IN THE SUPREME COURT
OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 98 of 1998
IGN="CENTER">BETW>BETWEEN:
ANDRE FRANCOIS
Applicant
AND:
The Honourable Justice TOMP TOMPKINS
First Respondent
AND:
The Honourable Acting Chief Justice LUNABEK
Second Respondent
Coram: Justice Regg Regget Marum
Counsel: Attorney General for the Applicant/Respondent
&nbbsp;&&nsp;;&nsp; &nsp; &nnbp;&&noger
de RobilRobillard for for the Respondent/Applicant
INTUTORYMENT TION
ALIGN="JUSTIFY">This was a ps a petitietition fion filed aled against the two judges of the Supreme Court
in Vanuatu under
Arti and 53 of the Constitution. The process was taken under Seer Section
218 of the Criminal Procedure Code. This petition arose out of civil case No. 162 of 1996
of which the Petitioner seeks 11 orders on page 6 of the petition of
the 4th
September 1998. Prior to disposing of the petition an application by the
Applicant/Respondent in this matter for the Attorney
General not to represent the two
judges in which a short judgement was delivered granting the Attorney General leave to
represent the two judges. Before resuming hearing this petition the Attorney General again
filed a motion seeking the following
orders:
1. That the first Respondent, the Honourable Justice Tompkins and the
second Respondent, the Honourable Acting Chief Justice
Lunabek be struck off the
proceedings.
2. The petition be dismissed
3. The petitioner pay the Respondents’ costs.
Their reasons are as follows:
1. The Petition is a gross abuse of process, without foundation,
vexations and frivolous;
2. The respondents are immune from such proceedings under Section 28 of
the Court [CAP 122];
3. The respondents are entitled under Sections 218(4) of the Criminal
Procedure Code [CAP 136] to apply for an order to dismiss the petition;
4. The citing of a judge in such a petition is in serious conflict with
the fundamental doctrine of judicial independence;
5. The Applicant has failed to comply with the proper procedure in such
a situation which is for the aggrieved party to appeal
in the usual manner;
In understanding the Respondent motion it is also proper to set out the
Applicant notice of the petition in which the Attorney
General motion applied to struck
out.
1. The petitioner complains about the manner in which proceedings No
162 of 1996 is being unfairly and unconstitutionally
rushed to final hearing, this
depriving the Applicant of a fair trial.
2. The first respondent has apparently been appointed an acting judge
of the Supreme Court of the Republic of Vanuatu and
has apparently heard matters relating
to proceeding of 162/1996 to proceeding to final hearing commencing on the 7th
September 1998. Reason for such adjournment was published on the 4th September
1998 and forwarded to the counsel for the Applicant in the petition by the Court at 10.00
am.
Against the Acting Chief Justice
The respondent is the Acting Chief Justice of this honourable Court and
as such has responsibilities of the Judiciary System.
Proceeding
Proceedings is mainly by way of submission by both counsels. In
proceeding with the matter it is to be noted that I have pursued
all the tendered
documents, written submissions over the matter and also their verbal submissions and will
proceed issue
by issue on the motion of the Attorney General. Also it is to be noted that
the Petition filed under Article 6 and 53 of the
Constitution is yet to be proceeded with.
In taking this course, there are other matters in submission which may not be addressed
in
this motion but may be properly addressed in the actual petition. However, if I do accept
the motion, then that could
be the end of the matter.
It is important to begin with the appointment of the first respondent.
Firstly what does the Constitution say on appointment of judges?
Article 47(5)states that:
The parliament may provide for the appointment by the President of
the Republic after consultation with the Judicial Service
Commission, of acting judge for
such period as may be set out in the instrument of appointment.
And Article 49 (2) provides that:
The Supreme Court shall consist of a Chief Justice and three other
judges.
Pursuant to Article 47(5), it refers to Parliament to exercise its
legislative power in making laws in regulating appointment
of acting judges.
The constitution has authorized two classes of judges:
1. Acting Judges under Article 47(5) and
2. Permanent Judges under Article 49(2)
Pursuant to Article 49(2) there are only two permanent judges in the
Supreme Court of Vanuatu, plus one acting Judge, which is
myself. Parliament in compliance
with such provisions has enacted the Court Act CAP 122 which also provides for appointment
of acting judges which Section 20 of the Act provides that:
If the office of a judge of the Supreme Court is vacant or if a
person holding the office of a judge is for any reasons unable
to perform the function of
the office, a person qualified for appointment as a judge of the Supreme Court may be
appointed to act as a judge.
In view of appointment of acting judge then article 49(4) should be
complied with which provides that:
A person shall not be qualified for appointment as a Chief Justice
or other judge of the Supreme Court unless he is qualified
to practice as a lawyer in
Vanuatu.
In facilitating the operation of Article 49(4), the Legal Practitioners
Act CAP 119 will be the most appropriate law as it provides for the admission and
registration of legal practitioner, their qualification,
discipline and other matter
connected therewith.
The Legal Practitioners Act under Section 5(2)(a) gives the power to
the Law Council to prescribe qualifications for Legal Practitioners which provides
that:
Without derogating from the generality of subsection (1) the Law
Council shall
(a) prescribed the qualification for legal practitioner
The power to make rules by the Law Council is provided for under
Section 15 of the Legal Practitioner’s Act which provides
the power to the Law
Council to make rules not inconsistent with the parent Act, and section 15 (2) (a)
provides that:
Without derogating from the generality of subsection (1) regulations
made pursuant to this section may provide for,
(a) the qualification required for application for registration as
legal practitioner.
In compliance with Section 15 of the Legal Practitioner Act the law
Council has made certain rules in regulating qualification
for registration as Legal
Practitioners in Vanuatu which is Order no. 22 of 1996. There was some argument advances
as to
the operation of such order but again no evidence in support of any irregularities
or non-compliance of any laws in its operation.
I accept that Order no. 22 of 1996 are
rules made and are valid under the Legal Practitioners’ Act and be complied with by
any person seeking registration to practice in the country.
Section 2 of the Regulation provides that:
No person shall be qualified to be registered as a Legal
practitioner unless he or she:
(a) holds a law degree or similar qualification from a university or
such other appropriate institution recognized by the
law council ; and
(b) (i)is a ni-Vanuatu citizen who is admitted as a barrister and
solicitor in the Commonwealth jurisdiction, or
(ii) not being a ni-Vanuatu citizen admitted in a Commonwealth
jurisdiction, has at least two years post graduate supervised
practical legal experience
acceptable to the law council.
(c) is a resident in Vanuatu.
In view of these qualification, there is no evidence that the first
Respondent is not an admitted barrister and solicitor. There
is only submission that he is
an acting judge in New Zealand. The only best evidence available is the instrument of
appointment
and judicial oath which expresses therein that the first Respondent is a judge
of the High Court of New Zealand, and to be an
Acting Judge in Vanuatu and in his Oath of
Allegiance he is a Queens’ Counsel. Both documents are public document and for
the
Court to take judicial notice of unless there are evidence to the contrary that the first
Respondent is not a judge
and not a Queens’ Counsel which there are none. Therefore
in absence of such evidence the Court can only safely accept
that the first Respondent is
qualified under Order 22 of 1996 under Section 2(a) and (b)(ii). The next issue is
residency
under Section 2(c) of order no. 22 of 1996.
Both the Constitution and the Interpretation Act do not define the word
"residence" and therefore the only available law that can be use is the
Immigration Act CAP 66. Section 1 of the said Act defines residence for the purpose of the
Act as follows:
With its cognate expression and grammatical variation, means
residence in Vanuatu which is not unlawful.
If that is so, then if the first Respondent's entry was unlawful then
at least the Principle Immigration Officer and the Minister
responsible under section 2 of
the said Act should have dealt with the first Respondent in the petition according to law.
If this was not the case then I can only assume in absence of any evidence from both
parties that the entry of the first
Respondent in this country was lawful.
If it was lawful then he is a resident pursuant to Section 2(c) of
Order No. 22 of 1996. The Respondent/Applicant in this motion
disputed that the first
respondent is not a resident in Vanuatu at the time he was appointed.
By virtue of section 1 in the definition of residence any person who
has lawfully entered the country is a resident.
Residency are of three kinds under the Immigration Act.
Group A - Visitor.
Visitor in Section 1 of the Act states:
Visitor means a person in Vanuatu for an intended stay of any period
not exceeding 4 months
And the law to this is Section 14 which states that:
The principle Immigration Officer may issue a visitor permit,
subject to such conditions as may be specified therein, to
a visitor if he is satisfied
that the visitor has a ticket or other means of travelling from Vanuatu to some other
country which he will be able to enter.
And under section 14(2) the visitor can remain in Vanuatu for a period
of 4 months in every 12 months.
Group B - Permit to enter and reside.
The Second class of residency is provided for under section 13(1) of
the Act which states:
The Principle Immigration Officer may upon application being made in
the form prescribed under this Act issue a permit in
the form prescribed under this Act
authorizing any person to enter and reside in Vanuatu, upon such conditions as the
Principle Immigration Officer thinks fit.
And pursuant to Section 13(2), the Principle Immigration Officer even
has a wider discretionary power to extend such stay.
Group C. Under section 12 of the Act where it authorizes
those people to enter without permit.
Section 12(1) states that:
(1) Subject to this section, a person who satisfies the Principal
Immigration Officer that he comes into any of the following
categories shall be entitled
to enter Vanuatu without having obtained a permit under this Act, namely-
(a) Any person granted exemption by the minister
(b) Any person employed by the Government
Subsection (2):
(2) The minister may declare that subject to such terms and
conditions as he may specify any person or class or group of
persons may enter Vanuatu
without a permit.
Therefore if any person who has entered Vanuatu in these categories,
then by virtue of the Immigration Act, a law in this country, he is a resident by law.
Neither the Applicant/Respondent nor the Respondent/Applicant in this
motion, by evidence justifies in which category the Respondent
enter this country. Again
in absence of such evidence I am satisfied that the first Respondent lawfully entered into
the
country to stay for a certain period as authorized by the Principle Immigration
Officer or Minister.
By instrument of appointment the first Respondent entered the country
to be employed and he was then employed by the government
as an acting judge and satisfies
the requirement of subsection 12(b) of the Immigration Act. And therefore he is a lawful
resident in Vanuatu and satisfies rule 2(c) of Order no. 22 of 1996 as a residence.
In addition to Order No. 22 of 1996 is Section 13, as amended, on temporary
admission, of the Principal Act that is the Legal Practitioners Act which gives much
wider discretion to the Chief Justice, which can bypass the requirements under Order no.
22 of 1996, to
admit to practice, as temporary admission, any person when he may see fit
after consulting the Attorney General for two main
reasons under Section 13:
(a) in the public interests
(b) on application by a Legal Practitioner.
So there are two situations in qualification in this jurisdiction under
the Legal Practitioner’s Act and Regulation which
the First Respondent has to satisfy
for qualification for appointment under Article 49(4):
1. By way of Rules made by the member of the Law Council on Conditional
Registration under Order no. 22 of 1996 and
2. Temporary admission under Section 13 as amended.
The first Respondent became an acting judge of the Supreme Court of
Vanuatu in accordance with his instrument of appointment
and he will have satisfy Section
13(a) of the Act. His appointment will be one of public interest which he will preside on
supreme court matters in the Supreme Court of Vanuatu and disposing of cases for parties
appearing in Court. In this instant
if the Chief Justice had accepted the first Respondent
pursuant to Section 13 of the Legal Practitioner Act that the first Respondent
was
qualified for appointment, then the Chief Justice will have discharged that discretionary
power over order 22 of 1996.
Again no evidence to suggest that the Chief Justice pursuant
to section 13 exercises such discretion. The only good evidence
that continue to stand
alone without being removed is in the Oath of Allegiance and instrument of appointment
that the
first respondent is a Judge of the High Court of New Zealand and a Queen’s
Counsel which are elementary of qualification
of being a lawyer. For these reasons I am
satisfied that the appointment of the first respondent satisfies the provisions of
Article
49 (4) of the Constitution.
Employment.
The Respondent/Applicant in this motion argued that the first
respondent was not properly employed, no contract of employment
and he cannot be a judge
in New Zealand and at the same time a judge in Vanuatu.
Again the only evidence apart from submission is the Oath of allegiance
and the Instrument of appointment.
In this situation there are two persons involved.
1. The Employer
2. The Employee
In this matter the first respondent is the employee by way of
instrument of appointment and the Government of the Republic of
Vanuatu is the employer
pursuant to section 20 of the Court Act which the Judicial Service Commission decide such
appointment
and recommends to the President for appointment. On recommendation for
appointment the Judicial Service Commission under Article
48(2) are not subject to
direction or control of any other person or body in the exercise of his function. In my
view the
employee should not be challenged over his employment but the employer and he is
only to satisfy the requirement of Article
49(4) which he has.
Another argument also advanced by the counsel for the Respondent in
this motion is that there was no contract of employment.
The Constitution and the Court
Act do not provide or expressly state any form of contract to be made. In absence of this
then the best contract of employment of the first Respondent is the instrument of
appointment which in itself gives the terms
and conditions of the first Respondent’s
employment. This was gazetted on the 4th September 1998 on Gazette No. 23.
The next issue is immunity under Section 28 of the Courts Act.
Both counsels shared the view that section 28 does not give total
immunity to Judges and Magistrates. The Applicant/Respondent
counsel in this motion
submitted that Judges cannot be sued unless the judge did not act judicially and acted in
bad faith,
whereas the Respondent/Applicant counsel in this motion submitted that section
28 does not give blanket for judges not to be
sued.
In view of what the counsels have submitted I find that section 28 of
the Court Act is a total immunity provision against judicial
officer, in the exercise of
their judicial function in ensuring the dispension of justice fairly. It would be a threat
to dispension of justice if a judge or magistrate every time he/she sits on the bench and
hanging over him or her that at the
end of the case he may be sued over the decision of
the case. If this is allowed then this will go against the intention of
Constitution under
Article 47 of which the Constitution allows that the Court to resolve proceeding according
to law. If
this is so then why judges and Magistrates be sued in deciding a case when the
process of appeal is available which the aggrieved
party can use. If it was not an
immunity provision then the Court will end up with no Judges or Magistrates willing to
take up judicial duties in fear of being sued. Further, the judicial officers upon their
judicial oath are to uphold the Constitution
and the law and to discharge their duties
under Article 47 of the Constitution without fear or favour, affection or ill will.
How
can this requirement of fair hearing be achieved when there is fear of being sued. If
justice is to take its course
in accordance with the Constitution and the law, let it be
decided by Judges and Magistrates without fear of being sued because
this is detrimental
to the very existence of the doctrine of judicial independence. In my view in exceptional
situations
if the judicial officer that discharges his/her judicial duties outside the
scope of the requirement of section 28 then this
can give rise for the judicial officer to
be sued, which in my view is very rare.
Acting Chief Justice as Second Respondent.
Pursuant to the Respondent/Applicant in this motion in his petition
against the second Respondent as one of administrative authority
which in his petition he
referred to the second Respondent, the Acting Chief Justice of this Honourable Court as
responsible
for the administration of the judicial system within the Republic of Vanuatu
and secondly seeking orders in paragraph (a) (d)
and (h) of his petition. All these
referred to administration. The Chief Justice has two functions:
(1)Administrative function
(2) Judicial function.
In judicial function a Chief Justice is not different to other Judges
of the Supreme Court or he does not have super judicial
function over other Judges nor he
either cannot interfere with a judicial function of another judge as this is known as a
judicial independence which only the judicial officer is the master of his or her own
judicial decision making. In the discharge
of a judicial function all judges in the
Supreme Court are of equal jurisdiction. The other area of the Chief Justice function
is
administrative functions of the judiciary system which the other judges do not have and
that is not judicial. This brings
me to the case No. 162 of 1996 which giving rise to the
Respondent/Applicant in the motion in filing such petition. The judge
in the matter as per
minute of the 3 September 1998 is the first Respondent, Tompkins J, the first Respondent
in the petition
and not the Acting Chief Justice as the second Respondent. If this is so
then the judicial function was only performed by Justice
Tompkins and the function of the
second Respondent was one of administration in allocating cases. Thus for example taking a
case and giving it to another judicial officer does not give rise to an infringement of a
right but that is the usual course
of the business of the Court in allocation of cases and
that is administration. If the order of the 3 September was the primary
cause giving rise
to the petition against the two Respondents then there is no cause of action lies against
the second
Respondent in the exercise of his administrative functions as the minute of 3rd
September is a judicial one. Therefore in the exercise of my power under section 218(4) of
the CPC I do find that the action
against the second respondent is without foundation and
should be dismissed and I do so dismiss.
Additional parties
I have heard the applicant's application for additional parties and
also the counsel for the two respondents in adding the two
other Court of Appeal Judges in
this same action. In the exercise of my discretion it is not proper for me to allow
additional
parties in this petition apart from the two respondents. This does not prevent
the applicant to exercise his right in pursuing
his interest against the other two judges
of the Appeal Court if he so wish. For these reasons I do not grant the applicant's
application to join the two parties.
DATED AT PORT-VILA, this 12th NOVEMBER 1998
REGGET MARUM J. MBE
Jack Kilu for the Attorney General
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