In re the President's Referral, President of the Republic of Vanuatu v Speaker of Parliament [2000] VUSC 43; Civil Case 051 of 2000 (11 August 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Civil Jurisdiction
CIVIL CASE No. 51 of 2000

IN THE MATTER OF: A reference by the President of Vanuatu
of bill for the opinion of the Supreme Court pursuant to Article 16(4)
of the Constitution of the Republic of Vanuatu.

AND IN THE MATTER OF: Two Private Member’s Bills
for the Public Service (Amendment) Act No. 18 of 2000
and Government Act (Amendment) No. 23 of 2000.

BETWEEN:

THE PRESIDENT OF THE REPUBLIC OF VANUATU
Referral Authority

AND:

SPEAKER OF PARLIAMENT OF THE REPUBLIC OF VANUATU
First Respondent

AND:

HON. IARIS NAUNUM
MP for TANNA
Second Respondent

AND:

ATTORNEY GENERAL,
as the Friend of the Court,
representing the Republic of Vanuatu

Coram: Acting Chief Justice Vincentncent Lunabek J

Counsel: Mr Julian Ala for the Referring Authority
Mr Ishmael Kalsakau for the First and Second Respondent

JUDGMENT

I -INTRODUCTION

By two Presidential References dated 11^th of May 2000, His Excellency Father John Bennett Bani, President of the Republic of Vanuatu, having considered that:

·  p;&nbbsp; sp; Theic Service (Amendment) Act No.18 of 2000; and

· The Governmenendmect Nof 200 /span

which were presented to His Excellency the President for assent, are inconsistent with a provision of the Constitution of the Republic of Vanuatu, referred the two Bills to the Supreme Court for its opinion, pursuant to his powers under Article 16(4) of the Constitution of Vanuatu.

Article 16(4) of the Constitution provides:

“If the President considers that the Bill is inconsistent with a provision of the Constitution, he shall refer it to the Supreme Court for its opinion. The Bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.”

II -BRIEF FACTS

In or about March 2000, the First Respondent tabled two Private Member’s Bills in the Vanuatu Parliament which were respectively:-

(a) The Public Service (Amendment) Act No. 18 of 2000; and

(b) The Government (Amendment) Act No. 23 of 2000.

The two Bills were passed by Parliament.

They were then presented to His Excellency the President for his assent in accordance with the provisions of Article 16(3) of the Constitution.

By written advice dated 11^th May, 2000 the Office of the President formally advised the Supreme Court Registrar of the two referrals which were signed by His Excellency the President pursuant to Article 16(4) of the Constitution seeking for the opinion of the Supreme Court on the constitutional validity of the said two (2) Bills.

III -GROUNDS OF THE REFERRALS (as amended)

1. The Public Service (Amendment) Bill No.18 of 2000

The Public Service (Amendment) Bill contains four clauses. The Referral Authority considers that clauses 1, 2 and 3 of the Bill are inconsistent with the provision of the Constitution.

Clause 1

(a) Clause 1 of the Bill repeals section 16 of the Public Service Act No.11 of 1998. Section 16 of the Act provides as follows:-

“The Commission is not subject to direction by any Minister or any other person or body in relation to the exercise of its powers under this Act.”

(b) Section 16 of the Act mirrors Article 60(4) of the Constitution of the Republic of Vanuatu. Article 60(4) provides as follows:-

“(4) The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

The Commission refers to here is the Public Service Commission.

(c) By removing section 16 of the Act, it would imply ministerial interference when Article 60(4) of the Constitution expressly prohibits it.

(d) Clause 1 of the Bill is therefore considered to be inconsistent with Article 60(4) of the Constitution.

Clause 2

(a) Clause 2 of the Public Service (Amendment) Bill amends section 18(3) of the Public Service Act No. 11 of 1998. Section 18(3) provides as follows:

“(3) A Director General may only be removed from office after investigation by the Commission for incompetence, disability, bankruptcy, neglect of duty, misconduct or a breach of his or her performance agreement.”

The amendment sought by the Respondents is to add the words:

“or on directive by the Prime Minister.”

(b) The amendment appears to add a new ground for dismissal so as to enable the Public Service Commission to dismiss a Director General or a Director at the direction of the Prime Minister.

(c) Article 60 (4) of the Constitution provides that the Public Service Commission cannot be subject to any direction or control by any person or body and therefore the attempts under clause 2 of the Bill to add a new ground for dismissal, in addition of those grounds already set out in Section 16 of the Act, by the Public Service Commission on any directive by the Prime Minister is considered to be unconstitutional.

(d) Clause 2 of the Bill is therefore considered to be inconsistent with Article 60 (4) of the Constitution.

Clause 3

Clause 3 of the Public Service (Amendment) Bill has been withdrawn by counsel on behalf of the Referral Authority on 12 July 2000.

2. The Government (Amendment) Bill No. 23 of 2000

The Government (Amendment) Bill contains nine clauses. The Referral Authority considers that clauses 1, 2, 4, 6, and 8 of the Bill are inconsistent with the Constitution.

Clause 1

(a) Clause 1 of the Bill deletes subsection 4 of section 9 of the Government Act No. 5 of 1998. Section 9 (4) of the Act provides as follows:

“(4) A minister (including the Prime Minister) must not:

(a) interfere or attempt to interfere in public service employment issues; or

(b) interfere or attempt to interfere in employment issues relating to the Teaching Service Commission, Judicial Service Commission, and Police Service Commission.”

(b) The effect of section 9 (4) of the Act is to prohibit ministerial interference in employment issues in the Public Service Commission, the Judicial Service Commission, the Teaching Service Commission and the Police Service Commission.

The effect of the amendment in clause 1 of the Bill is to remove the prohibition on ministerial interference.

(c) Article 48 (2) of the Constitution provides as follows:

“(2)The Judicial Service Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

(d) Article 60 (4) of the Constitution provides as follows:

“(4) The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

(e) The Teaching Service Commission and the Police Service Commission do not have the same protection under the Constitution as the Public Service Commission and the Judicial Service Commission.

(f) It is considered that Clause 1 of the Bill is inconsistent with Article 48 (2) and 60 (4) of the Constitution.

On 12 July 2000, Counsel for the Referral Authority withdrew clauses 2, 4, 6 and 8 of the Government (Amendment) Bill.

IV -RESPONSE TO THE CONSTITUTIONAL REFERRALS

The First Respondent’s response to the Referral Authority’s grounds of referral is as follows:

(a) To the extent that clause 1 of the Public Service (Amendment) Bill is a restatement of Article 60(4) of the Constitution, a mere deletion of Section 16 of the Public Service Act N0. 11 of 1998 is not inconsistent with the Constitution nor Article 60(4) thereof.

(b) The first Respondent admitted that clause 2 of the Public Service (Amendment) Bill, is inconsistent with the Constitution.

(c) A mere deletion referred to in clause 1 of Section 9(4) of the Government Act cannot be regarded as inconsistent with Articles 48(2) or 60(4) of the Constitution.

V -THE BURDEN OF THE UNCONSTITUTIONALITY OF A BILL

A proposed Act of Parliament (a Bill) is presumed to be valid and will not be declared unconstitutional unless by virtue of the exercise of Article 16 (4) of the Constitution by the President of the Republic, the Supreme Court is of the opinion that the Bill is inconsistent with a provision of the Constitution and if so, then, it will not be promulgated.

Therefore, because, the burden of persuading the Supreme Court of the unconstitutionality of the proposed law (Bill) is on the challenger, the Referral Authority, it is to be understood that the proposed law (Bill) comes to the court with a presumption of its being constitutional. So in order to succeed, the Referral Authority must rebut this presumption.

[See the President of the Republic of Vanuatu (Petitioner) -v- The Attorney General of Vanuatu (Respondent), Civil case No. 169 of 1997, judgment of the Supreme Court dated 5^th June, 1998, (unreported)].

What I now propose to do is to deal first with some preliminary matters seeking for the court directions in respect of procedures when Article 16(4) of the Constitution is being invoked.

VI -SUBMISSIONS ON FOUR PRELIMINARY MATTERS SEEKING THE COURT DIRECTIONS IN RESPECT OF PROCEDURES WHEN ARTICLE 16(4) OF THE CONSTITUTION IS BEING INVOKED

1. The first of these matters is whether or not the President should be referred to as the petitioner when he exercises his duty under Article 16(4) of the Constitution.

It is submitted on behalf of the President that when he decides to refer any bill to the Supreme Court for the Court’s opinion, the President should not be treated as a petitioner because the exercise of his duty under Article 16(4) does not fall within Section 218 of the Criminal Procedure Code (C.P.C.) [CAP 136].

It is acknowledged, however, that pursuant to Section 219 of the said Act, the exercise of the jurisdiction of the Supreme Court under number of Articles of the Constitution including Article 16(4), the opinion of the Court shall be issued as a ruling of the Court and shall be binding on all persons. This would include the President of the Republic of Vanuatu.

It is also acknowledged that in the past, where Article 16(4) of the Constitution has been invoked, the President had been cited as the Petitioner. This is true in the case of Timakata -v- The Attorney General as reported in the Vanuatu Law Reports, Volume 2 at p.575.

It is submitted that the President is not above the law. The President can sue and be sued. The President is not immune from any form of legal action, whether it is criminal or civil in nature.

Although, Vanuatu is a member of the Commonwealth and thus its parliamentary and legal systems are derived from the common law, the position of the President of the Republic is not the same as the position of the British Monarchy. Whereas the Queen personifies the state of the United Kingdom, in Vanuatu, the status of the President is that he symbolises the unity of the nation.

The President does not exercise general executive power. The Constitution confers on the President certain specific powers, which he may exercise on his discretion and others, which he may exercise only on, advice. These powers are well articulated in the judgment of Justice Harry Gibbs given in the matter of The Government of the Republic of Vanuatu -v- The President of the Republic of Vanuatu (Supreme Court, Civil Case No. 124 of 1994) at page 5.

It is submitted that in a small country like Vanuatu where the principle of separation of powers and the process of democratic evolution is something that this country is still going through and learning, it is suggested that the exercise of the duty of the President pursuant to Article 16(4) could be interpreted by some people as an interference by the President in the affairs of the Government of the day and Parliament.

To avoid any misunderstanding, it is submitted that when the President decides to exercise his duty under Article 16(4) of the Constitution, the President should be cited as the “Referral Authority” and not the “Petitioner”.

The Supreme Court is invited to note Section 220 of the Criminal Procedure Code Act [CAP 136] and for the Judicial Committee to prescribe further procedures for the exercise of the jurisdiction of the Court under those Articles listed thereunder.

It is submitted for the Respondent that the connotation that may be drawn from Articles 6, 53(1), 53(2) and 54 of the Constitution when one considers what is entailed in a petition differs from plain construction of what is intended by the operating provisions of Article 16(4).

Whiles it is acknowledged that the dictionary meaning of a petition is merely descriptive of the term in that a petition is referred to as “asking, supplication, request; formal written application from one or more persons to sovereign etc; formal written application to Court for Writ, Order… (in this instance opinion) Oxford Dictionary 6^th Edition (emphasised) and this could lead one to suggest that there is no problems whatsoever whether a referral by the President is by petition or reference or application, the connotation placed upon a petition pursuant to Section 218 of the CPC when compared with the President’s petition under Article 16(4) would on the face of it suggest that the President is aggrieved by Parliament’s conduct on deliberations over a proposed bill, leading the President to make an application to the Court under Article 16(4) by way of a petition.

This cannot be so if one takes the ordinary plain and unambiguous meaning of what is a petition and one compares this with what intended by Section 218 of the CPC.

Any petition that is brought in accordance with Section 218 deals specifically with infringements of rights and grievances.

A petition under Article 16(4) is merely a request or rather using the words of Article 16(4) a refer(ence) and that can be the only way that the Constitution can be construed if the President applied to the Court by petition.

Nothing can be drawn from the President’s application, it by petition, that he is aggrieved by parliamentary conduct or his rights are abrogated.

If one reads Article 16(4) of the Constitution with Section 219 of the Criminal Procedure Code, it is of no consequence whether the President is a petitioner or applicant or plaintiff or referral authority for that matter.

What is manifested in Section 219 of the CPC is that at the end of the day it is important legally and for the preservation of justice that he is bound by any decision, opinion, ruling order or judgment the Court may prefer or impose.

There is no issue of contention in whether or not the President is above the Constitution and the law.

Article 2 of the Constitution clearly stipulates that the Constitution is the supreme law and from this there is no mystery and it is not a loaded submission to have when we respectfully say the President is not above the law.

If the Constitution is clear with regard this issue there is no need to traverse the world with submissions that may attempt to import into Article 2 of the Constitution a meaning indifferent to the express provisions of same.

Thus there is no confusion as Section 218 of the CPC is clear. Petitions under Article 6, 53(1), 53(2) and 54 are articles that pertain to infringements and cannot be regarded in like manner to presidential requests made under Article 16(4) of the Constitution.

COURT CONSIDERATIONS

Section 218 of the CPC [CAP 136] provides:-

“(1) Every applications to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53(1), 53(2), and 54 of the Constitution shall be by petition and shall be valid no matter how informally made…”

By perusing the language of Section 218 of the CPC, it is clear that any petition that is brought in accordance with Section 218 of the CPC, deals specifically with infringements of rights and grievances. This is so for the enforcement of fundamental rights under Article 6, infringement of the Constitution in relation to a person under Article 53(1) and (2) and Election Disputes under Article 54 of the Constitution.

Section 218 of the CPC makes no reference to Article 16(4) of the Constitution. Is that a mistake or an oversight from the Vanuatu constitutional founding fathers? I am of the view that it is not. Article 16(4) imposes a duty on the President to refer the Bill to the Supreme Court for its opinion if he (the President) considers that the Bill is inconsistent with a provision of the Constitution. The exercise of the President’s duty under Article 16(4) of the Constitution does not fall within Section 218 of the CPC [CAP 136].

The President’s constitutional duty under Article 16(4) is exercised by way of presidential reference to the Supreme Court for its opinion on the constitutional validity of a proposed Act of Parliament (Bill). On the contrary, the enforcement of rights and grievances contained in Articles 6, 53(1), (2) and 54 of the Constitution, are exercised by way of individual petition to the Supreme Court as provided for under Section 218 of the CPC in order to redress/remedy the infringements of the individual rights and/or grievances. (emphasis added)

Therefore, when the President decides to exercise his duty under Article 16(4) of the Constitution, I accept the submission that the President should be cited as the “Referral Authority” and not the “Petitioner”.

It is to be noted further that under Article 16(4) of the Constitution, if the President considers that a Bill is inconsistent with a provision of the Constitution, and once the President is so satisfied, then, he has no discretion, he must refer the Bill to the Supreme Court for its opinion. By doing so, the President should not be concerned that some people would interpret the exercise of that duty as an interference by the President in the affairs of the Government of the day and Parliament.

If that is the case, then, the President would fail in the exercise of his constitutional duty.

As per the Constitution, which is the supreme law of Vanuatu (Article 2), the President of the Republic is not only the symbol of unity of the nation but he has also the duty to protect the Constitution itself. Articles 16(4) and 39(3) of the Constitution provide the means of that protection: that of the presidential reference of a proposed Act of Parliament (Bill) under Article 16(4) and that of the Presidential reference of a regulation under Article 39(3) to the Supreme Court for the control of their constitutional validity.

The President constitutes and represents, therefore, the institutional check and balancing element between the function of Executive Government and the function of Legislative Government in the law-making process, so that Bills (and/or Regulations) are made in conformity with the Constitution of the Republic.

2. The second matter that requires some directions from the Court is the issue of the party or the parties to be named as respondents.

It is submitted on behalf of the President that where a bill is referred to the Supreme Court and that such a Bill is a Government bill, the respondent party should be the Attorney General being the legal representative of the Government.

On the other hand, where the President refers a bill to the Supreme Court and that bill emanated from the House as a Private Member’s Bill, it is submitted that the respondent parties should be the movers of that bill in the House.

As any bill passed by Parliament becomes a document that belongs to Parliament, it is submitted that the President under Article 16(4) should also cite the Speaker of Parliament as a respondent in any referral.

It is acknowledged, however, that in the previous case of Timakata -v- The Attorney General, referred to above, the Speaker had not been made a party to the proceedings.

It is submitted on behalf of the respondents that bills whether they are presented by Government or private members are tested at their initial stage that is the Government or any private member can only become a party if the proceedings in Parliament or the provisions of a bill to Parliament are called into question.

It is initially a member’s bill or a Government bill until Parliament approves it by majority. If Parliament is to approve it by majority it becomes seized of the bill. It is the first indication to the public at large that Parliament intends that a bill shall become law.

The confirmation of such law is the presidential assent.

Thus in such circumstances it is respectfully submitted that the seizure of the Parliament of a bill by a majority vote relinquishes Government or a private member from any property right or liability that would emanate from Parliament’s acceptance that a bill represents good law.

Thus, regarding the bill currently before the Court, it is submitted that the only other party apart from the President must be Parliament represented by the Speaker, for good reason.

In accordance with Article 16(2) bills are merely introduced by Members of Parliament but laws are made by Parliament.

It cannot be that the Speaker can be made a party separate from Parliament. Under Article 22(2) the Speaker presides in Parliament and maintains Order. He has no control over a majority vote, save the intervention of the Judiciary.

What, at best, the Speaker may do is to represent Parliament and echoes Parliament’s wishes but not to import his own views in any given situation and treat them as representative of Parliament.

Therefore it is respectfully submitted that where a bill have bee passed by a majority vote, Parliament is seized of a bill, not the Speaker nor the members introducing it as the bill has traversed its process to become law.

There is good reason to suggest that this was the cause of action intended by making the Attornatus Regis as the Respondent, as vested in him in Civil Case 103, 104, 105 of 1992, President Timakata v. The Attorney General. The Attorney General has not solely the principal function to represent Government but there is no other more fit that the first law officer of state to represent the interests of the Republic of Vanuatu (Section 1(3) Law Offices Act, [CAP 118] Section 10(1) and 11, State law Office Act.

COURT CONSIDERATIONS

It is emphatically the function of Parliament to make laws for the peace, order and good Government of Vanuatu (Art. 16(1)). Parliament makes laws by passing bills introduced either by one or more members or by the Prime Minister or a Minister (Art. 16(2)). Article 16(2) of the Constitution indicates that the process of the law-making of Parliament, is by introducing bills either by one or more Members of Parliament, that is, the Private Member’s bill or by the Prime Minister or a Minister of the Government, that is, the Government Bill. That is the first stage of the law-making process of Parliament.

The passing of a bill by Parliament constitutes another stage of the process of the law-making of Parliament.

Then, when the bill has been passed by Parliament, it must be presented to the President of the Republic who must assent to it within 2 weeks. If within that period, the President assents to the bill, it will be promulgated.

But, if after the passing of the bill by Parliament and before its promulgation, the constitutional validity of the bill is challenged by the President of the Republic under Article 16(4) of the Constitution, who then is (or are) the right respondent(s) in the constitutional reference?

The Parliament can pass any bills including invalid bills. That is the reason why the Constitution provides for the constitutional control mechanism under Article 16(4). Any bill passed by Parliament becomes a document that belongs to Parliament but not the movers whether they are members of Parliament or members of the Government (Prime Minister or a Minister).

For that reason, the first respondent in any presidential reference under Article 16(4) of the Constitution, must be the Speaker of Parliament on behalf of Parliament. This is not to question the parliamentary proceedings where such a bill referred to the Court by the President was passed but, rather, as a matter that concerns Parliament as the Legislative branch of the Government in the exercise of its Legislative function as opposed to the Executive function of the Government of the Republic of Vanuatu.

Then, where a bill is referred to the Supreme Court and that such a bill is a Government bill, the Attorney General, being the legal representative of the Government, should be cited as the second respondent.

Where a bill is referred to the Supreme Court and that such a bill is a Private Member’s bill the mover(s) of the bill will be cited as the second respondent(s) and the Attorney General as the first law officer of State to represent the interests of the Republic of Vanuatu (Section 1(3)) Law Offices Act [CAP 118, and Section 10(1) and 11 of the State Law Office Act No. 4 of 1998, should be cited as the Friend of the Court and should be present in Court throughout the hearing of the constitutional reference.

3. The third matter that requires submission to assist the Court is the question of the appropriate orders that the Court can make.

It is submitted on behalf of the President that Article 16(4) of the Constitution is very clear on what the Court should do in the event the Court finds any bill to be inconsistent with a provision of the Constitution.

Part of Article 16(4) provides as follows:-

“…the bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution”.

In the Timakata -v- The Attorney General case referred to above, the Chief Justice had the view that the Supreme Court strike out those provisions of the bill that were inconsistent with a provision of the Constitution and have the rest of the bill not affected promulgated.

With respect, it is suggested that such a view may not be constitutionally correct.

On the other hand, there is the argument that if a particular clause of a bill is found to be inconsistent with a provision of the Constitution, that particular provision only should be declared inconsistent but that the rest of the bill not affected should be promulgated. In other words, to adopt Justice Vaudin’s approach.

The question is: is Justice Vaudin’s approach constitutional?

It is submitted that the Constitution does not provide for such partial removal from promulgation as the provision of Article 16(4) of the Constitution is clear.

The respondents submitted as follows:

As to the third preliminary issue with regard the question of appropriate Orders the Court may make in constitutional petition of this nature by Article 16(4) a reference by the President to the Supreme Court asks for an opinion.

There is no grievance that the President alleges.

The opinion of the Court when read with Section 219 of the CPC leads the Court to issue such of its opinion as though it is a ruling of the Court in order that there is a binding effect on the parties.

This is important in the respondent respectful submission in that a mere opinion that does not bind the parties and in particular the President causes problems, the principal one being no end to referrals over one particular bill where the President returns to the Court with more referrals where an opinion of the Court is not either not what the President expects, or is not helpful to him.

The Court will note under Article 16(4) the question as to whether or not a bill is promulgated depends largely and solely upon the Court’s opinion and not that of the President.

Thus it is r submitted the Court’s finding in respect of its own powers partially correct in that (p.557 Timakata -v- AG) the Court does not embark upon an enquiry that covers Parliament’s sole jurisdiction, that is to make laws for the peace order and good Government of Vanuatu.

What the learned Judge in the instance case interpreted in Article 16(4) is in the respondent’s submission, a far liberal attempt to define the plain meaning of a bill, although at the final part of the judgment of Vaudin J the Court in the respondent’s submission arrived at the correct result in that and it is submitted the Court expresses its opinion with regard bills, not provisions therein.

The promulgation or otherwise of a bill depends largely upon whether the bill is inconsistent with the Constitution. Any provision that the Court may find to be inconsistent does not render a bill incapable of being cure by amendment or incapable of being promulgated.

The Court provides its opinion as to the constitutionality or otherwise of any bill but in accordance with section 219 of the CPC. It is required to make determinations that beckon the compliance of Parliament and the President to matters of law only and not policy considerations that are relevant only to the attention of Parliament (p.610 Timakata -v- AG).

The Supreme Court is vested with powers necessary for the maintenance of substantial justice (Article 47 of the Constitution).

(1) Thus there are two scenarios that may be construed in Article 16(4):

(2) Where a bill is unconstitutional the Court proffers its opinion to ensure that a bill is not promulgated.

Where a provision is unconstitutional it is open to the Court to have same rectified as a mere provision of a bill being found unconstitutional does not prevent the Court from applying finding the bill unconstitutional.

An offending provision may be rectified by the Court in order to leave a bill intact for promulgation leaving Parliament the responsibility to rectify what the Court regards as a defect where substantial justice could would it to be so.

COURT CONSIDERATIONS

The situation which is of concern here is that of partial constitutionality of a bill or that of partial validation of a bill of Parliament. Is a bill valid in part, and invalid in part? In my view, if the valid part can stand by itself it will be sustained. This means that the same bill may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. It must be noted that the parts of a bill must be separate and independent of each other if the valid portions are to be upheld.

Article 16(4) of the Constitution says that:-

“If the President considers that the Bill is inconsistent with a provision of the Constitution, He shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.”

By perusing the language of Article 16(4), it becomes clear that the control of the constitutional validity of a proposed Act of Parliament (Bill), is exercised in a preventive way after the passing of the Bill by Parliament and before its promulgation.

The purpose of that control is not to prevent or delay the exercise of legislative power but to ensure its conformity with the Constitution and, in any event, when a bill is not in its totality declared contrary to the Constitution, to permit its promulgation by striking down provisions which are declared inconsistent with the Constitution.

If the constitutional parts of a bill are independent and/or separate from the unconstitutional parts of the bill, the Court can advise the President to promulgate the constitutional parts of the proposed Act of Parliament (Bill) leaving aside the unconstitutional parts, which are struck down. In this situation, the legislative process is complete or comes to end by the promulgation. It is, then, necessary for Parliament to start a new legislative process to complete the promulgated bill with new provisions to replace those declared unconstitutional or inconsistent with a provision of the Constitution.

But, if the unconstitutional parts of the bill are not independent and cannot be severed from the constitutional parts of the bill, the (whole) bill will be rendered unconstitutional and cannot be promulgated. It is in that sense that the following part of the Article 16(4) of the Constitution should be read and understood:

“The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.”

On that point, I beg to differ from the approach taken by the Hon. Chief Justice Vaudin d’Imécourt in the Case of President K. Timakata v. the Attorney General of the Republic of Vanuatu (1993), Vol.2 Van. L.R., 575 when he stated:

“I now turned to consider whether the fact that section 3(6) of the Broadcasting and Television Bill and section 8A(2) of the Business Licence (Amendment) Bill being unconstitutional, make the whole Bill unconstitutional…”

His Lordship, then, concluded:

“I am forced to the conclusion that they do and that therefore both Bills are unconstitutional. The next question which I must ask myself is, have I the power or authority to amend those Bills in such a manner as to render them constitutional?

Both parties here have submitted that in the event that I should find only parts of the Bills to be unconstitutional, then I would be authorised under the Constitution itself to take whatever steps are necessary to render the Bills constitutional.” (at p.611)

In my opinion, if the unconstitutional parts of the Bill are not independent and cannot be severed from the rest of the Bill, then, the valid portions of the Bill cannot stand, rendering the whole Bill unconstitutional. Therefore, then, the Supreme Court has no power at all, to rewrite the Bill in order to make it constitutional for the purpose of promulgation. That is a matter solely for Parliament and I so rule.

Article 16(4) of the Constitution mandatorily prohibits to this effect, in that:

“The Bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution.”

What the Court can and must do is to advise the President of the Republic of Vanuatu that the bill is unconstitutional and therefore it cannot be promulgated as provided under Article 16(4) of the Constitution. This means that the President’s Assent on the Bill and the promulgation of the Bill are subject to the intervention of the Parliament to replace the unconstitutional provision(s) in compliance with the opinion of the Supreme Court. In that case, it is not a passing of a new bill by Parliament, but it is a supplementary stage of the legislative process as a result of the control of the constitutional validity of the bill under Article 16(4) of the Constitution by the Supreme Court.

The Court of Appeal (Vanuatu) in the Attorney General of the Republic of Vanuatu -v- President K. Timakata, C.A., Appeal Case No. 1 of 1993, C.A. Vol.2 Van. L.R., stated:

“One purpose of Article 16(4) is to prevent laws which on their face appear to be inconsistent with the Constitution from being enacted. If the Bill is inconsistent with the Constitution, it is not to be promulgated, and the citizen is hereby saved the trouble of deciding whether the offending provision can be read down so as not to apply to the circumstances of the particular case and tested in the Courts.”

This shows the particularity of the provision of Article 16(4) of the Constitution. By operation of Article 16(4), the time for the Court to exercise its control of constitutional validity of a proposed Act of Parliament, is after the passing of that Bill by Parliament and before its promulgation and therefore within and during the law-making process. In other Commonwealth jurisdictions, as a matter of comparison, it has been emphatically laid down that the settled practice is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law and that the proper time for the Court to intervene is after the completion of the law-making process.

[See the President of the Republic of Vanuatu (Petitioner) and the Attorney General of the Republic of Vanuatu (Respondent) Civil Case No.169 of 1997 (at p.23) and cases cited therein (unreported)].

4. The fourth and final matter to be addressed is the question of the payment of costs in these kinds of proceedings.

It is submitted that where a bill referred to the Supreme Court is a Government bill, the costs involved in referring the bill to the Court should be borne by the Government. On the other hand, it is submitted that where a bill referred to the Supreme Court is a private member’s bill, the movers of the bill should meet the costs of such referral.

The reason for suggesting that the costs of referring a private member’s bill to the Supreme Court should be borne by the movers of the bill is to place some responsibility on the Members of Parliament to exercise their parliamentary duties more diligently.

It is submitted for the President that the issue is not to stop Members of Parliament from exercising their parliamentary and democratic rights, including the right to table a private member’s bill. On the contrary, the question is to make members of Parliament more diligently, accountable and responsible for their actions when they carry out their duties.

The respondents submitted as follows:

As to the fourth and final issue in respect of costs such is a discretion that vests in the Court.

That is to say the question must lie in either whether a bill is constitutional or otherwise or whether only a provision offends the Constitution.

If a bill offends the Constitution it is not unreasonable to expect the movers of the bill and Parliament to pay costs of the President’s referral.

If on the other hand it is only a provision, it is subject to the Courts powers to have same rectified but the bill is left intact for promulgation.

The time in which a bill is or is not to be promulgated requires the Court’s determination. Thus an offensive provision or bill in the interests of substantial justice requires more serious attention to its rectification whilst a provision being connoted to have some infringing aspects may be rectified by Parliament in good time.

What is clear is that even if a bill which is promulgated contains an offending provision the best consideration that can be given to such a Bill or a provision is that there is no legal application that anyone can give to same until it is rectified and this is why the Court must make the determination and equally important that the Court’s determination be binding on the parties, who will rightfully be Parliament in the interests of the Republic of and where the jurisdiction is small as Vanuatu.

However, where there is no inconsistency found and taking into account Parliament’s sole jurisdiction to pass laws for the Peace, Order and good Government of Vanuatu any delay that is unwarrantably caused by the President must be compensated with costs being borne by the President of State in the same rationale as the President would expect of a losing mover of a bill.

COURT CONSIDERATIONS

As to the issue of costs, it is a matter in the discretion of the Court. The question lies in either whether a bill is constitutional or otherwise or whether only a provision offends the Constitution.

If the provision of a bill offends a provision of the Constitution and the provision cannot be separated and/or severed from the whole bill rendering the Bill unconstitutional, Parliament and the Private movers of the Bills or the Government will be responsible for the costs of the constitutional reference by the Referral Authority depending on whether it is a Private Member’s Bill or a Government Bill.

If there is no inconsistency found after the exercise of the constitutional validity of a Bill, then the costs should be born by the Referral Authority.

If the provision of a Bill which has been declared inconsistent with a provision of the Constitution, that provision can be severed or separated from the constitutional part of the Bill, but the bill is left intact for the promulgation, the Court should exercise its discretion taking into account of the time and attention for its rectification to award the costs.

I now turn to the submissions in respect of the two Bills in question before the Court.

VII -SUBMISSIONS IN RESPECT TO THE PUBLIC SERVICE (AMENDMENT) BILL No. 18 of 2000 AND THE GOVERNMENT (AMENDMENT) BILL No. 23 of 2000

1. Submissions in respect to the Public Service (Amendment) Bill No. 18 OF 2000

Cl 1

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It is submion behalf of the Referral Authority that clause 1 of t of the Bill is inconsistent with the spirit of Article 60 (4) of the Constitution.

Clause 1 of the Bill repeals Section 16 of the Public Service Act No. 11 of 1998. Section 16 of the Act provides as follows:

“The Commission is not subject to direction by any Minister or any other person or body in relation to the exercise of its powers under this Act.”

It is submitted that the purpose of having this particular provision spelt out in a legislation is to put beyond doubt the prohibition on ministerial interference or any kind of interference in the Public Service Commission.

Although, there is the argument that such a provision is unnecessary as it mirrors Article 60 (4) of the Constitution and therefore, it is superfluous, it is submitted that there is no harm in having that provision in an Act of Parliament as it would act as a “double-lock on the door” to ensure that those in authority respects the principle at all times.

Clause 1 of the Bill attempts to remove Section 16 of the said Act and it is submitted that by removing this particular section would imply ministerial interference when the spirit of Article 60 (4) of the Constitution expressly prohibits it.

Clause 2

(e) Clause 2 of the Public Service (Amendment) Bill amends section 18 (3) of the Public Service Act No. 11 of 1998. Section 18 (3) provides as follows:

“(3)A director – general may only be removed from office after investigation by the Commission for incompetence, disability, bankruptcy, neglect of duty, misconduct or a breach of his or her performance agreement.”

The amendment sought by the First Respondent is to add the words “or on directive by the Prime Minister.”

(f) The amendment appears to add a new ground for dismissal so as to enable the Public Service Commission to dismiss a director general or a director at the direction of the Prime Minister.

(g) Article 60(4) of the Constitution provides that the Public Service Commission cannot be subject to any direction or control by any person or body and therefore the attempt under clause 2 of the Bill to add a new ground for dismissal, in addition to those grounds already set out in section 16 of the Act, by the Public Service Commission, “on any directive by the Prime Minister”, is considered to be unconstitutional.

(h) Clause 2 of the Bill is therefore considered to be inconsistent with Article 60(4) of the constitution.

The Respondents say that regarding the Public Service Bill they repeat their response to the Petition and respectfully submit that a mere deletion of the provision has no effect on the Constitution and entrenchment of he Public Service Commission’s impartiality in accordance with Article 60(4).

To suggest that Section 16 is a “double lock” on Article 60(4) is to assert boldly that the Constitution may be brought down to and construed in the same way as a Bill or other statutes.

This cannot be correct as the Constitution is sui generis and need no subordinate legislation to reinforce itself.

No interference can be drawn from Article 60(4) that would have the President assert that there will or can even be any ministerial interference.

Clause 2.

The Respondents admitted that clause 2 of the Public Service (Amendment) Bill is inconsistent with Article 60(4) of the Constitution.

COURT CONSIDERATIONS

The relevant constitutional and legislative provisions are as follows:

Article 60(4) provides that:

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

Section 16 of the Public Service Act No. 11 of 1998 provides as follows:

“The commission is not subject to direction by any minister or any other person or body in relation to the exercise of its powers under this Act.”

Clause 1 of the Public Service (Amendment) Bill repeals section 16 of the Public Service Act No. 11 of 1998.

Is the repeal of section 16 of the Public Service Act inconsistent with Article 60(4) of the Constitution as alleged?

In Attorney General of the Republic of Vanuatu (Appellant) -v- President Karlomoara Timakata (Respondent) – Appeal Case No. 1 of 1993, C.A, Vol.2 Van.L.R. 679, it is stated:

“subject to the Constitution, the Parliament of Vanuatu is given plenary powers by Article 16 (1) of the Constitution and in the exercise of those powers it may repeal or alter existing laws: see Article 95 of the Constitution.” (at p. 682).

Section 16 of the Public Service Act No. 11 of 1998, mirrors Article 60(4) of the Constitution.

Article 60(4) of the Constitution guarantees and protects the independence of the Public Service Commission in the exercise of its functions.

The functions of the Public Service Commission are spelt out in the Constitution and the Public Service Act No. 11 of 1998.

Section 16 of the Public Service Act of 1998 is modelled or mirrored on Article 60 (4) of the Constitution. In other words, section 16 of the Public Service Act of 1998, reproduced the provisions of Article 60 (4) of the Constitution.

Section 16 constitutes therefore, a guarantee/protection given to the Public Service Commission by Parliament. Parliament, then decided to repeal section 16 of the Public Service Act of 1998. Does that repeal affect or offend Article 60(4) of the Constitution in any way?

I am of opinion that the repeal of section 16 of he Public Service Act of 1998 does not affect Article 60(4) of the Constitution in any way and/or at all.

The independence and impartiality of the Public Service Commission is still and always guaranteed and protected by Article 60(4) of the Constitution despite the repeal by Parliament of section 16 of the Public Service Act of 1998.

It is fundamentally important to understand that, when a legislative power was granted, neither the indirect effect of its exercise nor the motive or object of the legislative in exercising it were relevant to the question of the validity of its exercise in a particular given case.

[Civil case No. 169 of 1997 Judgment of the Supreme Court (unreported) (p.19), referred to earlier].

In the case of the President of the Republic of Vanuatu –v- A.G (1993) Vol.2 Van.L.R. 575-596, Vaudin D’Imécourt CJ held:

“In the cause of interpreting the Constitutionality of these present Bills, there is no question of entering into an inquiry as to whether or not the proposed Acts are in fact for the peace, order and good Government of Vanuatu, that must be a question in the sole discretion of Parliament”.

Clause 1 of the Public Service (Amendment) Bill No. 18 of 2000, has some reasonable relation to the exercise of a power of Parliament conferred by the Constitution, it cannot be invalidated because of the supposed motives and/or ministerial inferences which induced it.

The Respondents’ submissions that a mere deletion of the provision has no effect on the constitution and entrenchment of the Public Service Commission’s impartiality in accordance with Article 60(4) of the constitution must be accepted and I so rule.

The constitution is sui generis and needs no subordinate legislation to reinforce itself.

Clause 1 of the Public Service (Amendment) Bill No. 18 of 2000 is therefore constitutional. It is not inconsistent with the provision of Article 60(4) of the Constitution.

Clause 2

In respect of clause 2 of the Public Service (Amendment) Bill, it amends section 18(3) of the Public Service Act No. 11 of 1998.

Section 18(3) provides as follows:

“(3)A Director general may only be removed from office after investigation by the Commission for incompetence, disability, bankruptcy, neglect of duty, misconduct or a breach of his or her performance agreement.”

The amendment sought is to add the words:

“or on directive by the Prime Minister.”

The respondents admitted that clause 2 of the said Bill is contrary to Article 60(4) of the Constitution.

On thsis, it is clear that that clause 2 of the Public Service (Amendment) Bill No. 18 of 2000 is unconstitutional in that it is inconsistent with Article 60(4) of the Constitution and I clare.

2. Submissions on the Government (Amendment) Bill No. 23 of 2000

The following are submissions made on behalf of the Referral Authority:

It is submitted that Clause 1 of the Government (Amendment) Bill is inconsistent with Articles 48(2) and 60(4) of the Constitution.

Clause 1 of the Bill deletes Section 9(4) of the Government Act No. 5 of 1998.

Section 9(4) of the Act provides as follows:

“(4) A Minister (including the Prime Minister) must not:

(a) interfere or attempt to interfere in public service in employment issues; or

(b) interfere or attempt to interfere in employment issues relating to the Teaching Service Commission, Judicial Service Commission and Police Service Commission.”

The effect of Section 9(4) of the said Act is to prohibit ministerial interference in employment issues in the Public Service Commission, the Judicial Service Commission, the Teaching Service Commission, and the Police Service Commission.

The effect of the amendment in clause 1 of the Bill is to remove the prohibition on ministerial interference.

It is submitted that such removal of Section 9(4) of the said Act would be considered to be inconsistent with Articles 48(2) and 60(4) of the Constitution.

Article 60(4) of the Constitution provides as follows:

“(2) The Judicial Service Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

Article 60(4) of the Constitution provides as follows:

“(4) The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

It is submitted that while the Teaching Service Commission and the Police Service Commission do not have similar protection under the Constitution as the Public Service Commission and the Judicial Service Commission and nor do they have such protection in their respective legislation, it would appear that it is the legislative intention to have these Commissions protected from interferences from any person.

It is, therefore, submitted that the spirit of the Constitution would apply to the Teaching Service Commission and the Police Service Commission and have them protected from any form of interference from any person.

It is submitted that it is not the intention of the legislature to have two important Commissions protected from any interference and to have the other two Commissions not

It is suggested that these four Commissions are ll important and do deserveserve equal protection from interference by any person.

The followings constitute the submissions made on behalf of the respondents:

The respondents turn their attention to the Government Bill and quite respectfully reject the President’s view with regard the mere deletion of Section 9(4) of the Government Act No. 5 of 1998.

They submitted that it is trite law that a mere deletion cannot be regarded as an infringement if the constitutional provisions continue to prevail.

It would be correct to assert this if the amendment Bill had the effect of asserting something other than what is contained in the Constitution.

Such is not the case. Police and Teaching Service Commissions’ powers and their impartially are not entrenchment provisions of the Constitution. That is why such a provision whilst it existed was itself a far too liberal construction of the Constitution.

The independence of the Judicial Service Commission and the Public Service Commission continue the same as they did prior to the inception of Public Service and Government Acts of 1998, as Supreme Law, having no more strenuous effect in subordinate law than they already did have under the Constitution.

They submitted finally in accordance with the above points that the President must bear the costs of the action.

COURT CONSIDERATIONS

The relevant constitutional and legislative provisions are as follows:

Article 48(2) of the Constitution says:

“(2) The Judicial Service Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

Article 60(4) provides:

“(4) The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.”

Section 9(4) of the Government Act No. 5 of 1998 provides as follows:

“(4) A Minister (including the Prime Minister) must not:

(a) interfere or attempt to interfere in public service employment issues; or

(b) interfere or attempt to interfere in employment issues relating to the Teaching Service Commission, Judicial Service Commission and Police Service Commission.”

Clause 1 of the Government (Amendment) Bill repeals Section 9(4) of the Government Act No. 5 of 1998.

Is the repeal/deletion of Section 9(4) of the Government Act No. 5 of 1998, contrary to Article 48(2) and Article 60(4) of the Constitution?

I am of opinion that it is not.

The Judicial Service Commission and the Public Service Commission are established under the Constitution. Their independence are respectively guaranteed and protected by Articles 48(2) and 60(4) of the Constitution.

A repeal or a mere deletion of a legislative provision cannot be regarded as an inconsistency if the constitutional provisions continue to prevail.

It is fundamentally important to understand that the duty of the Court is to control the constitutional validity of a bill or a provision of a bill in the light of an express provision of the Constitution and not otherwise.

The independence of the Judicial Service Commission and the Public Service Commission continue the same as provided under the Constitution. The protection of the independence of the Public Service Commission and the Judicial Service Commission by the Public Service and Government Acts of 1998, have no more strenuous effect in these Acts of Parliament, as subordinate law than they already did have under the Constitution, as the supreme law of the land. Therefore, after the removal by Parliament of the statutory protection of their independence, both Commissions are still and always protected in the exercise of their respective functions by the Constitution.

On the contrary, the Police Service Commission and the Teaching Service Commission are creatures of statutes. Their powers and impartiality are provided by Acts of Parliament. They are not entrenchment provisions of the Constitution. If Parliament decides to repeal section 9(4) of the Government Act No. 15 of 1998, that is a matter for Parliament alone. What the Court can only do is to determine whether the power exists, and if so, whether Parliament has in fact and substance acted within that power. There is no doubt that it is within the power of Parliament to repeal an Act or amend a provision of an Act, under Article 16(1) of the Constitution. The motives and/or objects (if any) are at the sole discretion of Parliament.

Therefore, the repeal or deletion of Section 9(4) of the Government Act No. 5 of 1998 is not contrary to the Constitution. There is no inconsistency.

Clause 1 of the Government (Amendment) Bill No. 23 of 2000 is not inconsistent with Articles 48(2) and 60(4) of the Constitution.

The President’s reference in respect to the Government (Amendment) Bill No. 23 of 2000 must fail and I so rule.

The final question for me to answer is this:

Is the Public Service (Amendment) Bill No. 18 of 2000 unconstitutional? (emphasis added)

I now consider whether the fact that clause 2 of the Public Service (Amendment) Bill, is unconstitutional, render the whole Public Service (Amendment) Bill No. 18 of 2000 unconstitutional. In my view, it is not. Clause 2 of the Public Service (Amendment) Bill No. 18 of 2000 amends section 18(3) of the Public Service Act No. 11 of 1998. Section 18(3) provides as follows:

“(3) A Director-General may only be removed from office after investigation by the Commission for incompetence, disability, bankruptcy, neglect of duty, misconduct or a breach of his or her performance agreement.”

The amendment sought by the respondents is to add the words:

“or on directive by the Prime Minister”.

This amendment which is declared inconsistent with Article 60(4) of the Constitution, is separate and independent of the rest of the said bill. It can be removed without affecting the constitutional validity of the Public Service (Amendment) Bill No.18 of 2000.

Article 47 of the Constitution provides:

“(1) The administration of justice is vested in the Judiciary, who are subject only to the Constitution and the law. If there is no rule of law applicable to a matter before it, a Court shall determine the matter according to substantial justice….”

Article 49(1) of the Constitution provides:

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

Section 219 of the CPC [CAP 136] provides:

“In the exercise of the jurisdiction of the Supreme Court under Articles 16(4), 39(3), 53(3) and 54 of the Constitution the opinion of the Supreme Court shall be issued as a ruling of the Court and shall be binding on all persons.”

VIII -DECISION/OPINION

Under the powers conferred on the Supreme Court by Articles 16(4), 47 and 49(1) of the Constitution, and section 219 of the CPC [CAP 136], I direct in the following way:-

1. That the following words of clause 2 of the Public Service (Amendment) Bill No. 18 of 2000 be removed:

“or on directive by the Prime Minister”.

I am, therefore, of opinion that, subject to the removal of these offending words, His Excellency, the President can sign the two Private Members’ Bills, namely:

The Public Service (Amendment) Bill No. 18 of 2000; and

The Government (Amendment) Bill No. 23 of 2000.

2. That I, now respectfully, invite His Excellency the President to do so.

3. That I further direct that each party will pay their own costs.

DATED at PORT-VILA, this 11^th DAY of AUGUST, 2000

BY THE COURT

Vincent LUNABEK J
Acting Chief Justice