President of the Republic v Speaker of Parliament [2012] VUSC 183; Constitutional Case 12-11 (10 August 2012)

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

CONSTITUTIONAL CASE No.12 OF 2011

BETWEEN:

HIS EXCELLENCY IOLU JOHNSON ABBIL KANIAPNIN,
The President of the Republic of Vanuatu
Applicant

AND:

HON. DUSTAN HILTON,
The Speaker of Parliament, Port-Vila
Respondent

THE DIRECTOR GENERALS
Interested Parties

Coram: Chief Justice V. Lunabek
Counsel:Mr Lent Tevi for Applicant
Mr Frederick Gilu of State Law Office for Respondent
Mr Less Napuati for Interested Parties

JUDGMENT

This is a Constitutional Referral by the President of the Republic of Vanuatu (the "Referral Authority") filed 27 September 2011 pursuant to Article 16(4) of the Constitution. The Referral challenges the following provisions of the Public Service (Amendment) Act No.1 of 2011 (the "Bill") as the President considers them to be inconsistent with Articles 57 and 60 of the Constitution, particularly sections 17A, 17B and 17C, 32B and 44(1)(b).

It is also alleged that section 37(8) of the Bill contravenes Articles 5(1)(d) and (k) of the Constitution.

In the Public Service Act [CAP.246] (the "Act") it was provided in section 18(1) and (2):

"18. Appointments of directors-general...

(1) An Appointment or promotion to the position of director-general..., regardless of the title or designation, must be made by the Commission.

(2) The Commission must prior to appointing or promoting a person to the position of director-general... follow the procedure set out hereunder -..."

(listed (a) to (e)).

Section 19A and 19B set out the grounds and procedure for removing directors-general by the Public Service Commission.

It is plain that directors-general were entitled to the protection afforded to public servants by the Constitution (Article 57(5)).

The Public Service Act [CAP.246] regulated the Public Service of which the directors-general were part by virtue of section 18(1) and (2), 19A and 19B, 26 and 44 of the Act. The Act (ss.19A, 27, 28, 29, 29A and 37) specified the various modes by which a public servant might leave the public service which include-

(a) On dismissal or removal in consequence of disciplinary proceedings;
(b) On compulsory retirement;
(c) On voluntary retirement;
(d) On resignation;
(e) On the abolition of office;
(f) In the case of a civil servant on probation, on termination of appointment.

The attention is now paid to the Constitution, for it is this which the provisions of the Bill (Public Service Amendment) Act No.1 of 2011 are said to violate.

Article 2 of the Constitution provides that it is the Supreme law of the Republic. Therefore, any other law inconsistent with it should be void to the extent of such inconsistency.

Chapter 9 of the Constitution concerns – Administration. It has two parts – Part 1 deals with the Public Service and Part II deals with Ombudsman. Relevantly, Part I dealing with – the Public Service, governs appointments to and the tenure of public offices. Provision is made for a Public Service Commission (P.S.C.). The PSC is so composed, structured and regulated as to ensure that it is independent and immune from political pressure, the object being to ensure that public servants are similarly independent and immune.

Articles 57, 58, 59 and 60 are relevant and central to this case:

"CHAPTER 9 - ADMINISTRATION

Part I - The Public Service

57. Public servants

(1) Public servants owe their allegiance to the Constitution and to the people of Vanuatu.

(2) Only citizens of Vanuatu shall be appointed to public office. The Public Service Commission shall determine other qualifications for appointment to the public service.

(3) No appointment shall be made to a post that has not been created in accordance with a law.

(4) The Prime Minister or the chairman of a Local Government Council may, exceptionally, make provision for the recruitment of staff for a specified period to meet unforeseen needs.

In urgent cases, the Public Service Commission may, after consulting the Ministers responsible for finance and public administration, make such a decision instead of the Prime Minister.

(5) For as long as their posts exist, public servants shall not be removed from their posts except in accordance with the Constitution.

(6) Public servants shall be given increments in their salary in accordance with the law.

(7) Public servants shall leave the public service upon reaching retirement age or upon being dismissed by the Public Service Commission. They shall not be demoted without consultation with the Public Service Commission.

(8) The security of tenure of public servants provided for in subarticle (5) shall not prevent such compulsory early retirement as may be decided by law in order to ensure the renewal of holders of public offices.

58. Exclusion of security of tenure in relation to political advisers and transfer of public servants:-

(1) The rule of security of tenure provided for in Article 57(5) shall- not apply to the personal political advisers of the Prime Minister and Ministers.

(2) Senior public servants in Ministries may be transferred by the Prime Minister to other posts of equivalent rank.

59. Membership of Public Service Commission

(1) The Public Service Commission shall be composed of five members appointed for 3 years by the President of the Republic after consultation with the Prime Minister.

(2) The President of the Republic shall appoint every year, from among the members of the Commission, a chairman who shall be responsible for organizing its proceedings.

(3) A person shall be disqualified for appointment as a member of the Commission if he is a member of Parliament, the National Council of Chiefs or a Local Government Council or if he exercises a position of responsibility within a political party.

(4) A person shall cease to be a member of the Commission if circumstances arise that, if he were not a member, would disqualify him for appointment as such.

60. Functions of Public Service Commission

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

(2) The Commission shall also be responsible for the discipline of public servants.

(3) The Commission shall have no authority over the members of the judiciary, the armed forces, the police and the teaching services.

(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 proposed Act deleted the position of the Director-General (section 3). It says:

"3. Sections 18 (headings)

Delete "directors-general and"."

Its section 4 says:

"4. Subsections 18(1), 18(2) Delete "directors-general or" (wherever occurring in these subsections)".

Its section 5 deletes ("director-general" under s.26(1) of the Act [CAP.246].

It is apparently clear that under the proposed Act, Parliament abolished the office of the director-general by deleting s.18 of the Act and established a new position of the director-general with a new status and regime under sections 17A, 17B and 17C of the Bill. The director-general will now be appointed by the Minister on the recommendation of the Commission under a contract of employment for a period of 4 years with one reappointment only.

The remuneration and allowances of the director-general is to be determined by the Minister after consultation with the Commission. The terms and conditions of appointment of a director-general are to be set out in the contract made between the Minister and the director-general.

Section 17B of the said proposed Act sets out the procedure for making a recommendation for the appointment of a director-general by the Minister. Section 17C provides the grounds for termination of appointment of a director-general by the Minister.

Sections 17A, 17B and 17C are set out below for ease of reference:

"17A - Appointment of a director-general

(1) The Minister on the recommendation of the Commission, is to appoint a person to be a director-general under a contract of employment for a period of 4 years and the person may be reappointed only once.

(2) The remuneration and allowances of a director-general is to be determined by the Minister after consultation with the Commission.

(3) The terms and conditions of appointment of a director-general are to be set out in the contract made between the Minister and the director-general.

17B - Procedure for making a recommendation

The Commission must, prior to making a recommendation under subsection 17A(1), abide by the following procedure:

(a) advertise the position in a newspaper or other form of media with a wide circulation in Vanuatu; and

(b) ensure the advertisement allows an applicant a minimum of 2 weeks in which to make an application; and

(c) provide an address as to where to send the application; and

(d) convene a panel of 3 independent persons to interview and require the panel, having regard to section 15 (imposing a duty to act as a good employer), to recommend a short list of the most competent and suitable applicants; and

(e) make the recommendation to the Minister from the short list.

17C - Grounds for termination of appointment of a director-general

A director-general may be terminated by the Minister on any of the following grounds:

(a) serious misconduct as defined in the Staff Manual; or

(b) on account of physical or mental incapacity to carry out his or her official duties efficiently; or

(c) incompetence as shown in the performance appraisal carried out by the Commission; or

(d) neglect of duty; or

(e) bankruptcy; or

(f) becomes a member of Parliament, Local Government Council, National Council of Chiefs, Municipal Council, or a member of the Public Service Commission, Police Service Commission or Teaching Service Commission."

After few conferences, the scope of the challenges was refocussed, refined and narrowed because counsel for the Referral Authority and counsel for the Directors-General as interested parties conceded that the provisions of the Bill referred to in the Referral were each and all consistent with the Constitution, namely: ss.17A, 17B, 17C, 32B, 36(8) and 44(1)(b).

The rational for the concession was that both counsel, rightly accepted the following constitutional principle that subject to the Constitution, Parliament has the plenary powers by Article 16(1) of the Constitution to legislate for the peace, order and good government of Vanuatu and in the exercise of those powers, Parliament may repeal or alter existing law. (See Attorney-General v. Timakata [1993] VUC2; [1980-1994] Van LR 679).

This was what Parliament intended through the Bill under challenge. This case should end there. However, yet during conferences, counsel consider section 50A of the Bill as it directly affects the current occupants of the position of directors-general appointed under s.18(1) of the Act. Counsel for the Referral Authority and counsel for the Interested Parties took issue with s.50A of the Bill. That is then the only issue remaining in this case. Section 50A provides:

"50A Transitional provision for director-general

(1) This section applies to any person who was employed as a director-general immediately before the commencement of this Act.

(2) A person who occupied the position of director-general before the commencement of this Act is to continue to be employed as a director-general for a period of 3 months commencing from the date on which this Act comes into force.

(3) A director-general's employment is deemed to be terminated by the Public Service Commission on the expiry of the period provided under subsection (2).

(4) A director-general, as a result of the termination under this section, is to be paid by the Commission on the expiry of the period provided under subsection (2), any severance or redundancy payments or other entitlements to which he or she is entitled to under this Act or any other Act."

It is common ground that until the Bill is enforced, the current directors-general appointed under s.18(1) of the Act, were holders of public offices in the Public Service and were persons engaged in the service of the Government in a civil capacity as senior public servants. Thus, their appointment, whether initially or on promotion or transfer and their removal and discipline, were within the exclusive power of the Public Service Commission as provided by Article 57(5) of the Constitution.

Counsel for the Referral Authority and counsel for the Interested Parties submitted that s.50A of the Bill is inconsistent with Articles 5(1(d) and (k) of the Constitution in that: the directors-general are terminated forthwith without being accorded the natural justice principle and that they are entitled to the same procedural fairness that would apply to any public servant, and they should not be treated differently.

The above submissions cannot stand for the reasons set out below. In Attorney-General v. Timakata [1993] VUC2; [1980-1994] Van LR 679), the Court of Appeal stated:

"The provisions of Article 5 of the Constitution must be given a generous interpretation: see Ong Ah Chuan v. Public Prosecutor [1981] AC 648 at 670. Clearly a right to the protection of the law must include a right to invoke the jurisdiction of the Courts to enforce the rights of the citizens. There is no justification for restricting the constitutional provision so that it ensures that a citizen may approach the Courts to seek the protection only of rights conferred by the Constitution; the protection of the law extends to all rights conferred by the law. The Parliament has the power subject to the Constitution to take away or modify rights but while a right exists the citizen may apply to the Courts to protect it." (my emphasis).

Termination or retirement, whether voluntary or compulsory, are modes of leaving the public service recognised under the provisions of the Public Service Act [CAP.246]. So is the abolition of an office held, which in the Interested Parties' case will be imminent. It is established that a legislature or (subject to any relevant legislation) a government may abolish a public office in the interest of good administration or good government: Reilly v. The King [1934] AC 176; Guy Benard v. the Republic of Vanuatu [2012] VUCA 4. In the exercise of Parliamentary legislative powers under Article 16(1) of the Constitution to abolish a public office, Parliament is not required to accord natural justice principle to any person or body as advanced by counsel for the Referral Authority. But what Parliament cannot do is to abrogate the right to the protection of the law (which includes a right to invoke the jurisdiction of the Courts) to enforce the rights of the citizens. In the present case, Parliament abolished the position of the director-general it has created under the Public Service Act [CAP.246] (section 18(1)). In doing so, Parliament by s.50A(2) provided a three months notice before a termination be deemed to be effected by the Public Service Commission under section 50A(3) of the Bill in accordance with Article 57(5) (7) of the Constitution. Also it provided for payment of any severance or redundancy payments or other entitlements to each of the director-general under the Public Service Act or any other Act (s.50A(4) of the Bill). Section 50A of the Bill is a transitional regime provision for the current occupants of the position of directors-general as a consequence of the abolition of their position or office effected by law. There is no breach of Article 5(1)(d).

The submissions that Parliament has breached Article 5(1)(k) of equal treatment under the law cannot be substantiated. The position of the director-general has been established specifically under section 18(1) of the Public Service Act [CAP.246] while that of a public servant is dealt with under section 23 of the Act. Under the Act a director-general is appointed and removed on the grounds and procedure set out in ss. 18(1), 19A and 19B of the Act [CAP.246]. The director-general has a different regime of appointment, discipline or removal than an ordinary public servant. Under the Bill, Parliament abolished the position and established a new position of the director-general with a different and new status and regime. The argument of difference of treatment with other public servants is misconceived. There is no violation of Article 5(1)(k) of the Constitution.

Counsel for the Referral Authority and counsel for the Interested Parties further submitted that s.50A is inconsistent with Article 57(5) and (8) of the Constitution in that:

(i) It purported to remove the director-general by giving them three months notice even when they have not reached retirement age or dismissed by the Public Service Commission.

(ii) The director-general's tenure of service as a public servant has now been limited to only three months and not until retirement or being dismissed by the Public Service Commission.

(iii) The director-general have not committed any serious misconduct or any wrong doing to warrant a dismissal.

These submissions are unsupportable. As it is mentioned earlier, Parliament by enactment established the position of the director-general under the Public Service Act [CAP.246] (section 18(1)). Again, Parliament by enactment deleted, or abolished the said position of the director-general by section 3 of the Public Service (Amendment) Act No.01 of 2011 (the Bill).

Article 57(5) is intended to ensure that public servants have security of tenure for as long as their posts exist. In this case, the positions of the directors-general have been abolished by enactment of Parliament. The directors-general may no longer avail themselves of the protection of security of tenure under Article 57(5) of the Constitution. Section 50A of the Bill does not violate Article 57(5) of the Constitution because what Parliament intended in the Public Service (Amendment) Act No.01 of 2011, is within the legislative powers of Parliament to legislate under Article 16(1) of the Constitution.

In this case, Parliament by the proposed enactment not only abolished the position of the directors-general but Parliament also established a new position of the director-general on contractual terms under the control of the Minister (ss.17A, 17B, 17C) and provided a transitional provision for current holders of the position of the director-general under s.50A of the Bill. Is section 50A inconsistent with Article 57(8)? The answer to this question is in the negative for reasons set out below.

Article 57(8) provides:

"The security of tenure of public servants provided for in sub-article (5) shall not prevent compulsory early retirement as may be decided by law in order to ensure the renewal of holders of public offices."

In the case of Public Service Commission v. Willie [1993] VUCA 1; [1980-1993] Van LR 673, the Court of Appeal stated:

"The general purposes of article 57 are clear, although the provisions of sub-article 8 occasion some difficulty. The article has the dual purpose of requiring public servants to remain politically neutral, and at the same time of protecting them from political interference. It is highly desirable, in any society, that the members of the Public Service do not allow political affiliations to influence their duty to the Government of the day in the service of the Nation and that they should not be removed or suffer any other disadvantage for purely political reasons. The Constitution seeks to give effect to that ideal.

Article 57(5) is intended to ensure that public servants have security of tenure for as long as their posts exist. That is made clear, not only by the words of that provision, but also by article 58, which makes exception in the case of personal political advisers of the Prime Minister and Ministers and allows senior public servants in Ministries to be transferred to other posts of equivalent rank. A similar policy is revealed by article 60(4) which protects the Public Service Commission from outside interference. Article 57(8) provides an exception to the general rule that a public servant has security of tenure. It permits compulsory early retirement subject to two conditions. First the retirement must be "decided by law". Secondly the purpose of the retirement must be to "ensure the renewal of holders of public offices....

When the Constitution refers to a retirement "decided by law" it of course means decided in accordance with law and that requires that the action taken to effect the retirement should comply with whatever legal rules are applicable whether they be statutory or otherwise.

There remains the question whether the retirement was made for the only purpose which the Constitution allows, namely "in order to ensure the renewal of holders of public officers." As we have ahead indicated, the meaning of those words presents difficulties. ... However the dominate purpose of Article 57 is to secure the tenure of Public Servants. Sub-article 8 must be given an effect consistent with that dominant intention. Perhaps the word "renewal" is used in the sense of "regenerate" or "recover (one's original strength, youth etc....)" and the intention of the section may be to allow the replacement of an officer who by reason of declining health, strength or efficiency can no longer perform his or her duties as satisfactorily as he once could but whose conduct does not warrant dismissal." (My emphasis)

As mentioned earlier, section 50A of the Bill is a "Transitional provision for director-general for director general". It resulted from the abolition of the office of the directors-general as senior public servants under s.18(1) of the Act and the establishment of the new position of the directors-general with a new status and regime as intended by Parliament under ss.17A, 17B and 17C of the Bill. The position of the director-general under s.18(1) of the Act is the most senior position a public servant can occupy under the Public Service Act [CAP.246]. There is no other equivalent position or rank in the public service. Thus, the Interested Parties could not be transferred to another position of equivalent rank as there is none on perusal of the Public Service Act [CAP.246]. It follows that they are deemed to be terminated by the Public Service Commission under s.50A(3) of the Bill with the effect of a compulsory early retirement decided by law [with a prior three months notice under s.50A(2) and an entitlement payment of severance or redundancy payments and other entitlements under this Act or any other law.]

Section 50A falls within the application of the proviso under Article 57(8) being that it was decided by law for such a circumstance to occur. In that sense, s.17A of the Bill depicts the nature intended that the purposes of such early retirement would allow continuous renewal of holders of public offices (as director-general) in the future. The Court accepts submissions of the respondent that the circumstance of this case invokes the application of Article 57(8) and so it would exempt directors-general from seeking a protection of tenure under Article 57(5) of the Constitution.

Section 50A of the Bill does not violate Article 57(8) of the Constitution.

It is finally submitted that s.50A of the Bill violates Article 60(4) of the Constitution. Article 60(4) provides:

"The Commission (that is the Public Service Commission) shall not be subject to the direction or control of any person or body in the exercise of its function."

Article 60(4) is intended to protect the Public Service Commission from outside interference – particularly political interference. It is not intended to prevent the Parliament from exercising its powers in a way which would affect the Commission in the exercise of its functions. That is what s.50A of the Bill intended. Section 50A does not violate Article 60(4) of the Constitution.

In conclusion, the enactment of the Public Service (Amendment) Act No.1 of 2011 did not violate the following provisions of the Constitution: Articles 5(1)(d), (k); 57 and 60.

ORDER

1. No provision of the Public Service (Amendment) Act No.1 of 2011 violates the Constitution.

2. The President is invited to assent to the Public Service (Amendment) Act No.1 of 2011.

3. There will be no order as to costs.

DATED at Port-Vila this 10th day of August 2012

BY THE COURT

Vincent LUNABEK

Chief Justice