Article 6 states:-
“6. (1) Anyone who considers
that any o rights guaranteed to him bhim 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) &nbssp; The Supreme Court
urt
may make such orders, issue such writs and give such directions, including
the
payment of compensation, as it considers ariatenforc
ht.”
p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
Article 53 (1) and (2) state:-
class="MsoNormal" style="margin-top: 0; margin-bottom: 0">: 0">
“53 (1) Anyone who considers
that a provision of the Cthe 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) ;&nbssp;&nThe Suhe Supe Supe Supreme Court
has jurisdiction to determine the matter and to make such orders as it
consideproprto enforce the provisions of the Constitution.”
Paragr of the Defence
states “… as a matter of policy the Judiciary should not enquire iire 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 thatthe President of the Republic of Vanuatu and the
A 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
personrgue that their constitutional rights have been infringed bged 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.”
Thiwhat the petitioner is
arguing. Mr. Bebe says, as a public servant, the following prog provisions of the
Public Service Act have not been observed:-
1.
(i) &&nsp;;&nspp;&nssp; &nbp;
establish,peraoperative workplace relations based on consultation and
communication;
: 0">
<(ii) &nnsp;&&nsp;;
sp opan>observe the law.”
2. nbsp;
“ct>Se 8 - Sub- Subject to Article 60 of the Constitution and to the
provisions of this Act, the major functions of the Commission
are:-
<0">
i>
(b) ppe atmein
t and and promotion of employees on merit;”
3. &nbssp;
/ “Sec>“Section 15
(1) ; &nnsp;&&nsp;;&nbp; &nbp; &n p;
It shall ball 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 empl
<
(2) ;&nspp;&nssp; p; &nbp; &nbp;
(a) p; &nsp; &nbbsp;
(b) &nnbsp;; &nsp; &nsp; &&nbp;;
/ require uire the sehe selection of persons for appointmand pion to be
based upon merit;
(c) &nnbsp;; &nsp; &nsp; &&nbp;;
/ ……………
(d) & &nsp; &nbssp;
<(e) &nnsp;&&nsp;;
sp ppan>promote and encourage an equal opportunities programme.”
4.
The petitioner says he has be given no reasons for the transfer, there was no consultation with him or his
Dire 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.”
ebe says he has performed
well at what is a difficult and often unpopular job. He doue 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 e
transferred by the the Prime Minister to other posts of equivalent rank.”
<
It is accepted Mr. Bebe is a
seniblic servant and the posts concerned are of equivalent rank 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
potenconflict of articles in the Constitution he relied upon then 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 ArticArticle 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 mockery of
the Standing Orders if Article 27 was inte 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 overroverride the rights
guaranteed by Article
5.
lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
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
thataction which is taken pursuant to a specific power in the
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 serva the circumstances? The petitioner cites
Article 5 (1 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.
p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
The petitionys his terms
of employment are contained in the Act. It must be added that one of thef the
terms of his employment
is Article 58 (2). The Act sets out its principal
objects at section 3
“(asp; to establish an
Independent Pubt Public Service that is efficient in serving the Government, the
Parliament and
the public;
(b) ; tspprov de a
legal egal framework for the effective and fair employment, management and
leadership of employees;
and
(c) ; tspesta lish the
ri rights and obligations of employees.”
ass="MsoBoMsoBodyText3" align="left" style="text-align: left; margin-top: 0; margin-bottom: 0">
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.
Sect5 (3) states:-
“In determining a persons
merit for appointment or promotion to a post or salary increment regard must
be had to
(a) &nnsp;&&nsp;;&nspp;&nssp;
sp;
skill and ability to perform the duties and responsibilities of the
post; and
(b) &nnbsp;; &nsp; &nsp; &&nbp;;
/ the stan standard aard and efficiency of work performance;
(c) &nbbsp; &nbbsp; &nbp; &nbp;
……n/spa>
/p>
0pt">(d) &nbssp; &nbssp; &nbp;
……”
;
Section 16 is important, it
states:-
“The Commission is not
subject to direction by any ter or any other person or n or body in relation
to the exercise of
its powers under this Act.”
This reflects Artic (4) of
the Constitution which states that “The Commission shall not be subject
ct
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,
prons, disciplinary matters, and terminations in respect of t 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.”
class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
It would appear that Article 58
(2) was n contemplation here. The rest of Section 18 deals with theh the
recruitment and
employment of directors-general and directors.
Section 26 (1) is of
importance. It states:-
“The Commission may direct
that a dir-general, director or an e 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 ny
failure to comply.
Part V deals with a Code of
Conduct. Part VI Dispute and Disciplinary Procedure and PaII and VIII
deal with with miscellaneous
matters.
It would appear that Article 58
(2) was not in contemplation whe Act was being drafted. Apd. 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 whenuding Article 58 (2). That That purpose
is not difficult
to divine.
Article 39 (1) states:- “The
executive powethe 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
cise that power? It is pertinent to note that the power setr 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.
class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
In my judgment the answer is
twofold. Fi, 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 gooloyer shall
0">
class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 106.35pt; margin-top: 0; margin-bottom: 0">
(a) &nbbsp; &nsp; &nbbp;&nnbp;& &nb enan>ensure ture the fair and proper treatment of yees in all aspects of
their employment; and
(b) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
requhe stlectilection of persons for appointments and promotion to be
based upon merit; and
0">
<(c) ;&nspp;&nssp; p; &nbp;
p;
……<
(d) &nnbsp; &nnbsp; &nbp; &nbp;
rage thee the enhancement of the abilities of the individual
employees; and
