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In re the Constitution, Nixon v Republic of Vanuatu [2004] VUSC 71; Civil Case 168 of 2003 (25 August 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 168 of 2003

IN THE MATTER OF: THE CONSTITUTION OF
THE REPUBLIC OF VANUATU
(hereinafter referred to as "the Constitution)

AND IN THE MATTER OF: THE PUBLIC SERVICE ACT NO. 11 OF 1998
as amended (hereinafter referred to as "the Act")

BETWEEN:

SIMEON JACK NIXON
Applicant

AND:

THE REPUBLIC OF VANUATU
Respondent

Coram: Justice Treston

Mr. and Ms. Hakwa for Applicant
Mr. Edwards and Mr. Gilu for Respondent

Dates of Hearing: 27 & 28 July 2004
Date of Decision: 25 August 2004

RESERVED JUDGMENT

APPLICATION

In this Constitutional Application the Claimant, Simeon Jack Nixon applies for the following relief: -

1. A declaration that the provisions of Section 38(1) and (2) of the Public Service Act (the Act) are inconsistent with and therefore in breach of Articles 57(5), 57(7) and 60(2) of the Constitution.
   
2. A declaration that the decision made by the Public Service Disciplinary Board (the Board) on 18 June 2003 in relation to the Applicant is invalid, void and of no effect.
   
3. An order that the Board's decision be quashed.
   
4. A declaration that the decision made by the Public Service Commission (the Commission) on 15 July 2003 to terminate the employment of the Applicant is invalid, void and of no effect.
   
5. An order that the Commission's decision be quashed.
   
6. A mandatory order directing that in the event that the Applicant appeals against any decision made by the Board, such appeal shall be heard by a newly constituted Commission and in the presence of the Applicant.
   

In general the Applicant has applied for such relief under Article 6(1)(d) and (k) of the Constitution of the Republic of Vanuatu (the Constitution) and under Articles 33(1), 53(2), 57 and 60 of the Constitution.

FACTS

In 1991 the Applicant applied for was appointed by the Commission to the post of Senior Accountant for the Department of Civil Aviation. In 1993 he applied for and was appointed by the Commission to the post of Manager Corporate Services for the Department of Public Works. At various times during the course of his employment in this role he was appointed acting Director of the Public Works Department and sometime in 2001 he was appointed by the Commission, with the agreement of the Ministry, to the post of acting Director.

By memorandum dated 4 May 2001 the then Director General of the Ministry, Manasseh Tary advised the Applicant that he was currently under investigation by the Commission and would therefore return to his position as Manager of Corporate Services. After some other exchanges between the Ministry and the Applicant, Mr. Lennox Vuti the then acting Director wrote to the Applicant on 13 June 2002 informing him that he was suspended on full pay with immediate effect. Mr. Vuti confirmed that suspension in a further letter on that same day. (See annexures 'SJN6' and 'SJN 10' to the sworn statement of Applicant dated 13 October 2003).

It seems that Mr. Vuti had been appointed as acting Director General by letter dated 11 June 2002 from Mr. Tary (See exhibit 'MT1' to sworn statement of Manasseh Tary dated 4 May 2004).

Although ten charges were laid against the Applicant only three were subsequently heard by the Board on 10 and 13 June 2003. The Applicant denied the charges and pleaded not guilty. On 18 June 2003, the Board delivered its decision (See annexure 'SJN23') when it found the Applicant guilty on all charges and on one gave him stern warning and on the remaining two suspended him without pay for three months from the date of the signing of the deliberation after which the Board ruled that he would again resume his job as Corporate Manager with full pay.

On 15 July 2003, the Commission considered the written decision of the Board and decided that as there had been serious misappropriation of Government funds, termination of employment was the appropriate penalty. As a result the Commission terminated the Claimant's employment as Manager of Corporate Services in the Public Works Department and dismissed him with effect from 15 July 2003. The Applicant did not receive notice of the Commission hearing and did not attend.

On 15 October 2003, the Applicant filed his Constitutional Application.

After considering the Constitution Application, the Public Service Commission obtained legal advice and on 22 January 2004 decided to set aside its decision of 15 July 2003. The Commission wrote to the Applicant informing him of that decision and advising him that he had fourteen days from 30 January 2004 to make any submissions to the Commission on how it should exercise its powers. As a result of further correspondence between the State Law Office and the Applicant's solicitor, the time for the Applicant to make submission was extended to 1 March 2004. The Applicant did not make any submissions to the Commission in relation to the matter and on 12 March 2004 the Commission decided to vary the decision of the Board and imposed the penalty of termination upon the Applicant.

The Applicant was paid his salary from the date of his suspension on 13 June 2002 until the decision of the Commission on 12 March 2004 less the period of three months that the Board had suspended him without pay from 18 June 2003.

SUBMISSIONS

Applicant

Despite the fact that much detail was contained in the application itself and in the sworn statement of the Applicant as to communication with the Department and the Board and the Commission from the Claimant's legal representatives, the submissions made on his behalf at the hearing were limited to three main points.

In general it was submitted the Applicant's fundamental rights contained in Articles 5(1) (d) and (k) of the Constitution had been breached.

It was submitted that the Applicant had placed his case before the Court and that the whole problem had commenced with the letter to the Director General of Public Utility from Mr. Bill Willie acting Secretary of the Commission (See exhibit 'A1' to sworn statement of Bill Willie dated 26 July 2004).

It was submitted that up to the time when the Applicant's employment was terminated by the Commission on 15 July 2003, there had been actions or omissions that had occurred which in law constituted breaches of the above Articles.

In particular it was argued as follows: -

1. That Mr. Lennox Vuti was not properly appointed as acting Director General of the Ministry of Infrastructure and Public Utilities by Mr. Mannaseh Tary in his memorandum of 11 June 2002 (See exhibit 'MT1' to the sworn statement of Manasseh Tary of 4 May 2004) and that in fact that letter was a fraud and had been backdated. It was submitted that the manner in which the Claimant's first suspension was carried out by Mr. Vuti in his letter of 13 June 2002 (See sworn statement of Claimant exhibit 'JSN6') and the following letter confirming that suspension (See exhibit 'SJN10') was improper. It was submitted that the Public Service Staff Manual (the Manual) (See 'SJN45' Chapter 16 paragraph 2.2 (b)) had been breached because the Director-General had not confirmed the Director's decision within 24 hours.
   

That paragraph provides as follows: -

"If an employee commits a serious disciplinary offence (for example, theft; fraud; misappropriation of public funds; assault; or sexual harassment), the Director (or authorized delegate) of the Department where the employee works, shall suspend the employee on full pay and immediately inform his or her Director General of the suspension who shall confirm or vary the Director's decision within 24 hours (see model "Notice of Suspension" letter for department use in Chapter 8, Schedule 5)"

It was submitted that as the Manual has been gazetted it ought to be given the effect of law and strictly followed to ensure the fundamental rights of citizens were maintained and in this case, it was submitted that the Claimant had not been given protection of the law and equal treatment under the law.

It was submitted that the letter from Director General Mr. Tary of 26 June 2002 (See sworn statement of Manasseh Tary dated 4 May 2004 exhibit 'MT2') indicated that Mr. Tary was not sure of the status of Mr. Vuti and that this confirmed that Mr. Vuti was not properly appointed as acting Director General because that could only be done by the Commission (See Article 60(1).)

2. The Applicant accepted that he was legally represented at the Board hearing where he faced 3 separate charges. He pleaded not guilty. Judgment was handed down by the Board on 18 June 2003. The evidence of Mr. Felix Thomas in his sworn statement dated 4 May 2004 was that he in his letter of 19 June 2003 (See exhibit 'SJN24') was acting on instruction from the Board to enforce the judgment and to suspend the Applicant without pay for 3 months.
   

The Applicant had never appealed under Section 38 of the Act, which provides as follows:-

"RIGHT TO APPEAL

(1) A person who is dissatisfied with a decision of the Board may appeal to the Supreme Court.

(1A) An appeal must be made within 21 days after the person is given written notice by the Board of its decision.

(2) The Supreme Court may affirm, vary or quash the decision of the Board."

After Mr. Nixon became aware of the decision he was already serving his 3 months suspension without salary and he enquired through his solicitor why the Board was giving effect to its decision when the decision had to be confirmed by the Commission under Section 37 (11) and (12) of the Act which provides as follows: -

"(11) Unless an appeal has been lodged in accordance with section 38, all decisions of the board shall be subject to conformation by the Commission not later than 45 days after they have been published or notified to the employee concerned.

(12) The Commission may confirm decisions of the Board, vary such decisions or quash them."

It was submitted on behalf of the Claimant that the Commission must confirm the Board's decision within the appeal period of 21 days despite the provisions of Section 37, and that the Board's decision could not be enforced until it had been confirmed by the Commission.

3. The Claimant submitted that the provisions of Section 38 (above) are unconstitutional in that they confer on the Supreme Court the power to confirm, vary or quash the decision of the Board which was inconsistent because the Board also has a similar power under Section 37 (12) to confirm decisions of the Board or vary such decisions or quash them. There were such inconsistencies between Sections 37 and 38 that Section 38 should be quashed as being unconstitutional.
   

Respondent

The Respondent submitted that the issue came down to what steps the Claimant had taken or could have taken in the whole history of the matter. It was submitted that except for a few letters from his solicitor along the way the Claimant took no action at all about the process, which had been used, or to complain in any way, and he only did it in his Constitution Application.

For example, the Applicant could have filed a Judicial Review about how he was originally suspended by Mr. Vuti. He had six months to do that but took no steps.

The Claimant had been offered the very relief which he sought in the application when the Commission revoked its decision of 15 July 2003 and gave the Claimant the opportunity to make submissions but the Claimant decided not to exercise his opportunity that regard. The Applicant had been offered exactly what he was applying to the Court to grant except for the make up of a new Commission which could not sensibly be done because it was only the President who had power to appoint members of the Commission and those appointment are for a period of 3 years (See Article 59 (1)).

The Respondent submitted that there was no evidence of any perceived or actual bias in the make up of the Commission.

The Respondent submitted that in the overall scenario, and even if there had been any breaches of procedure or fairness, this Court should not exercise its discretion in granting the application of the Claimant because he had delayed in enforcing any of his rights and he had suffered no prejudice as a consequence of any actions of the Respondent because he had been on full pay, apart from the three months referred to above, for the whole period between his suspension and his termination.

In addition, the Claimant had been legally represented throughout and there could be no question that he was not properly advised as to his rights.

It was submitted that Claimant not only had the rights of Judicial Review in relation to his original suspension but could have appealed the Board decision as to his culpability on an appeal within 21 days of the Board decision but had also refrained from exercising that right.

As to the allegation of fraud in relation to the letter from Mr. Tary there had been no evidence to substantiate such an allegation.

The Respondent submitted that the application should be dismissed and referred to the decisions of Timakata v Attorney [1992] VUSC 9 and Kalsakau v Public Service Commission & Government of Vanuatu [1994] VUSC 10; Civil Case No. 94 of 1994.

LAW

Article 5 of the Constitution provides as follows: -

"FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVUAL

(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 opinion, language or sex but subject to respect or the rights and freedoms of others and of the legitimate public interest in defence, safety, public order, welfare and health-

• (a) life;
  
• (b) liberty;
  
• (c) security of the person;
  
• (d) protection of the law;
  
• (e) freedom from inhuman treatment and forced labour;
  
• (f) freedom of conscience and worship;
  
• (g) freedom of expression;
  
• (h) freedom of assembly and association;
  
• (i) freedom of movement;
  
• (j) protection for the privacy of the home and other property and from unjust deprivation of property;
  
• (k) equal treatment under the law or administrative action, except that no law hall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young person, members of under-privileged groups or inhabitants of less developed areas.
  

(2) Protection of the law shall include the following-

• (a) everyone charges with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;
  
• (b) everyone is presumed innocent until a court establishes his guilt according to law;
  
• (c) everyone charges shall be informed promptly in a language he understands of the offence with which he is being charged;
  
• (d) if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceedings;
  
• (e) a person shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in his presence;
  
• (f) no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;
  
• (g) no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;
  
• (h) no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial."
  

Some assistance can be obtained from decided cases as to the approach to be take to a constitutional application such as this.

In Picchi v Attorney General [2001] VUCA 12; CAC No. 20 of 2001 the Court of Appeal said at page 5:-

"Breaches of constitutional rights must be based on reality and not on some theoretical or assumed scenario".

The Court of Appeal had also reaffirmed in Francois & ors v Ozols & ors [1998] VUCA 5; CC155 of 1996 that:-

"The rights and freedoms guaranteed by Article 5 are to be accorded on generous interpretation", and that

"The provisions of Articles 6 (and also those of Article 53) provide a new procedure for seeking the review of administrative decisions by organs of government and public officials, and the correction of 'inappropriate', unlawful or unjust exercises of government power."

In Timakata v Government [1994] VUSC 3; CC No. 5 of 1994 Downing J said:-

"I might add that when interpreting the Constitution some consideration has to be given to its functionality. If interpreted too rigidly it could become a document of great constraint rather than one which sets forth the rights of the people and government structures of the Republic of Vanuatu."

I approach my task mindful of these principles and aware that the application falls to be dealt with under the Constitutional Procedures Rules Order No. 26 of 2003.

FINDINGS

In relation to the first submission of the Applicant I am of the view that Mr. Vuti was properly appointed as acting Director-General of the Ministry by Mr. Tary.

Article 60 (1) of the Constitution provides as follows: -

"FUNCTIONS OF PUBLIC SERVICE COMMISSION

(1) The Public Service Commission shall be responsible for the appointment and promotion of public servants, and the selection of those to undergo training courses in Vanuatu or overseas. For such purposes it may organise competitive examination."

I find that that responsibility of the Commission does not extend to temporary appointments in the absence of office holders for proper reasons. To suggest that the Commission needs to approve every temporary appointment of officers throughout the Republic is in my view not the intention of the Constitution. Such a process would be unwieldy and unworkable. Clearly, in my view, any Director-General can delegate his authority to another Director without approval from the Commission and I consider that the Commission is responsible for permanent appointments and permanent promotions of Public Service and not for temporary appointments as in this case when the Director-General was overseas.

I find that there is no evidential basis for the suggestion that Mr. Tary's letter of 11 June 2002 was fraudulent and backdated. I consider that the delegation of Mr. Tary's position to Mr. Vuti was valid and that Mr. Vuti was entitled, pursuant to that delegation of power, to suspend the Applicant and, although he sent a letter later on the same date confirming that suspension as Director-General, he did not need to do so because the first suspension letter was clearly written in his capacity as acting Director-General. The 24 hour confirmation under paragraph 2.2 of Chapter 6 of the Manual is required when a Director suspends an employee. I consider that if the Director-General himself suspends an employee no confirmation is required. I am not of the view that the subsequent letter of 26 June 2002 written by Mr. Tary on his return made any difference to the validity of the suspension made by Mr. Vuti in his absence. The same principles of delegation were referred to by the Court of Appeal in Vohor and others v Abiut [2004] VUCA 1; CAC No. 5 of 2004

As to the status of the Manual it is clear that it forms part of the terms of employment of every Public Service employee as the former Chief Justice Charles Vaudin D'Imecourt said in the Kalsakau case. The Manual does not in my view have the force of law that is contended by the Applicant although, as was said in the Kalsakau case, the Manual must be regarded in the light of providing a fair procedural hearing as guaranteed by the Constitution and the rules of natural justice.

If the Applicant was dissatisfied with his suspension, he had the right to apply for Judicial Review of that decision within the six months period provided for Rule 17.5 of the Civil Procedure Rules No. 49 of 2002. He chose not to take that course even though he was legally represented at the time(See paragraph 16 of the sworn statement of the Applicant). His choice not to do so at that stage was, in my view, misguided and misconceived. In the Timakata case the former Chief Justice referred to the English decision of Harrokissoon v Attorney General [1979] 3 WLR 348 where Lord Diplock said: -

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

The former Chief Justice himself said at page 42: -

"It seems to me that the rights guaranteed by Article 5 would not be available as a remedy to the holder of a public office who does not avail himself of the remedies provided by the legislation on the ground of entitlement to the protection of the law. It seems to me that he would have refused of his own volition to avail himself of the very protection that he claims. But unlike their Lordships, and without any speculation, I am prepared to say, that if such a party had sought another, the Minister or whatever body is responsible for ensuring the protection granted by the legislation fails to perform his duty or does so arbitrarily, or unfairly, or capriciously or in breach of the rules of natural justice as we know it to be today, then the Supreme Court of Vanuatu has thee means within its power to act and will not hesitate to do so in an appropriate case. But it is correct to say that the holder of a pubic office cannot claim a right not to be removed in accordance with the terms of his appointment or at all as included amongst the fundamental freedoms and rights granted by the Constitution. The Constitution grants no such right."

Having said that however, as I have already said, I find that that first submission fails because there was no procedural breach of any of the Applicant's rights.

As to the Applicant's second submission I am of the view that the Board was entitled to enforce its decision of 18 June 2003 immediately by the suspension of the Applicant without pay for three months. As it happened, the Applicant, in the course of this hearing, conceded that he accepted that sanction and thus did not elect to appeal within the 21 days provided for under Section 38 of the Act. Again that was a right which he had, namely to appeal to the Supreme Court on the merits of the finding of liability under the charges that were pursued. Here the Applicant elected not to take that course and it is clear from the exhibits that the Applicant was given written notice by the Board of its decision. The Applicant annexed a copy of the decision to his sworn statement (See paragraph 34) and was sent a copy of Mr. Thomas' letter of 19 June 2003 (See paragraph 35).

I do not consider that the Commission is required to confirm the decision of the Board before that decision can be enforced. The Board's decision has immediate effect as would, for example, a decision of Supreme Court until stayed and contrary to the submission of the Applicant it makes more sense of Sections 37 (11) and (12) (above) for the Commission to confirm a decision of the Board after the Appeal period rather than before. In any event, the Applicant chose not to exercise his appellate rights to the Supreme Court against the Board's decision in this case although he clearly had the opportunity and the right to do so and was legally represented and advised at the time.

In any event I do not find that the immediate enforcement of the Board's decision could ever be said to be unconstitutional. The Applicant could always be reimbursed for any loss he softened as a result and at that stage he was suspended only and not terminated from his employment.

In relation to the third submission of the Applicant, I do not consider that the provisions of Section 38 of the Act are unconstitutional. The right to appeal to the Supreme Court within 21 days gives an employee the opportunity to contest findings of the Board as to the merits of a defence to the charges. That is a different concept to the question of the sanction imposed by the Board. Effectively a person has the right to appeal to the Supreme Court on the merits of the case within 21 days and the Supreme Court may affirm, vary or quash the decision of the Board. Should that right not be exercised by a person, the Commission must still confirm the Board's decision within 45 days and at that stage the Commission may confirm the decision of the Board or vary such decision or quashed it. The powers of the Supreme Court and the Commission are not, as the Applicant would have it in his third submission, unconstitutional or inconsistent. Had the Claimant elected to appeal to the Supreme Court, the Supreme Court would have been seized of the matter and would ultimately have finally determined it in accordance with Section 38 (2) of the Act. The Commission would have had no further role to play. As in this case where the Applicant did not appeal, the Commission had the power under Section 37 (12) to confirm the decision of the Board, to vary such decision or to quash it.

As I have already said, the remedy that the Applicant sought in this petition was that the Commission's decision of 15 July 2003 be declared invalid and void and of no effect and be quashed. The Applicant then sought that a newly constituted Commission hear the Applicant. In quashing its own decision and allowing time for the Applicant to make submissions and in even extending that time, the Applicant was given every opportunity that he sought in his application. For whatever reasons (seemingly technical) the Applicant declined to accept that opportunity. In the words of the Kalsakau case he "refused of his own volition to avail himself of the very protection that he claims". Again, that seems to me to be misconceived and misguided. He had the benefit of legal advice, he had the opportunity of making representations to the Commissions and of being present before it when it made its decision then, in a somewhat self-defeating argument he continued to seek that this Court declare that the Board's decision in quashing its earlier order was invalid. That clearly begs the question. I consider that the Board was able to quash its own decision and was able to give the Applicant the right and opportunity to appear and to make submissions before it. After all, that course allowed the Applicant the reasonable opportunity to present his case which is in accordance with the rules of natural justice (See d'Imecourt v Manatawai [1998] VUSC 59; CC 140 & 144 of 1996.) The Applicant simply decided, for whatever reasons and on whatever advice, not to take that opportunity and I cannot find that in those circumstances any of his rights either constitutionally or otherwise have been infringed.

The Applicant also sought the mandatory order referred to in 6 (above). That was misconceived in that there is no right of appeal to the Commission from the decision of the Board. The appeal is to the Supreme Court. But in any event there is no evidence of any actual or perceived bias on the part of the members of the Commission as constituted in either of its decisions. In addition as the membership of the Commission is determined by appointment by the President after consultation with the Prime Minister under Article 59 (1) it would be inconceivable that a newly constituted Commission would ever be convened for a one off case such as the Applicant's. There would also be significant difficulties because the Commission is appointed for a term of 3 years.

CONCLUSION

As I have said I do not consider that the Applicant's constitutional rights have been infringed in any way. His initial suspension was valid. He decided not to exercise his right to appeal against the Board's decision. He declined to make any submissions to the Commission after it had vacated its decision. The provisions of the Act are not unconstitutional.

I find that none of the grounds raised in the Application have succeeded and the Constitutional Application is accordingly dismissed.

I award costs on the standard basis in favour of the Respondent.

Dated AT PORT VILA, this 25^th day of August 2004

BY THE COURT

P. I. TRESTON
Judge