Bebe v Prime Minister [2002] VUSC 14; Civil Case 003 of 2002 (4 March 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.03 of 2002

BETWEEN:

MARK BEBE

Plaintiff/Applicant

AND:

THE PRIME MINISTER,

Honourable Edward Nipake Natapei

Defendant/Respondent

RULING UPON APPLICATION UNDER

Section 218 (5) CRIMINAL PROCEDURE CODE.

The post of Director of Finance is a difficult one, perhaps the most difficult in the Public Service. The petitioner was appointed on probation to that post on 9^th December 1998. By a letter dated 1^st October 2001 the appointment was made permanent.

By a letter dated 31^st December 2001 the respondent, the Prime Minister, used his power under Article 58 (2) of the Constitution to transfer the petitioner, Mr. Bebe, to Director of Strategic Management, a post of equivalent rank, with effect from 8^th January 2002.

On 7^th and 8^th January 2002 Mr. Bebe lodged his petition and sought the issue of prerogative writs and judicial review (claims since abandoned) and the issue of an injunction restraining the respondent from putting into effect the transfer.

The application for the injunction was refused, (see the Ruling dated 8^th January). Directions were given on 8^th January for, the progress of the matter. On 13^th February a ‘Statement of Defence was filed which, at paragraph 5, averred the petition was without foundation and was vexatious or frivolous. Argument upon that was heard on 25^th February.

At that hearing I had before me the affidavits of Mark Bebe dated 7^th January 2002, 8^th January 2002, 30^th January 2002 and 25^th February 2002, the Constitutional Petition filed on 31^st January 2002 and the Statement of Mark Bebe dated 8^th January 2002. I also have the ‘Statement of Defence’ filed on 13^th February 2002 and the affidavit of George Pakoasongi dated 13^th February 2002.

Section 218 (5) of the Criminal Procedure Code states:

“Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and enquire into it …”

The petitioner alleges:-

1. The transfer is not in accordance with the Government Act No. 5 of 1998, (now abandoned as a ground).

2. The respondent’s actions are ultra vires the Public Service Act No. 11 of 1998 “and/or constitute administrative conduct that is unreasonable or undertaken for improper purposes or otherwise unlawful and should be quashed as invalid”.

3. “Further and/or in the alternative, by virtue of the foregoing there have [been] two breaches of the Constitution of Vanuatu by the Respondent in that the following fundamental rights have been breached, namely:-

(i) the right to protection of law;

(ii) the right to equal treatment under the law or administrative action.”

4. “Further and/or in the alternative, the rules of natural justice have in all the above circumstances have been breached.”

Orders declaring the transfer letter void, reinstating the petitioner as Director of Finance and “damages” are sought.

Article 5 (1) states:-

“5. (1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health –

(d) protection of the law;

(k) equal treatment under the law or administrative action , except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.”

Article 6 states:-

“6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right;

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.”

Article 53 (1) and (2) state:-

“53 (1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress;

(2) The Supreme Court has jurisdiction to determine the matter and to make such orders as it considers appropriate to enforce the provisions of the Constitution.”

Paragraph 8 of the Defence states “… as a matter of policy the Judiciary should not enquire into the merits of the decision made by the Prime Minister as Head of the Executive.”

The petitioner is not inviting the Court to do that. In the President of the Republic of Vanuatu and the Attorney General –v- Maxime Carlot Korman and others, Appeal Case No. 8 of 1997, the Court of Appeal at page 8 stated:-

“It must be open to any person to argue that their constitutional rights have been infringed by such action [a power of the President contained within a provision of the Constitution in that case] and to seek relief from the Court by way of Constitutional Petition either pursuant to Article 6 or Article 53 of the Constitution. We reject any suggestion that any action which is taken pursuant to a specific power contained in the Constitution is beyond the jurisdiction of the Court to review.”

This is what the petitioner is arguing. Mr. Bebe says, as a public servant, the following provisions of the Public Service Act have not been observed:-

1. “Section 4- The guiding principles of the Public Service and the Public Service Commission are to:-

(i) establish, co-operative workplace relations based on consultation and communication;

(ii) observe the law.”

2. “Section 8 - Subject to Article 60 of the Constitution and to the provisions of this Act, the major functions of the Commission are:-

(b) the appointment and promotion of employees on merit;”

3. “Section 15

(1) It shall be the duty of each member of the Commission to ensure that the Commission shall in the performance of its functions, responsibilities and duties, be a good employer.

(2) The Commission shall as a good employer

(a) ensure the fair and proper treatment of employees in all aspects of their employment; and

(b) require the selection of persons for appointments and promotion to be based upon merit;

(c) ……………

(d) encourage the enhancement of the abilities of individual employees;

(e) promote and encourage an equal opportunities programme.”

4. Section 26 (1) – The Commission may direct that a director general, director or an employee transfer or take a posting from one position or locality to another within the Public Service but subject to the Commission’s obligations to act as a good employer.”

The petitioner says he has been given no reasons for the transfer, there was no consultation with him or his Director-General or Minister, no opportunity to give his views, only seven days notice was given and the decision was made “following instructions from his political cronies to have me removed due to my strict management style in managing all government spending.”

Mr. Bebe says he has performed well at what is a difficult and often unpopular job. He doubts the abilities of the person who was to take over his post.

Article 58 (2) of the Constitution states “Senior public servants in Ministries may be transferred by the Prime Minister to other posts of equivalent rank.”

It is accepted Mr. Bebe is a senior public servant and the posts concerned are of equivalent rank. He argues that that article must be subject to the fundamental rights provisions, specifically Article 5 (1) (d) protection of the law and (k) equal treatment under the law or administrative action and hence also the provisions of the Public Service Act.

To the extent there is a potential conflict of articles in the Constitution he relied upon the Court of Appeal dicta in the “The Three Speakers Case”, Tari and others –v- Natapei and others, Appeal Case 11 of 2001. At page 29 the Court stated:-

“There is tension between Article 53 of the Constitution and Article 27 when a breach is alleged to have happened in Parliament. In our judgment the immunity which is provided under Article 27 does not mean that a person can do what they like in Parliament without anyone being able to have recourse to the Court for a breach of their constitutional rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all times for all citizens …

“It would be a mockery of the Standing Orders if Article 27 was interpreted and used as a device to read down the right guaranteed by Article 5 of the Constitution so as to deny the constitutional rights of others which are preserved to them under Articles 6 and 53 of the Constitution.”

By the same reasoning the petitioner says Article 58 (2) cannot be used to override the rights guaranteed by Article 5.

The respondent argued that Article 58 (2) is clear. Whatever might be the rights of the petitioner under the Public Service Act, the framers of the Constitution have given the Prime Minister the power to transfer senior public servants to posts of equivalent rank. The Prime Minister is the Head of the Executive and this makes practical common sense in the day to day running of the Government. There can be no loss of job, no demotion or loss of rights or privileges. Indeed, the respondent asserts it is difficult to discern exactly what is the petitioner’s complaint other then he should have been consulted before the transfer and didn’t like the transfer itself.

I respectfully follow the dictum of the Court of Appeal in Appeal Case No. 8 of 1997,

“We reject any suggestion that any action which is taken pursuant to a specific power in the Constitution is beyond the jurisdiction of the Court to review.”

In my judgment the words of the Court of Appeal in the “Three Speakers Case” aptly fit this case. There is tension between Article 53 of the Constitution and Article 58 (2) when the Prime Minister has used that power and a person considers that use was in breach of his or her fundamental rights. Article 58 (2) does not mean that a Prime Minister can transfer senior civil servants without them being able to have recourse to the Court for a breach of their constitutional rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all times for all citizens.

What are the rights of the citizen, a senior public servant in the circumstances? The petitioner cites Article 5 (1) (d) protection of the law and 5 (1) (k) equal treatment under the law or administrative action. I have set out above the specific provisions of the Public Service Act which he says have not been complied with. The petitioner also alleges breaches of the rules of natural justice.

The petitioner says his terms of employment are contained in the Act. It must be added that one of the terms of his employment is Article 58 (2). The Act sets out its principal objects at section 3

“(a) to establish an Independent Public Service that is efficient in serving the Government, the Parliament and the public;

(b) to provide a legal framework for the effective and fair employment, management and leadership of employees; and

(c) to establish the rights and obligations of employees.”

Section 4 sets out the guiding principles for the service and the Commission. Part II Sections 7-14 deal with the Commission itself and its workings. Part III requires the Commission members to ensure the Commission acts as a good employer. At section 15 (2) is set out what is expected in that regard.

Section 15 (3) states:-

“In determining a persons merit for appointment or promotion to a post or salary increment regard must be had to

(a) skill and ability to perform the duties and responsibilities of the post; and

(b) the standard and efficiency of work performance;

(c) ……

(d) ……”

Section 16 is important, it states:-

“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.”

This reflects Article 60 (4) of the Constitution which states that “The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.” There is a potential in practice for tension to develop as a result of this provision and that of Article 58 (2). That tension does not appear to be present in this case.

Part IV deals with the Public Service itself. Section 17 states:-

“All appointments, promotions, disciplinary matters, and terminations in respect of the Public Service must be made in accordance with this Act.”

The word “appointment” is not specifically defined. However, from its context in the Act it would appear to mean appointment to the Service and from one post to another within the Service, and not just limited be to the former. Section 23 (1) states that:- “Any appointment to or within the Public Service is to be made by the Commission.”

Section 18 (1) states:- “An appointment or promotion to the post of director-general or director regardless of the title or designation, must be made by the Commission.”

It would appear that Article 58 (2) was not in contemplation here. The rest of Section 18 deals with the recruitment and employment of directors-general and directors.

Section 26 (1) is of importance. It states:-

“The Commission may direct that a director-general, director or an employee may transfer or take posting from one position or locality to another within the Public Service but subject to the Commissions’ obligations to act as a good employer.”

Subsection (2) provides for any failure to comply.

Part V deals with a Code of Conduct. Part VI Dispute and Disciplinary Procedure and Parts VII and VIII deal with miscellaneous matters.

It would appear that Article 58 (2) was not in contemplation when the Act was being drafted. Apart from the general principles stated, the various obligations and duties in respect of public servants are placed on the Commission.

The framers of the Constitution must have had a purpose in mind when including Article 58 (2). That purpose is not difficult to divine.

Article 39 (1) states:- “The executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law”. The Prime Minister, with the Council of Ministers, is charged with, “The general conduct of the Government of the Republic.” As such he must be in a position to appoint ministers and transfer senior public servants. This is what Articles 42 and 58 (2) are for.

How then may a Prime Minister exercise that power? It is pertinent to note that the power set out in Article 58 (2) is placed in Chapter 9 Administration and Part I – The Public Service. The other side of that coin, although necessarily the same coin, is what can a senior public servant expect when the Prime Minister exercises the power.

In my judgment the answer is twofold. Firstly, the transfer must be to a post of equivalent rank. Secondly, he or she can expect the same as when the Public Service Commission is exercising the power of transfer, as provided by Section 26 (1), namely “to act as a good employer”. This necessarily links an exercise of power under Article 58(2) to Section 15(2) of the Act. However, it is only those parts of section 15(2) which are pertinent when a “transfer” is being made. The Prime Minister is not entering into the field of all the other activities of an employer, and the requirements attaching thereto.

The good employer shall

(a) ensure the fair and proper treatment of employees in all aspects of their employment; and

(b) require the selection of persons for appointments and promotion to be based upon merit; and

(c) ……

(d) encourage the enhancement of the abilities of the individual employees; and

(e) promote and encourage an equal opportunities programme; and

(f) ……

(3) In determining a persons merit for appointment … regard must be had to:-

(g) skill and ability to perform the duties and responsibilities of the post and;

(h) the standard and efficiency of work performance;

(i) ……

(j) ……”

The petitioner's complaints in essence are that he was not consulted, no reason was given, the transfer was made on very short notice, it was done as a result of “instructions from … political cronies”, that he was doing a very good job in what is an extremely difficult post and there was no assessment of his performance.

The respondent has lodged one affidavit, that of George Pakoasongi, dated 13^th February 2002. I do not presume any significance from the fact that it is the Chairman of the Public Service Commission who is responding in relation to acts of the Prime Minister.

On 21^st May 2001 a letter was circulated by the Chairman of the Commission to all Directors-General. That set out the reasons for and principles of a rotation of public servants in senior positions. This policy is well known and accepted throughout industry and public service. There were follow-up letters. Mr. Bebe says he was unaware of this. The rotation of “Directors-General and Directors” was considered on 26^th September. By letter of 2^nd October Mr. Pakoasongi supplied the Prime Minister with the record of the meeting and stated “You will note Prime Minister, that I have added two other names to the list of possible transferees, namely that of Mark Bebe and …”. The face of this letter suggests it was the Chairman of the Public Service Commission who put forward the petitioner’s name.

The Prime Minister’s letter of 31^st December 2001 set out the power which was being exercised and the broad reason, “to achieve the operational effectiveness of the public service.” The petitioner by letter of 3^rd January and his Minister, by letter of 4^th January set out their positions.

There is nothing on the evidence before me to suggest that the petitioners work performance was being criticised, “developing a work plan” for employees or public servants is a standard management activity. Further, I can see nothing other then suspicion or speculation to say that the Prime Minister’s exercise of this power was done with some improper motive. There is no suggestion that the petitioner was not doing a good job. He was confirmed in his appointment in October 2001 and was in the post for three years.

A fuller and more detailed reason could have been given, particularly dealing with the strategy of rotation. There are no specific provisions requiring consultation before a transfer is made. It might have been better had such taken place, however I cannot find that that calls into question the use of the power granted under Article 58 (2) nor the petitioner’s position as a result. The policy of rotation/transfer itself had been made known as early as May 2001 to all Directors-General. The shortness of notice will have meant the hand-over required longer hours and concentrated work, but not in itself breached the petitioner's rights.

The petitioner had to be, and was, transferred to a post of equivalent rank. There is no loss of status, pay or privileges. There has been no adverse comment upon his performance. No breach of the principles of natural justice were argued, and it is difficult to see why such appears in the petition.

Accordingly I find this petition is without foundation and dismiss it. Whilst the Court will always entertain a petition where breach of a constitutional right is alleged, care must be taken to ensure that petitions do have a foundation and do not have the effect of hampering the effective and efficient business of Government.

Having heard argument, these will be no Order for costs given the fact the petitioner has not succeeded but bearing in mind the matters set out in the last paragraph but two.

Dated at Port Vila, this 4^th day of March 2002.

R.J. COVENTRY

JUDGE.