IN THE HIGH COURT OF TUVALU

CIVIL JURISDICTION

Case NO: 3/02

KAMUTA I.ATASI
Applicant
v

R ex parte ATTORNEY GENERAL
Respondent

James Duckworth for applicant
Attorney General for respondent

Hearing 12 August 2002, 11 April and 25 September 2003
Judgment: 30 September 2003

Judgment

The applicant in this case is a Member of Parliament for Funafuti and was previously Prime Minister of Tuvalu from 1993-6. He seeks a declaration that appointments of Members of Parliament to positions described variously as Special Ministerial Advisers and Parliamentarians with Special Responsibilities and, in one case, as Chairman of a Public Service Reform Committee by the Governments of Bikenibeu Paeniu, lonatana lonatana and Faimalaga Luka were unconstitutional and therefore ultra vires.

The Court has considered detailed and carefully researched submissions from counsel and records its gratitude for their assistance. Whilst there are no such appointments at present and so the issue could be considered moot, both parties have asked that the Court give judgment in the matter to clarify the position far future governments.

The parties filed a statement of agreed facts which, as far as relevant, states:

"1. That the Governments of Rt Hon Bikenibeu Paeniu MP (1998-9), Rt Hon lonatana lonatana MP (1999-2000) and Faimalaga Luka MP (2001) did employ Special Ministerial Advisers under contract. Further it is admitted that the Government of the Rt Hon Koloa Talake (2001-2) employed a Special Ministerial Adviser…..;

2. that the Special Ministerial Advisers were elected Members of Parliament;

3. that they were Members of Parliament who helped the Government to form a majority;

4. that they were employed under a standard contract provided by the Government of Tuvalu which gave them an additional wage and privileges (including allowances and travelling expenses) to that they already received as a Member of Parliament;

5….."

The Contracts

Whilst the details vary, all the contracts exhibited have a number of provisions in common. In particular:

1. the contract is between the Government of Tuvalu as employer and the particular employee;

2. the employee is to act in accordance with the directions of the employer and to place his whole time at the disposal of the employer and will not engage in or be concerned with any other business except with express approval of the employer;

3. the employee will receive a salary;

4. the employee will receive a government house rent free and free gas and electricity;

5. the employee shall have not more than four weeks leave prior to any Parliamentary session for constituency purposes or two weeks in the case of Koloa Talake;

6. under the heading "General Administrative Orders" the following terms:

(a) This contract of employment entitles the employee to the benefits of the GAO. Save and except that those GAO dealing with retirement benefits and pension shall be excluded and have no effect with respect to the employee and his contract of employment.

(b) Matters not covered by the terms of this agreement shall be governed by the General Administrative Orders (GAO) for the time being in force or where not directly applicable, to the degree which conforms with Government policy within the Public Service."

The period of service was either for one or two years renewable only by mutual consent of the parties. In one case (that of Teagai Esekia as Parliamentarian with Special Responsibilities), the contract was for six months "or until the date the curry Parliament dissolves".

All the contracts (again with the exception of that of Teagai Esekia) stated that the salary would be "at the bottom of level 6 of the Tuvalu Public Service Scale". In Teagai Esekia's contract, the sum stated was the figure appropriate for level 6.

The Applicant's Challenge

The respondent suggests this application carries an implication of bad faith. There can be little doubt about that. The applicant claims unequivocally that these Members were appointed as a reward for supporting Government rather than for any other purpose and with little or no regard to any special skill or expertise. They have only been selected from Members of the House who support the Government. His case is that these were quite clearly appointments of supporters of the government simply to encourage them to continue to support it by giving them an additional income and some of the privileges normally enjoyed by Ministers.

Under the Constitution, the number of Ministers apart from the Prime Minister is limited to one third of the total Members of Parliament. At present there are fifteen members and so any Government needs to ensure the support of two members outside the Cabinet to achieve a majority. By bestowing benefits on its supporters who have not received ministerial posts, the Government is in effect buying or at least rewarding their loyalty.

The applicant points out that these are not posts in the Civil List but were specially created by Cabinet and the incumbents were appointed by Cabinet. The limited field from which the candidates were selected appears to leave no ground for selection on merit and, in fact, they do not have any special technical expertise or skill and must be seen as having been appointed solely because they are members of the Government caucus.

The Respondent's Case

There is no dispute that the appointments were made by Cabinet. In his submissions the Attorney General points out that "the Cabinet, pursuant to its executive powers [under sections 76 and 77 of the Constitution] approved the appointment of SMAs to assist Ministers in the performance of their duties. Those appointments were made by the Government outside the ambit of the Public Service".

The respondent's case is that the decision of Cabinet to appoint these advisers is an executive decision that shall not be questioned in any court. It is, the Attorney General points out, a principle of administrative law that, while executive acts can be reviewed by the courts to determine the legality of the acts, the courts cannot go behind the acts to determine the motive for such acts. I accept that states the law accurately and, whilst the agreed facts in this case give some support to the applicant's suggestions of a questionable motive, the answer does not he in the motive of the appointing Government. Many perfectly legal acts are performed with improper motives but cannot be challenged simply on that basis.

Once appointed it is not disputed that the appointees carried out the duties assigned to them and the respondent has submitted affidavit evidence that the appointees were given office space and attended at their place of work.

The respondent cites the case of Liversidge v Anderson [1941] 3 All ER 338 as authority that executive acts cannot be questioned. The majority decision in that case has long been considered wrong and the reasoning in Lord Atkin's courageous dissent has been approved and extended on many occasions. On the authority of a line of cases up to, and in particular, the CCSU case; Council of Civil Service Unions v Minister for the Civil Service [1985] LRC (Const) 948, the courts have confirmed power of the courts to question acts of the executive on grounds of illegality, irrationality and procedural propriety. Without citing the numerous passages and authorities in support, I am satisfied that this Court has power to review the decision of the Cabinet to the extent necessary to ascertain whether any of those grounds apply.

The applicant's objection clearly stems from a sense that such appointments from a small pool of supporters are quite simply wrong in principle. However he needs to establish illegality and he suggests that will be demonstrated if these appointments were made in excess of Cabinet's powers.

The Separation of Powers

He suggests that the appointments are a breach of the concept of the separation of powers upon which our Constitution is based. The whole tenor of the Constitution is that members of the legislature should be separate from those of the executive government. These appointments mean that Members of Parliament as members of the legislature are effectively becoming part of the executive as well.

No legal system has achieved a perfect separation between the three main institutions of state and the least clear line of demarcation lies between the executive and the legislature. The appointment of members of the Cabinet from the elected Members of the House is one example.

However, it is clear that many provisions of the Constitution attempt to preserve the distinction. Thus a candidate will not be qualified to be elected if, with a few prescribed exceptions, he holds or is acting in any office or position in a State Service.

In order to ascertain whether these appointments are lawful, it is necessary to consider whether Cabinet has the power to create such positions, whether it can appoint persons to them and what effect, if the appointee is a Member of Parliament, it will have vis a vis his position as such a Member.

However, in order to answer these the court must first consider the status of the posts themselves and, in particular, whether they were appointments to the Public Service. It is clear that Cabinet did not intend to make appointments to the Public Service but the question for the court is not the intention but whether, in fact, they were.

Were these Public Service Posts?

Public employment is dealt with in Part VIII of the Constitution although some public employments are not covered. By section 138(1), this Part does not apply to consultants and advisers who are employed either on an honorary basis or remunerated only by fees or commission whether or not they are also paid allowances for such things as travel or subsistence. That does not include these salaried appointments

Part VIII does apply to State Services by which is meant a service referred to in section 139:

"139 (1) Subject to this Part, Acts of Parliament shall made provision for and in relation to-

(a) a Public Service; and

(b) the Tuvalu Police.

(2) Subject to this Part, Acts of Parliament may make provision for and in relation to-

(a) a Prison Service; and

(b) other State Services of Tuvalu."

The Act that provides for the Public Service is Cap 97. The long title states it is to

"make provision additional to that in the Constitution for the establishment and regulation of the public service and in relation to the Public Service Commission".

The Act adopts the definitions of public officer and Public Service given in Schedule 1 of the Constitution:

"public officer" means a member of the Public Service;

"Public Service" means the permanent civil administrative Ministries controlled by the Secretary to Government or a Secretary and subject to Executive supervision.

The Public Service Commission is created by the Constitution and, by section 149, it is responsible for all personnel matters connected with the Public Service. Personnel matters include any service decision or action concerning an individual in respect, inter alia, of appointment, transfer and termination of employment (section 137). The Commission is an independent body under the Constitution; it must in personnel matters comply with general directions as to policy given by Cabinet but otherwise is not subject to direction or control by any other person or authority (section 150).

I am satisfied on the evidence produced to the Court that the positions created by these contracts were positions in the Public Service making the appointees public officers. The contracts show they were paid at a level of remuneration based on the Tuvalu Public Service Scale, they were to place their whole time at the disposal of the government to the exclusion of any other business except with the express approval of the government, (not, it should be noted, of Cabinet) and their employment was governed by the General Administrative Orders which, by section 7 (1) of the Public Service Act relate to the administration of the Public Service.

Having reached that conclusion, I pass to the matters set out above as needing determination.

Creation of the Posts

There is no doubt that the law allows Cabinet to create posts in the Public Service.

Section 140 of the Constitution provides that, subject to any Act of Parliament, the Cabinet may create or abolish offices or positions in State Services and determine qualifications for, and prescribe the functions, of offices or positions in State Services.

By the Public Service Act, when the Appropriation Bill is passed by the House, it shall be deemed to have approved the creation or continuation of the posts in the Establishment Register presented in the same session and such posts "shall be deemed to have been created by the Cabinet as offices for Tuvalu under the provisions of section 140(a) of the Constitution, but without prejudice to Cabinet's right to create additional posts or to abolish any post".

Appointment to the Posts

It is not disputed that these appointments were made by Cabinet yet the power to make appointments, save for certain constitutional posts, is vested in the Pubic Service Commission. That body is independent to ensure impartiality and, amongst other things, that appointments or not made, for example, on political grounds and, as has already been stated, the applicant's case is that the facts show that these were clearly political appointments.

It is necessary, therefore, to consider whether Cabinet has power to appoint persons to the Public Service without the involvement of the Commission. I am satisfied that, with the exception of certain constitutional posts, it does not.

Under the terms of the Constitution, Cabinet is collectively responsible to Parliament for the performance of the executive powers of the Government but there is no general power given to it to make appointments to the Public Service. The power given to Cabinet by section 140 to create or abolish offices does not extend to appointment to the offices created.

However, section 4(2) of the Public Service Act provides:

"(2) The appearance of a post in the Establishments Register shall not imply an obligation on the Cabinet or the Commission to fill that post at the salary level shown or at all, and shall be without prejudice to the Cabinet's or Commission's power to appoint additional persons to the public service if funds are available for that purpose in any particular Ministry."

That subsection clearly refers to Cabinet's power to appoint. Whatever is the intention or extent of that phrase is not clear. I have been unable to find any other provision that gives Cabinet such a power or sets out the manner in which, if such a power exists, it is to be exercised. On the other hand, the constitutional provisions for the establishment of the Public Service Commission clearly limit that power to the Commission and I am satisfied that those provisions over- ride any apparent, undefined power in that subsection.

I am satisfied that Cabinet did not have the power to make these appointments and the purported use of such a power was unlawful.

The Effect of Appointment on Members of Parliament

Even if these appointments were lawful, the effect on the position of the Members of Parliament who accepted them is clear.

Section 95 of the Constitution disqualifies from election, subject to such exceptions as are prescribed, any person holding or acting in any office or position in a State Service. Section 14 of the Act gives the Minister power to give directions as to the procedure by which public officers may stand for election. Those Directions require any such public officer to give notice to the Secretary to Government which notice operates as a notice of resignation conditional on the officer's name appearing on the list of candidates. It is also relevant that the General Administrative (Participation in Politics) Orders prohibit any public officer from becoming actively involved in politics.

By section 96 of the Constitution, the seat of a Member of Parliament becomes vacant if he ceases to be qualified for, or becomes disqualified from, election to Parliament under sections 94 or 95.

The effect of this is that the appointment of these Members of Parliament as Special Ministerial Advisers in the Public Service disqualified them from election and should have rendered their seats vacant.

Decision

I make the declarations sought namely that the appointments of Special Ministerial Advisers made by the Governments of Bikenibeu Paeniu, lonatana Ionatana and Faimalaga Luka were unconstitutional and ultra vires.

I am advised that the present Government has not appointed any Special Ministerial Advisers and so I do not consider any further orders are necessary.

Dated this 30th day of September, 2003

THE COURT.