this aspect when the enquiry is into the conduct of a judge. He said at 847:
"But a judge, though by no means uniquely, is in a particularly vulnerable position, both for the present and for the future, if suspicion of the kind referred to is raised without foundation. Fairness, if it can be achieved without interference with the due administration of the Courts, requires that the person complained of should know at an early stage what is alleged so that, if he has an answer, he can give it."
The Kent Report is 22 pages long. It is, as the author acknowledges on page 22 "somewhat rambling". It contains a whole raft of allegations against the petitioner, some of which are trifling and some significant. In some areas, despite the length, it is notably short on detail.
There are two other matters relevant to the Kent Report. First, the petitioner has said that he prepared a detailed response to each of the allegations in the report. There is no evidence that that response was considered by the Commission. Secondly, the report was dated and apparently made available on 3 May 1995. Nine months later the Council of Ministers, presumably with the full knowledge of the report and the petitioner’s response to it, authorised the Minister of Justice, Fr. Lini, to renew his contract. The petitioner would have every reasons to believe that when his contract was renewed by the Government with full knowledge of the Kent Report and his response to it, the Government had decided that there was no substance in the allegations in the report.
The undated Lini Report is five pages long. It makes a number of references to what Fr. Lini claims was a statement the petitioner made at a dinner when he said, apparently in the course of the dinner, that the Constitution of Vanuatu was stupid. It is alleged that on another occasion he called the Members of Parliament stupid. He later apologised for both statements. The report also makes reference to the Judicial Service Commission on 20 February, 1996 studying the allegations into the Kent Report and "it was clear that the allegations are true and founded on facts". No further details of the meeting are given. What is remarkable, if his information is correct, is that that meeting of the Commission occurred only seventeen days after the Government, and in particular Fr. Lini as Minister of Justice, had extended the petitioner’s contract for two years.
Otherwise the report contains unspecified and vague assertions such as-
"In 1994-1995, he wanted to build his own empire in Vanuatu and used his position as Chief Justice to create and encouraged his influence through the Judicial Services in Vanuatu".
Why the actions of the petitioner to encourage his influence though the Judicial Services should be a cause of criticism is not apparent. It is not easy from this report to discern the complaints against the petitioner. There are not any clear well defined allegations of actions that could amount to gross misconduct by the petitioner in carrying out his judicial duties.
The Daniel Report needs less consideration. It is nine pages long. Daniel was a litigant in cases which the petitioner had decided adversely to Mr Daniel. The complaint contains a large number of allegations of incompetence and misconduct. Many of the allegations would appear on their face to be somewhat far fetched and often expressed in extreme terms. He concludes by asking the Commission suspend the petitioner from hearing the current case in which Mr Daniel was involved.
The proper course for the Commission to follow, if it wished to use these three reports as a basis for considering whether the petitioner should be removed from office, was to identify the particular allegations of gross misconduct of professional incompetence that it considered the reports supported, and make these allegations available to the petitioner for comments. It did not do so. It left it to the petitioner to endeavour to sift out of the large amount of material in the reports just what it was with which the Commission was going to be concerned. Such an approach, particularly in a matter as important as the removal of a Chief Justice, is contrary to the rules of natural justice. He did not have a fair opportunity to meet the allegations, whatever they may have been, that the Commission was intending to consider.
I come to consider the hearing. That it had to be conducted in a way that would fairly enable the petitioner to answer the case sought to be made against him is obvious. As Lord Bridge said in Wiseman v. Borneman [1971] AC 297 at 308-
"In particular it is well established that when a statute has conferred on any body the power to make decision affecting individual the Court will not only require the procedure prescribed by the statute to be follow but will readily imply so much and no more to be introduced by way of additional procedural safeguard as will ensure the attainment of fairness."
In her affidavit the Minister said that the members of the Commission remaining after the petitioner had left discussed the following points :-
The meeting had started with four members and had been properly convened.
The complaints were very serious and [the petitioner] had been given plenty of time to respond in the circumstances and had chosen not to reply.
The Commission would not be held to ransom by [the petitioner]. If he chose not to attend any meeting at which his actions were being considered, the Commission could never make a decision about him: that is: if the Commission accepted [the petitioner’s] argument about a lack of quorum.
It also made the finding about the petitioner being arrogant and showing lack of respect to which I have already referred.
The fairness of the hearing needs to be viewed in the light of the other events that were occurring at the time. The day before the meeting the petitioner had had served on him the prohibited immigrant declaration. That declaration was re-served on him while he was waiting for the meeting to commence. Those declarations were, for the reasons I have already discussed, unlawful and invalid. To expect the petitioner, in the face of all those actions, to be able to present any effective defence to the unspecified charges, and the many allegations in the three reports, is to expect a lot. Certainly he had been given some 8 days in which to consider the reports. But the climate in which the meeting itself was held, was hardly conducive to a calm and objective hearing that would give the petitioner a fair opportunity to .... . No grounds have been advanced to establish a need to resolve the issue of the petitioner’s future with pressing urgency. In my view, the proper course for the Commission to adopt was to adjourn the consideration until the time when it would have been able to consider the allegations against the petitioner and his responses to them in a calm and objective atmosphere.
Bias
The allegation of bias is founded on the submission that when the Commission came to consider the complaint against the petitioner first on 14 October 1996 and then on 22 October 1996, the Minister had pre-judged the issued the Commission was to the determine. This submission is based on the two letters the Minister wrote to the petitioner on 15 October 1996, particularly the second, in which she said that the termination of his contract was based on grounds of gross misconduct contained in the reports, and also his intention to undermine the agreement signed between the Government and the VMF Standdown Group by issuing a warrant of arrest.
I comment on two matters concerning this letter. First, her letter was an attempt to remove the petitioner as Chief Justice in a manner entirely contrary to the provision of the Constitution. The Minister lacked the jurisdiction to terminate the petitioner’s contract on any ground, including gross misconduct. Secondly, it appears from the letter that the Minister was influenced in her attempt to do so by the actions of the petitioner in issuing the VMF warrants of arrest, yet nowhere does this ground appear in the three reports upon which the Commission ultimately purported to act.
For the Court to quash a decision of the grounds of bias the Court must be satisfied that there is a likelihood or danger of the bias on the part of the tribunal: R v Gough [1993] UKHL 1; [1993] AC 646.
It is not easy to conceive of a clearer case of pre-judgment or predetermination. The Minister had expressed herself in clear and unmistakable terms in her letter of 15 October She had decided that the petitioner was guilty of gross misconduct when she wrote that letter. Any reasonable person, considering the procedures before the Commission, would have every reason to conclude that, in view of the expressed views of the Minister, who also was chairing the meeting, the result was a foregone conclusion. She had already made up her mind. In view of the terms of her letter, such a person would conclude that she is unlikely to be persuaded to a different view.
The material before the Commission
The third matter relates to the material before the Commission. Formally, it consisted of the three reports. But the Minister said in her affidavit about the other parties referred to, Gilles and Brigitte, that "there was no written complaint in front of the Commission from these people although I had already myself read complaints lodged by these people". Also I note that the Minister’s letter of 15 October refers to the Kent and Lini Reports "and others". If, as the letter suggests, there was more than one additional report to which the Minister had regard, that additional material was not made available to the petitioner for his response. There is also evidence to indicate that the Commission had regard to other material apart from the three reports. In her affidavit, the Minister refers to examples of political interference derived from "…the Kent report and as reported by one of [the petitioner’s] own brother judges who saw [the petitioner] in action ‘from the inside’ ", an apparent reference to a judge other than Kent J. There is nothing to show that the petitioner was ever aware of these further examples.
The right to reasons
I have already referred to the legal principles about the circumstances in which the Court will imply an obligation on the part of the decision-making body to supply reasons for its decision. When those factors are applied to the circumstances of this case there can be not the slightest doubt that the Commission was under an obligation to provide detailed reasons in support of such an important and constitutionally significant determination. In a case of this kind the Court must be able to examine the reasons for the decision in order to ensure that they were matters to which the Commission could properly have regard. In the context of this case, reasons were required to demonstrate that the petitioner was guilty of gross misconduct in the performance of his judicial office, sufficient to justify his removal as Chief Justice. It is not for this Court to decide whether, on the material before the Commission, the petitioner was or was not guilty of gross misconduct. That is for the Commission to decide. But this Court should have sufficient reasons to enable it to judge whether, for those reasons, the Commission could properly have found the petitioner guilty of gross conduct.
The determination itself contained no reasons. It simply found the petitioner guilty of gross misconduct. It did not say why.
The reasons given by the Minister in her affidavit are clearly inadequate. There is an allegation of political interference apparently based on the Kent Report and a report from another unnamed judge. The nature of the political interference that the Commission found proved was not stated. There must at least be a grave suspicion that the Commission was motivated by political consideration rather than misconduct in the performance of the office of Chief Justice. The only other reason given was closeness to a former Minister the Honourable Maxime Carlot Korman relating to the negotiation for the Chief Justice’s salary. It is impossible to see how the petitioner negotiating and agreeing his salary with a Minister of the Government could amount to gross misconduct in the performance of his office.
The absence of any statement of the matters being investigated by the Commission whether in a form of formal charges or otherwise makes the provision of clear concise reasons for the finding of gross misconduct all are more important. No such reasons were given at the time, nor have they been provided since.
Conclusion
The determination by the Commission to request the President to remove the petitioner as Chief Justice of the Republic of Vanuatu cannot stand. It is quashed. It follows that the constitutional instrument purporting to remove him is also quashed.
Remedy
Ms Bothmann-Barlow accepts that given the time that has elapsed and the reluctance of the Court, in effect, to order specific performance of an employment contract, it is inappropriate for seek an order that the petitioner be re-instated as Chief Justice. There will be no such order.
Instead she seeks judgment for the amount due to him pursuant to his contract of employment for the balance of the period for which that amount has not been paid.
I am not prepared to grant judgment in those terms without further evidence. There will need to be an accurate assessment of the amount claimed. There will need to be taken into account any amounts that the petitioner earned during that period. Regard may also need to be had to whether there should be some discount from an arithmetical calculation to take into account the possibility that, had this whole matter been handled properly and reasonably, it may well be that the petitioner may have left Vanuatu with something less than full amount he would have received under his contract, particularly having regard to the extraordinary high salary specified in the contract.
I therefore reserve the issue of quantum for further consideration. In view of my absence from Vanuatu from shortly after the delivery of this judgment, it is desirable that these issues, if they cannot resolved by agreement, be resolved by affidavits and memorandum from counsel. I therefore make the following timetable orders :-
(1) The petitioner is to file and serve an affidavit containing full details of his claims within four weeks from the date of the delivery of this judgment.
(2) The respondents are to file and serve any affidavits in reply within two weeks of receipt of the petitioner’s affidavit.
(3) When the affidavits are complete counsel for the petitioner has 14 days in which to file submissions.
(4) Counsel for the respondents has 14 days from receipt of the submissions of counsel for petitioner to file submissions in reply.
These affidavits and submissions are to be forwarded to me in New Zealand. I will then issue a final judgment. To that extent this present judgment is interim.
Costs
The petitioner is entitled to costs. In the absence of agreement between the parties, the costs are to be taxed in the usual way. If judicial involvement in the assessment of costs is required, it is preferable that this be done by another judge in Vanuatu, who can assess the appropriate costs not only on the hearing itself, but on all the interlocutory applications that preceded it.
The result
(1) The declarations of undesirable immigrant of 21 and 22 October 1996 are quashed.
(2) The determination of the Commission of 22 October 1996 and the consequential Constitutional Instrument of 31 October 1996 are both quashed.
(3) The case is adjourned for further consideration of the quantum of compensation on the terms set out above.
(4) Costs to the petitioner on the terms set out above.
(5) The application for prerogative writs is adjourned for a final judgment following the assessment of compensation.
25th September 1998
TOMPKINS J.
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