Bong v President of the Republic of Vanuatu [2012] VUSC 157; Judicial Review Case 14 of 2012 (10 August 2012)

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

Judicial Review Case No. 14 of 2012

BETWEEN:	JOSHUA BONG
	Claimant
AND:	THE PRESIDENT OF THE REPUBLIC OF VANUATU
	Defendant

Hearing: 03 August 2012

Before: Justice Robert Spear

Counsel: Saling Stephens for the Claimant
Avock Godden for the Defendant

Decision: 10 August 2012

JUDGMENT OF THE COURT

THIS IS AN ABRIDGED VERSION OF THE JUDGMENT FOR GENERAL DISTRIBUTION. IT OMITS THE TEXT OF THE MINISTER'S COMPLAINT IN THE INTEREST OF FAIRNESS TO ALL CONCERNED. THIS RESTRICTION WILL BE REVIEWED IN DUE COURSE.

1. The Claimant, Joshua Bong, is the Commissioner of Police. He was appointed to that office on 28 September 2009 by the President of the Republic of Vanuatu for a term commencing 1 October 2009 and ending 30 September 2012 pursuant to s. 10(1) Police Act [CAP 105].
   
2. On 17 June 2012, Mr Bong was given notice that the President had that day suspended him from the office of Commissioner of Police for a period of 3 months; that is, from 17 June 2012 to 16 September 2012.
   
3. Mr Bong claims that the suspension is unlawful and that it should be quashed.
   
4. The structure of this proceeding is set out in Trial Ruling No.1 that dealt with certain preliminary issues including the pleadings, the evidence and the objections.
   
5. This claim has some extra-ordinary aspects to it which have demanded that the case be dealt with on an urgent basis.
   
6. The jurisdiction of this Court in relation to the judicial review of administrative decisions of this nature relates to the legality or lawfulness of the decision in question. It is not for this court to examine and rule on the merits of the decision. The Court is to be concerned only with the legality or lawfulness of the decision by considering such matters as: whether the decision- maker (in this case the President) was lawfully entitled to make the decision; whether the decision-maker took into account matters that should not have been taken into account; whether the decision-maker did not take into account matter that should have been taken into account; whether there was procedural unfairness or a breach of natural justice, and whether the decision was irrational and could not properly have been made on material correctly before the decision-maker. It is necessary for the Court's consideration of a claim such as this to be so confined to ensure that this Court does not intrude in to the role of the decision-maker and that the Court remains concerned only whether the decision was one lawfully made.
   
7. There is little dispute about the essential facts or events leading up to the decision of the President on 17 June 2012 to suspend Mr Bong from office. Those events will be detailed in due course.
   
8. The challenge by Mr Stephens to the lawfulness of the decision of the President to suspend Mr Bong can be summarised as follows:-
   
   1. That the President does not have the power to suspend a Commissioner of Police.
      
   2. If the President does have the power to suspend then, in this case, the President has exercised that power unlawfully.
      
9. Those challenges will be given further attention later in this judgment. There is, however, one matter that needs to be addressed right from the outset. It emerges from paragraph 3 (m) of the Reply filed by Mr Bong:
   

"3 (m) (Mr Bong states that) he resumed duties (as Commissioner of Police) on 14th June 2012 as he is still the ongoing Commissioner of Police which is a constitutional post and the handover of responsibilities is only a policy matter but not the law."

10. It is important to emphasise that the position of Commissioner of Police is a statutory position and it most certainly is not a constitutional position. Indeed, the Vanuatu Police Force (VPF) was established by Parliament by the enactment of the Police Act [CAP 105]. All members of the VPF, including the Commissioner, are required to operate within the statutory bounds of that Act.
    
11. This is in distinct contrast with constitutional positions established by the Constitution such as those of the President, the Prime Minister, the Chief Justice and Justices of this Court, the Public Prosecutor and the Public Solicitor. Those holding such constitutional positions do so on the basis that their respective and defined constitutional roles cannot be interfered with, restricted, limited or hindered either by Parliament or by executive action. This Court is effectively the guardian of the Constitution and it has and will continue to act decisively and directly to prevent anyone attempting to subvert the authority of those holding constitutional office.
    
12. The Police Act established the Vanuatu Police Force and it put in to place a governance and management structure with some internal but conventional tension. The structure was clearly designed to ensure that the VPF and its members (including the Commissioner) operated within its statutory scheme.
    
13. Amendments were made to the Police Act by the Police (Amendment) Act No.22 of 2010 that commenced on 17 January 2011. Those amendments made some changes to the internal governance and management structure of the VPF. Those changes have some significance to the issues raised by this case particularly when considering the respective roles of the Minister responsible for the Police and the Police Service Commission.
    
14. The long title to the Police Act is in these terms:
    

"to provide for the establishment, organization, discipline, powers and duties of the Vanuatu Police Force and for matters incidental thereto".

15. The Police Act commenced on 12 May 1980 and obviously in anticipation of Independence. It declared the establishment of a Police force to be called the "Vanuatu Police Force" ^[1] and provided that it would consist of a Commissioner and, "such senior and subordinate officers as made from time to time be approved by the Minister"^[2] . The Minister is defined^[3] as the Minister for the time being responsible for the VPF which, for present purposes, is the Minister of Internal Affairs. A Police Service Commission was also established.^[4]
    
16. The functions of the Force are set out in s.4 of the Act and, in particular, that it, "shall be an essential duty of the Force to maintain unceasing vigilance for the prevention and suppression of crime"^[5]. The Police Act provides for the President, the Minister, the Police Service Commission and the Commissioner all to have separate and defined roles in relation to the governance of the VPF.
    
17. The Commissioner was also empowered generally with the command, superintendence and direction of the VPF and generally what might be considered the internal management of the VPF^[6].
    
18. The 2010 amendments introduced a new s. 1A which redefined the objects of the Police Act:
    

"1A. Objects of the Act

The principle objects of this Act are:

(a) to establish a Vanuatu Police Force that is efficient and effective in serving the Government and the citizens of the Republic of Vanuatu according to Law;

(b) to determine the powers and responsibilities of the Commissioner as the most senior member of the Force;

(c) to establish the Police Service Commission and to ensure that the Commission is able to assist with the functions of the Force and its members, including the Commissioner;

(d) to provide a legal framework for the appointment, powers, duties and discipline of members of the Force;

(e) to establish the rights and obligations of members of the Force.

(emphasis mine)

19. The role of the Police Service Commission was confined, prior to the 2010 amendments, to those responsibilities specifically identified in the Act. For example, the power to hear appeals on disciplinary measures taken by the Commissioner against subordinate officers or to hear disciplinary complaints against senior officers. The 2010 amendments increased the number of members of the Police Service Commission and expanded its role in a clear and defined manner.
    
20. The functions and powers of the Police Service Commission were defined in a new s. 9A
    

9A. Functions and powers of the Commission

(1) The Commission has the following functions:

• (a) to advise the President in respect of the appointment of the Commissioner; and
  
• (b) to appoint the Deputy Commissioner on the recommendation of the Minister pursuant to subsection 7B(1); and
  
• (c) to appoint senior officers of the Force on the recommendation of the Commissioner; and
  
• (d) to appoint persons with relevant qualifications from outside the Force on the recommendation of the Commissioner; and
  
• (e) to assist the Force in relation to the resignation, compulsory retirement, discharge and dismissal of members; and
  
• (f) to determine whether a member has been involved in politics or joined a trade union in contravention of this Act; and
  
• (g) to advise the Commissioner on issues relating to the conduct or practices of the Force or its members; and
  
• (h) to hear and determine disciplinary matters relating to members; and
  
• (i) to respond to all reasonable requests for assistance made by the Commissioner; and
  
• (j) to be responsible to administer and manage the Human Resource of the Force; and
  
• (k) to carry out such other functions as are conferred on the Commission by this Act or any other Act.
  

(2) Subject to this Act, the Commission is to act independently on matters affecting members of the Force including matters relating to the appointment, resignation, compulsory retirement, discharge, dismissal and discipline of members.

(3) The Commission must carry out its functions in a timely manner including in relation to the appointment, resignation, compulsory retirement, discharge, dismissal and discipline of members and must regularly advise any member affected on the progress of matters before the Commission.

(4) The Commission may make enquiries, or receive or prepare reports, as it thinks necessary, in relation to any matter before the Commission or such other matters as the Commissioner may reasonably request from the Commission.

(5) The Commission must comply with this Act in performing its functions.

(6) Subject to this Act, the Commission has the power to do all things necessary or convenient to be done for or in connection with the performance of its function.

(emphasis mine)

21. Any uncertainty about the role of the Commission and how it would interact with the Commissioner of Police was removed by the 2010 amendments and, in particular, by s.9A.
    
22. Mr Bong was appointed as the Commissioner of Police by the President under s. 10 of the Police Act.
    

10. Appointments

(1) The Commissioner of Police shall be appointed by the President acting on the advice of the Commission, for such period as the Commission shall advise.

(2) Other senior officers shall be appointed by the Commission, acting on the recommendation of the Commissioner.

(3) Subordinate officers and constables shall be appointed by the Commissioner.

23. The appointment by the President was required to be in accordance with the advice of the Police Service Commission of the time.
    
24. There was some material change to the appointment process by the 2010 amendments by the introduction of the need to consult with the Minister before the appointment was made:
    

7A. Appointment of Commissioner

(1) The President is to appoint a person in writing as the Commissioner of Police on the advice of the Commission after consultation with the Minister for a period of 5 years and the person is eligible for reappointment.

(2) The Commission must review the appointment made under subsection (1) after 3 years from the date on which the appointment is made.

(3) If the Commission is satisfied with the performance of the Commissioner after reviewing his or her appointment under subsection (2), the Commission must advise him or her and the Minister of its decision.

(4) The Commissioner is to continue in office for the remaining period of his or her term after being informed of the decision of the Commission.

(5) However, if the Commission is not satisfied with the performance of the Commissioner after reviewing his or her appointment under subsection (2), the Commission must after consultation with the Minister advise the President to terminate the appointment.

(6) The Commission must, prior to making a recommendation to the President for the appointment of a person as the Commissioner, make appropriate enquiries as to the applicant's integrity and character.

(7) A person must not be appointed as the Commissioner under subsection (1) unless:

• (a) the person is a citizen of Vanuatu; and
  
• (b) has served in a senior position within the Force for a period of at least 7 years; and
  
• (c) preferably has a tertiary qualification in the area of policing, military, management or Law.
  

(8) Subject to this Act and any other Act, the terms and conditions of appointment of the Commissioner, including salary, allowances and other entitlements are to be determined by the Commission after consultation with the Minister in a written form of agreement with the prior approval of the Council of Ministers.

(9) The Commissioner may resign from his or her office by giving 3 months notice in writing to the President.

(10) The Commissioner must give a copy of his or her resignation to the Minister and the Commission.

25. Finally, in this respect, a new s.45 B was introduced by the 2010 amendments in relation to internal investigations.
    

45B. Internal investigations

(1) The Minister may from time to time appoint in writing 3 persons to carry out internal investigations on any matter affecting a member or the Force for such period as he or she may determine.

(2) At least 1 person appointed under subsection (1) must have legal qualification from a recognised tertiary institution and 2 other persons are retired members of the Force.

(3) A report of the findings of the investigations must be produced to the Minister within 21 days after the completion of the report.

(4) The Minister is to provide a copy of the report to the Commissioner within 7 days after receiving such report.

(5) The Minister is to determine the terms and conditions of the appointment of the persons under this section.

(6) To avoid doubt, the term of appointment of a person under this section ceases immediately after the report of the findings of the investigation is produced to the Minister under subsection (3)."

26. All this illustrates and reflects the increased role of both the Commission and the Minister in the governance of the VPF by the 2010 amendments. This has some significance in this case given that the complaint about Mr Bong's competence as Commissioner of Police was made by the Minister to the Commission. Mr Bong appears to deny the entitlement of the Minister and the Commission to act on concerns that either might hold about his competence. However, both the Minister and the Commission can now be considered effectively as stake-holders, on behalf of the public, in the operation of the VPF.
    
27. On 18 May 2012, the Chairman of the Commission received a letter of from the Minister expressing his concern about Mr Bong's competency as Commissioner of Police. The letter is in these terms:
    

The text of the letter has been removed from this edition of the judgment to ensure that any inquiry in to the complaints by the Minister is able to be conducted in a manner fair to all concerned.

28. The Commission considered the letter of complaint over 18 and 19 May 2012. On 19 May 2012, it invited Mr Bong to attend a meeting with it so that the Commissioner could inform Mr Bong about the Minister's complaints. It does not appear that Mr Bong was provided with a copy of the Minister's letter at that time. At that meeting, the Police Service Commission informed Mr Bong that it intended to investigate the matters raised by the Minister and it requested that he take his outstanding leave while the investigation was undertaken. Mr Bong apparently agreed to do so and later that same day sent a letter to the Police Service Commission requesting its approval for him to take his outstanding annual leave from "the date of this letter". Mr Bong also recommended that Deputy Commissioner Caulton "take over the office (of Commissioner) during the period of my Annual Leave and Days Off".
    
29. Also on 19 May 2012, the Commission informed the Minister that it did not considered that it had the power to suspend the Commissioner of Police during the course of its investigation into the Minister's complaints. However, it also advised that Mr Bong had agreed to take accrued annual leave for a period of 4 months while the investigation into the complaints was undertaken.
    
30. It must be said that the arrangement where by Mr Bong took annual leave while the Police Service Commission undertook its enquiry into the complaints against Mr Bong appears as a measured and reasonable response by all concerned to a particular difficult and sensitive issue.
    
31. The Police Service Commission then wrote to Mr Bong by letter dated 28 May 2012 recording the complaints that it had received from the Minister and confirming that the Police Service Commission intended to investigate those complaints. Again, the full text of the letter from the Minister was not provided to Mr Bong at that time. In particular, the record of the complaints conveyed to Mr Bong omitted to mention that some of the complaints had been made to the Minister by a Deputy Commissioner of Police.
    
32. Mr Bong's almost immediate response was by a letter from his solicitor on 30 May 2012. In that letter, it was alleged that Mr Bong considered that he had been:
    

"forced by (the) Commission to take leave or face termination upon his position as Commissioner of Police against his will. Furthermore. (Mr Bong) further instructs that upon being forced out of his office, your commission appointed Deputy Commissioner of Police Mr Arthur Caulton to be Acting Commissioner of Police based on your ill-belief that there is vacancy in his office after his forced removal from office".

33. Mr Bong's solicitor attempted to construct a complaint about the appointment of Deputy Commissioner Caulton having been appointed as "Acting Commissioner". However, that is neither here nor there in respect of the critical issues that arise in this case. That notwithstanding, s. 7E of the Police Act (as amended) must have applied which provides that when a Commissioner is absent from duty (as would be the case when a Commissioner is on leave) the next senior member of the VPF available is to take over temporarily the role of Commissioner. Significantly, s.7E (2) leaves it for the Commissioner to determine the order of seniority of members for the purposes of such temporary succession.
    
34. It is accordingly difficult to understand this somewhat intemperate response from Mr Bong, particularly given Mr Bong's "recommendation" to the Police Service Commission that Deputy Commissioner Caulton hold the reins of office while Mr Bong was on leave.
    
35. The tone of the letter written by Mr Bong's solicitor is reflected in the evidence given by Mr Bong where he asserts that he was effectively forced to take leave.
    
36. While Mr Bong may have felt that he had little choice but to take leave while the Minister's complains were investigated, it should not be lost sight of that this appears from all quarters to be a sensible and responsible arrangement given the delicacy of the situation faced by both the Police Service Commission and Mr Bong. It enabled the VPF to continue operating under the command of Deputy Commissioner Caulton, in so far as the public could be concerned, while Mr Bong took accrued annual leave.
    
37. Regrettably, the complaint by the Minister spilled out into the public arena by various media reports, attributed by Mr Bong to the Minister, that at least suggested that Mr Bong had effectively being forced to take leave so that certain complains about his conduct as Commissioner could be investigated. That prompted Mr Bong to bring his first claim for judicial review (JR 12/2012).
    
38. In that first claim, Mr Bong specifically sought a review of the lawfulness of the Commission's "decision of 18 May 2012" (that is the date that is specified in the claim which, I expect, should more correctly have been 19 May 2012). The claim also sought Mr Bong's immediate reinstatement as Commissioner.
    
39. The first claim (JR 12/12) came before me for a preliminary conference on short notice on 8 June 2012. Tappeared to be o be some uncertainty on the part of Mr Bong as to what decision was to be challenged, whether there was a decisipable of being challenged and what relief was to be sought. As set out in the minute of 8 Jf 8 June 2012 in that proceeding, Mr Bong's concerns appeared to be directed more to his uncertainty whether he was the still Commissioner of Police rather than any decision of the Police Service Commission. However, not even the evidence given by Mr Bong in support of that claim went so far as to suggest that he had been displaced as Commissioner – just that he was leave. Senior State Counsel at that conference agreed that this appeared to be so. To ensure that there was no room for uncertainty in this respect, the conference was adjourned to 13 June 2012 so that State Counsel could clarify the position with the Commission.
    
40. When the conference resumed on 13 June 2012, Senior State Counsel confirmed that the current position was as previously understood – that is, that Mr Bong remained the Commissioner of Police and thathe was simply on leave all as agreed between the Commission and Mr Bong so that the Minister's complaints could be inquired into. Once that confirmation was given, Mr Bong discontinued his claim and that brought that proceeding to an end.
    
41. Later that same day (13 June 2012), Mr Bong wrote to the Commission stating that he had "relinquished" his leave and that he would be resuming his duties as Commissioner the following day. In that letter of 13 June 2012 Mr Bong stated:
    

" I was pressure by (the Commission) to write such letter (requesting leave of absence) when I do not really understand the significant of submitting such an urgent request directed to me by ( the Commission) on 19th May, 2012 and at extremely short notice".

42. Mr Bong concluded that letter with the requirement that Deputy Commissioner Caulton hand over the duties and responsibilities of the office of Commissioner to Mr Bong at 10.00am Thursday 14 June 2012.
    
43. Mr Ata explains in his evidence that Mr Bong returned to the Office of the Commissioner of Police on Thursday 14 June 2012 but the hand-over could not be made as Deputy Commissioner Caulton was unavailable due to his required attendance at the opening ceremony of the ACP/EU Conference.
    
44. Mr Ata, as Chairman of the Commission, informed the other members of the Commission that Mr Bong intended to return to office. The Commission then met and concluded that, if Mr Bong did return to office, this would likely hinder any inquiry into the Minister's complaints. The Commission then sought advice from the Attorney General in respect of the difficult position in which the Commission found itself.
    
45. On Friday 15 June 2012, the Commission received written advice from the Attorney General that the Commission had no disciplinary powers over a Commissioner of Police and that its only available recourse was to lodge a complaint with the Ombudsman on the basis that Mr Bong has breached the Leadership Code [CAP 240].
    
46. Later that same day, Mr Ata received advice from Deputy Commissioner Caulton and a Superintendent Carlot that Mr Bong had lodged a complaint with the criminal investigation division of the VPF against both Mr Ata and Deputy Commissioner Coulton for the offence of inciting mutiny. That is a criminal offense under s.46 of the Police Act but one that can be committed only by a member of the VPF (and thus not the Chairman of the Police Service Commission). It is a serious charge and, on conviction, it carries a maximum penalty of 5 years' imprisonment.
    
47. It does not appear, however, that either Mr Ata or the other members of the Commission appreciated at the time that they were not susceptible to a prosecution under s. 46 as they were not members of the VPF.
    
48. Unsurprisingly, both Mr Ata and the other members of the Police Service Commission became concerned that they would be at risk of being arrested on the direction of Mr Bong if he resumed his duties as Commissioner of Police and the Commission continued with an inquiry into the Minister's complaints.
    
49. During the evening of 15 June 2012, the Prime Minister convened a conference with Mr Ata (as Chairman of the Commission) and other senior government officials, including the Attorney General, to ascertain how best to dealt with this escalating issue. It had become apparent by that stage that a division within the VPF had developed and clearly the concern was that unless some measured control was introduced, there was a risk of serious civil disturbance. The consensus reached by those at the meeting was that there should be an inquiry into the Minister's complaint about Mr Bong although it was recognised that, given Mr Bong's intransigence, this could not be achieved if Mr Bong was in command of the VPF as Commissioner.
    
50. The Commission met again under urgency the following day (Saturday, 16 June 2012) when it was briefed by Mr Ata on the outcome of the Prime Minister's conference. The Commission then sought further advice of the Attorney General as, by then, the individual members of the Commission had become concerned about their personal safety and whether they would exposed to arrest if Mr Bong regained command of the Police.
    
51. The advice of the Attorney General received later that day confirmed his earlier advice that the Police Act did not provide the Commission with the direct power to suspend the Commissioner or otherwise restrain him from taking up the reins of office while an investigation was being undertaken of the Minister's complaints. However, the Attorney General advised that by application of s. 21 of the Interpretation Act CAP 132, as the President had the power to appoint a Commissioner of Police, the President also had the power to "remove, suspend, reappoint or reinstate any such person". The Attorney General concluded his advice:
    

"If the Commission is resilient in its consideration that the cause of action to take is to advise the President to suspend the Commissioner, then it must prior to advising the President, consult with the Minister....."

52. Mr Ata confirms that, following that advice, the Commission resolved to seek the suspension of the Commissioner. Mr Ata was allocated the responsibility of consulting the Minister about the Commission's decision. Mr Ata then attended the President on Sunday 17 June 2012 and advised the President on the matters before the Commission and the resolve of the Commission to seek Mr Bong's suspension.
    
53. The President then duly suspended Mr Bong from his position as the Commissioner of Police for a period of three months.
    
54. Mr Stephens submitted that the President does not have the power to suspend a Commissioner of Police. In particular, he argued that s.21 of the Interpretation Act had no application to the Police Act as the Police Act was " not an Act of general application" and that it "does not apply generally across the board". As best as I could understand that argument, it appeared that Mr Stephens contended that the Police Act was akin to a private Act and not amenable to the provisions of the Interpretation Act.
    
55. I do not accept that submission. Mr Stephens cited no authority for it. The Interpretation Act is an act of Parliament and thus part of the law of Vanuatu. It applies to all statutes (and other statutory instruments) unless it is expressly excluded. In particular, it applies to the Police Act. I simply do not understand Mr Stephen's attempt to distinguish the Police Act in this way.
    
56. Mr Bong was appointed under s.10 of the Police Act which section has since been repealed by the 2010 amendments. The new provision for the appointment of a Commissioner by the President under s.7A of the Police Act (as amended) is slightly different to that which applied when Mr Bong was appointed but to no material significance
    
57. In both the initial s.10 under which Mr Bong was appointed and the current s.7A, the President is required to make the appointment in accordance with the advice the President receives from the Commission. Section7A introduced an additional requirement which required consultation with the Minister.
    

7A. Appointment of Commissioner

(1) The President is to appoint a person in writing as the Commissioner of Police on the advice of the Commission after consultation with the Minister for a period of 5 years and the person is eligible for reappointment.

58. The way that s.7A (1) is drafted suggests that the President is required to make the appointment in accordance with the advice of the Commission but only after the President also consults with the Minister. That is surely not what was intended by Parliament. It could provide a conflict between the advice of the Commission and the views of the Minister as to the appointment. That would not have been the intention of Parliament who would not wish to place the burdon on the President of having to address such a conflict. The intention would surely have been for the Commission to consult with the Minister prior to advising the President on the appointment. That is indeed the interpretation taken by the Attorney General in the concluding paragraph of his letter to the Police Service Commission of 16 June 2012.
    
59. It is clear from Mr Ata's evidence, which is unchallenged, that the Commission duly consulted the Minister prior to advising the President of the circumstances that the Commission considered required the suspension of the Commissioner.
    
60. Mr Stephens further argued that the President has the power only to terminate a Commissioner of Police from office pursuant to s.7A of the Police Act and that if Parliament had intended that the President would also have the power of suspension then it would have expressly provided for that.
    
61. There is nothing in that argument. S.21 of the Interpretation Act clearly applies and relates to the power of the President to appoint a Commissioner of Police which is to be interpreted as including a power to suspend.
    
62. Mr Stephens further submitted that if the President did have the power to suspend, then he exercised that power unlawfully in this case. That submission relied on the following points:
    
    1. The President must form his own view as to whether suspension is required on the material properly before him;
       
    2. That the advice the President received from the Commission was tainted as it was designed to achieve an "ulterior motive";
       
    100. That Mr Bong was denied his right to be heard.
         
63. It is necessary to say something about the role of the President which is defined by Article 33 of the Constitution. It declares that the President shall be the "Head of the Republic" and " shall symbolized the Unity of the Nation". In a recent case, on quite different facts, the Chief Justice stated,
    

"The President's role is essentially a symbolic one, and the extent to which he may exert influence or control over the Government is very limited. ^[7]

64. That case related to the question as to whether the President was able to refuse to give his assent to a bill passed by Parliament.
    
65. The President is required to act in accordance with the advice he receives from the Commission in relation to the suspension of a Commissioner of Police. Following the enactment of s.7A, the Commission is required to consult with the Minister before providing advice to the President that the Commissioner of Police should be suspended. In this case, all those steps were taken.
    
66. This is not a situation where the President is required to form his own view of the issues. He is required by law to respond to the advice from the Commission in this respect.
    
67. The President would, however, be entitled to enquire of the Commission whether the responsible Minister had been consulted prior to the Commission advising him that suspension was warranted. Arguably, the President and he could refuse to accept or act on the advice of the Commission until he was sure that the Minister had been consulted. However, if that statutory requirement has been satisfied and the President is satisfied that the advice that he is receiving is indeed in accordance with the resolution of the Commission, the President is required to act in accordance with it.
    
68. A broader view is that this review should have regard to the determination of the Commission to advise the President that Mr Bong should be suspended from office. In that respect, I have been unable to find fault with the approach taken by the Police Service Commission that was placed in a most difficult position between the Minister and the Commissioner. The Commission's difficulty was exacerbated to a considerable degree by the manner in which Mr Bong conducted himself. After agreeing to take leave while the Minister's complaint was being enquired into, Mr Bong decided to return to office seemingly without appreciating the difficulty that this posed to the Commission who were still faced with dealing with the complaint. Furthermore, the laying of charges of inciting mutiny against its Chairman justifiably left the Commission concerned that each of its members might well be arrested on the direction of Mr Bong if he was able to take up the reins of office again from Deputy Commissioner Caulton and the Commission continued with the inquiry.
    
69. The imperative for the Commission was not so much the question as to who was acting as the Commissioner of Police but more the need for the VPF to function effectively as the law enforcement agency of the Republic of Vanuatu. Given that the scheme of the Police Act places a responsibility on the Commission to "advise the Commissioner on issues relating to the conduct or practices of the Force and its members", there is a clear and continuing need for there to be a ongoing and workable relationship between the Commission and the Commissioner. By the time the Commission had determined that Mr Bong should be suspended, the Commission justifiably appreciated that its relationship with Mr Bong had completely broken down.
    
70. I have been unable to identify in the evidence any ulterior motive behind the Commission's decision to seek the suspension of Mr Bong. Nor was Mr Stephens' able to articulate what that ulterior and thus improper motive might be.
    
71. Finally, Mr Bong complains that he had a right to be heard on the issue of suspension as a matter of natural justice. However, he was heard by the Commission on the issue of the Minister's complaint. There is nothing to suggest that he would not have been dealt with lawfully (in accordance with natural justice) if he had stayed on leave and the inquiry in to the matters raised by the Minister were then inquired into. Unfortunately, Mr Bong attempted to renege on that arrangement and compounded the difficulties for all concerned by laying complaints of inciting mutiny against not only the Deputy Commissioner of Police (whom he had nominated to take office in his absence) but also the Chairman of the Commission.
    
72. Mr Bong's actions over 14 and 15 June 2012 clearly caused concerns with the Commission and indeed also the Prime Minister as to his competence to command the VPF.
    
73. What was sought was not dismissal from office but suspension pending the inquiry into the matters raised by the Minister's complaint. It was for a fixed term of three months which would probably have been sufficient for the inquiry to be concluded if Mr Bong had not brought this challenge to the suspension..
    
74. The exigencies of the prevailing circumstances, largely created by Mr Bong, justified the Commission taking immediate action in the public interest without giving Mr Bong notice of its intention to seek suspension much less an opportunity to be heard.
    
75. Accordingly, I consider that there was nothing unlawful or illegal in the decision of the President made on 17 June 2012 to suspend Mr Bong from the office of Commissioner of Police. By extension, the advice that the President received from the Commission that Mr Bong should be suspended from office was not irrational or unreasonable having regard to the situation that had developed.
    
76. I note in conclusion that the suspension is to expire on 16 September 2012 and that Mr Bong's term of office expires on the 30th September 2012. While that three month term of suspension was obviously designed to permit sufficient time for the inquiry to be conducted, Mr Bong's challenge to his suspension has meant that the inquiry has apparently not yet commenced. That is a matter that will need to be addressed by the Public Service Commission given the difficulty that it now has working with Mr Bong.
    
77. For these reasons, the claim is dismissed.
    
78. The defendant is entitled to costs on a standard basis to be taxed if not agreed.
    

BY THE COURT

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^[1] s. 2 Police Act [CAP 105]
^[2] s. 3
^[3] s.1
^[4] s. 9
^[5] s. 4 (1)
^[6] s. 6
^[7] The Republic of Vanuatu v The President of the Republic of Vanuatu: Supreme Court; 8 June 2012