Home | Databases | WorldLII | Search | Feedback Court of Appeal of Vanuatu

Attorney-General v Kalpokas [1999] VUCA 4; Civil Appeal Case 08 of 1998 (23 April 1999)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appellate Jurisdiction

Civil Appeal Case No.8 of 1998

BETW>BETWEEN:

HAMILSON BULU,
Attorney General
First Appellant

AND:

JEFFREYFFREY WILFRED,
the Director General of Finance
Second Appellant

AND:

THE GOVERNMENT OF
THE REPUBLIC OF VANUATU
Third Appellant

AND:

HON. DONALD KALPOKAS, MP & OTHERS
Plaintiffs in Civil Case No.122 of 1997
Respondents

ng date: 20th 20th April 1999

Coram: Justice John von DOUSSA
Justice Bruce ROBERTSON
Justice DanieIAKI
Justice Marum REGGETT

Counsel: Mr Ishmael Kalsakau for the Appellppellants
Mr Edward Nalial for the Respondents

JUDGMENT

This appeal concerns the legal position of ‘political appointees’ and their entitlement to remuneration, pay in lieu of notice and other benefits from the Government of Vanuatu.

Proceedings in the Supreme Court were commenced by 87 plaintiffs. Six of the plaintiffs were former Ministers, and the balance of the plaintiffs had held various positions within Ministries as political appointees. On the termination of their appointments they claimed payment of a gratuity, three months salary in lieu of notice, outstanding salary, outstanding annual leave, and in some instance other benefits including airfares to home islands, housing allowance, child allowance, and cost of living allowances. When these claims were denied by the Government, the plaintiffs commenced proceedings claiming damages for breach of the contracts under which they have been appointed, in the statement of claim referred to as "contracts of employment".

The plaintiffs sued five defendants. The first defendant was the Prime Minister, the Hon. Serge Rialuth Vohor. The second defendant was the Hon. Willie Jimmy sued as the Minister of Finance. The third defendant was Mr Jeffrey Wilfred the Director General of Finance. The fourth defendant was Mr Hamilson Bulu, Attorney General sued as representing the other defendants. The fifth defendant was the Government of the Republic of Vanuatu.

When the matter came on to trial before the Acting Chief Justice, the plaintiffs relied wholly on the following agreed statement of facts:

1. On or about 25 October 1996, a new coalition Government led by the then Prime Minister Serge Vohor was set up. This coalition Government included politicians from the Vanuaaku Pati.

2.The plaintiffs were appointed to different positions in the coalition Government as Ministers and also as political appointees. The vast majority of plaintiffs were appointed to their respective positions on either 30 September 1996 or 25 October 1996.

3.Each of the plaintiffs received a letter of appointment from the office of the then Prime Minister, either signed personally by the Prime Minister or on this behalf. The terms of the appointment of each of the plaintiffs are identical.

4.Each of the plaintiffs received a written offer of employment signed by or on behalf of the first defendant, setting out the terms and conditions of the plaintiffs’ contract of employment with the fifth defendant.

5.Each of the plaintiffs contract of employment with the fifth defendant including the following employment benefits:

a) Their salary, leave allowances, and other benefits, would be as provided for by the Official Salaries Act [CAP 168] as amended from time to time.

b) In the event of termination prior to 30 November 1999,

i) 3 months notice of termination would be given; or

ii) 3 months salary in lieu of notice would be paid.

6. Each of the plaintiffs signed a copy of their letter of appointment as evidence of their acceptance of the contractual terms of their appointments.

7. On or about 20 May 1997, each of the plaintiffs received a notice of termination of appointment signed by or on behalf of the first defendant, acting on behalf of the fifth defendant.

8. The notice of termination of appointment given to the plaintiffs by the first defendant advised each of the plaintiffs that they were entitled to the termination benefit provided for in their letter of appointment. The common parts in each notice of termination reads as follows:

"I am writing to advise that I have decided to terminate your appointment as in the Ministry of with effect from Tuesday 20 May 1997.

That this termination entitles you to your benefits as specified in your letter of appointment.

I take this opportunity to thank you on behalf of the Vanuatu Government for your contribution in the services you have provided through the ministry of * to the people of Vanuatu and to wish you every success in your future careers.

Yours sincerely,

Hon. Rialuth Serge Vohor

Prime Minister/Government of Vanuatu"

9. By letter dated 16 July 1997, the second defendant, Hon. Willie Jimmy, the then Hon. Minister of Finance wrote to the third defendant, the Director General of finance instructing the third defendant to pay the plaintiffs their outstanding termination entitlements.

10.By letter dated 18 July 1997, the plaintiffs' solicitors wrote to the third defendant requesting payment of the plaintiffs outstanding termination entitlements.

11.By further letter dated 22 July 1997, the plaintiffs solicitors wrote to the second defendant setting out full details of each of the plaintiffs entitlements, and requesting payment thereof.

12. By two letters dated 29 July, the plaintiffs solicitors wrote to the second defendant again requesting payment of the plaintiffs termination of contract entitlements.’

It is necessary also to refer to the full text of the letter of appointment which was placed in evidence by the defendants at trial. The letter read-

"Department of ………

Dear…………

Post :…………..
Ministry :…………..

I have pleasure in appointing you to the above Political Post with effect from 15th November 1996.

In this post and in the performance of all you duties and such other functions as my be specified from time to time, you will be responsible to the Minister responsible for ……..

The provision of the Official salaries Act (Cap.168), as amended from time to time will apply to you regarding your salary, leave, allowances and other benefits and privileges.

The terms and conditions of the service applicable to the Vanuatu Public Service will apply to you in so far as they are not inconsistent with any specific condition or requirement which is applicable to you as a political appointee.

This is a fixed term of appointment which will expire on 30th November 1999 unless terminated earlier in accordance with the following provisions:

At the end of 3 months notice;

At any time by giving 3 months salary in lieu of notice;

In the event that you are certified by the Government Medical Officer as medically unfit for service by giving one notice in writing of the date upon which the appointment will be terminated;

Forthwith if you have been guilty or misconduct. Upon such dismissal all rights and advantages reserved to you under your terms and conditions for service shall cease.

Provided that if your appointment is terminated under paragraph (b) and you are re-appointed to a Government office, Public Administration or Government Statutory Corporation, you will refund to the Government Salary given in lieu of notice for that part of the 3 months period during which you were in the employment of Government Public Administration or Government Statutory Corporation.

Your appointment will also automatically come to an end if, during the said term:

the present Prime Minister ceases to hold office as Prime Minister;

the Ministry in which you hold office is abolished.

Provided also that, in the event that your appointment comes to an end by reason of the Prime Minister ceasing to hold office or that the Ministry to which you are appointed is abolished, you will be paid three months salary in lieu of notice.

Please signify your acceptance by signing in the space provided below.

Hon. Serge VOHOR
Prime Minister"

At the trial the plaintiffs claimed as damages the monies due to them in accordance with the entitlements set out in the letters of appointment. The defendants denied liability on the ground that the so-called contract of employment were illegal and unenforceable for two reasons. First it was contented that the Prime Minister had no lawful mandate to engage political appointees, and in any event the contracts were void as regards the Office of the Ministers. Secondly it was contended that even if the plaintiffs’ contracts were made on the assumption that legal consequences would follow, the contracts were invalid as they constituted a fetter on the mandate of the Government of the Republic of Vanuatu to dismiss employees, and, further the Prime Minister had no lawful mandate to engage the expenditure of the Public Purse.

The learned Acting Chief Justice held that the letters of appointment constituted employment contracts. He observed that there was apparently no dispute about this as employment contracts were referred to in the agreed statement facts. His Lordship held that the plaintiffs had been validly appointed to posts created in accordance with the law, namely under the provisions in the Constitution and the Public Service Act [CAP 129] (that is, to posts in the Public Service as public servants). His Lordship also held that the posts of each of the plaintiffs had been validly created in accordance with the Official Salaries Act. In answer to the defendants’ submission that the Prime Minister had no authority to engage the Public Purse to pay the plaintiffs, he held that the plaintiffs had been appointed to posts created by the Constitution, the Public Service Act or the Official Salaries Act which provided the authorization by Parliament to pay them. His Lordship applied the decision of the High Court of Australia in New South Wales v. Bardolph (1934) 52 CLR 455 which held that it was no answer in a suit against the Crown upon a contract that the money is necessary to answer the liability had not, up to the time of the suit, been provided by Parliament. It was held that the provisions of funds by Parliament was simply a condition that must be fulfilled before actual payment by the Crown which made, and did not go to the formation, legality or validity of the contracts.

The Acting Chief Justice then considered whether the terms of the contracts were binding on the Government of Vanuatu. His Lordship considered first the position of the Ministers and then the position of the other plaintiffs. In the case of the Ministers he held that the contracts were not binding as Ministers were appointed under Article 42 of the Constitution. Article 42(3) specifically provides that the Prime Minister may remove the Ministers from Office. His Lordship held that the contracts of employment were ultra vires on the ground that by their terms the Prime Minister sought to impose an illegitimate fetter on the Constitutional discretion to remove Ministers expressed in Article 42(3). For the same reasons, His Lordship held that the Ministers could not claim benefits as permanent political appointees under the Official Salaries Act. However, in so far as the Official Salaries Act provided specifically for benefits payable to Ministers on the termination of their appointments, the six Ministers were held entitled to a pro-rata payment of gratuity under Class E in Part 2 of the Schedule to the Act, and to 4 days outstanding salary. His Lordship held that the evidence did not prove any other entitlement by any of the Ministers.

In the case of the plaintiffs, other than the Ministers, the Acting Chief Justice held that the Official Salaries Act created the posts to which the plaintiffs were appointed, and provided both the lawful authority for the appointment of the plaintiffs, and for the payment of entitlements specified in the letters governing their appointment. His Lordship also held that the appointments were authorized by Article 57(4) of the Constitution which provides that:-

"the Prime Minister…… may, exceptionally, make provision for the recruitment of staff for a specific period to meet unforeseen needs".

His Lordship appears to have held that the appointments were made by the Prime Minister to meet "unforeseen needs", although the evidence fails to disclose why the need for the plaintiffs’ appointments were "unforeseen". His Lordship treated the plaintiffs as appointees to the "Public Service", an expression defined in section 1(1) of the Public Service Act as follows:-

"Public Service" means the service of the Republic in any capacity other than as a judge, or member of the armed forces, police or teaching services.

The Acting Chief Justice concluded that in the case of the plaintiffs other that the Ministers they each had a valid contract of employment with the Government of Vanuatu and that the Prime Minister acted under the terms of those contracts to terminate them. His Lordship held that the Official Salaries Act applied to the contracts, and that each of the plaintiffs, other than the Ministers, were entitled to the benefits provided in those contracts. Although the plaintiffs’ claims were expressed as claims for damages, in reality the claims were for money due in accordance with the terms of the letters of appointment. His Lordship adjourned the proceedings to enable the parties to calculate the amounts due to each of the plaintiffs.

At a subsequent hearing, the Acting Chief Justice held that the effective date of termination was 20th May 1997, the date of the letters of termination to each of the plaintiffs. The parties then agreed calculations of entitlements at that date, and judgment was entered accordingly in favour of each of the plaintiffs.

Against that judgment the Attorney General, the Director General of Finance and the Government now appeal. There is no appeal by the Hon. Willie Jimmy or the Hon. Serge Rialuth Vohor.

There is also no cross-appeal by the six former Ministers who were plaintiffs. The only live issue which remains concerning them arises from one ground of appeal that challenges the finding at trial that they were entitled to a pro-rata payment of a gratuity for the 7-8 months that they held office. That point can he disposed of at the outset. The Prime Minister clearly had power to appoint Ministers under Art.42 of the Constitution. Their appointment, as the Acting Chief Justice recognized, is not a contractual one. On appointment their entitlements arise not by contract but by statute under the Official Salaries Act. Under Class E in Part 2 of the Schedule they were entitled to-

"A gratuity payable at the rate of one twelfth of the annual salary for each year during which a person holds the office and pro-rata for each uncompleted year."

The appellants contend that under this provision a former appointee is only entitled to a payment if the appointee has held office for more than one year. The appellants contend this result follows as it is a principle of employment law under the Employment Act [CAP 160] that employees must be in continuous service for at least 12 months before qualifying for a payment in the nature of a severance allowance: see s.54.

In our opinion the former Ministers were not employees but holders of a statutory office and the Employment Act did not apply to them. We do not think ordinary principles of employment law are relevant to the interpretation of the Schedule to the Official Salaries Act. We consider that the entitlements of the former Ministers to a gratuity payment turns entirely on the interpretation of the words of Class E. In our opinion the meaning of Class E is that a pro-rata entitlement arises for service of any length, and the Acting Chief Justice was correct in holding that the former Ministers were entitled to a gratuity payment. The ground of appeal which challenges that finding is dismissed.

The balance of the appeal concerns the plaintiffs other than the former Ministers in the original action. We shall refer to those plaintiffs in this judgment as the respondents. Their position is different to that of the former Ministers.

In relation to the respondents, before this Court the appellants have repeated the arguments that were unsuccessful at trial. They contend that the reasons of the Acting Chief Justice fail to identify any law which authorities or empowers the Prime Minister to appoint the respondents to the offices recognized by the Official Salaries Act. They contend that the respondents as political appointees, if validly appointed, would be public servants, and that the Public Service Commission only has power to appoint public servants. The appellants contend that Art. 57(4) has no application as the respondents were not appointed to meet "unforeseen needs". As the Prime Minister had no power to make the appointments on behalf of the Government the letters of appointments do not constitute contracts bindings on the Government.

As the appellants’ argument developed, it was conceded by counsel of their behalf, Mr Kalsakau, that it would follow, if this argument were correct, that the respondents have no contractual entitlement at all to payment by the Government, and that any amounts actually paid or offered to them for services rendered as political appointees were act of grace payments by the Government, made without legal obligation to do so. Although the agreed statement of facts tendered at trial refers to ‘contracts of employment’ it is said that this expression merely describes the apparent purport of the letters of appointment, and is not a concession by the appellants that the letters had any bind effect in law on the appellants.

It is convenient to deal first with the question whether the respondents or any of them were appointed as public servants. Chapter 9 of the Constitution makes provisions for the Public Service. Articles 57 and 58 of the Constitution provide:-

"57.(1) Public servant owe their allegiance to the Constitution and to the people of Vanuatu.

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

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

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.

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

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

Public servants shall leave the public service upon reaching retirement age or upon being dismissed by the Public Service Commission.

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. (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."

Article 59 establishes the Public Service Commission, and Art. 60 provides that the Public Service Commission "shall be responsible for the appointment and promotion of public servants".

We have already observed that there is no evidence in the material before the Court that the respondents were appointed to meet "unforeseen needs". The posts to which the respondents were appointed were recognized ones for which provision is made in Schedule 1 to the Official Salaries Act. The apparent need to appoint holders of those positions had been foreseen and provided for. We agree with the submission of the appellants that Art.57(4) of the Constitution has no application, even if the posts to which the respondents were ‘appointed’ were posts in the Public Service.

The next issue is whether the holders of the offices recognized under the Official Salaries Act are in the Public Service. There is nothing in the provisions of the Official Salaries Act which directly answers this question. The provisions of the Official Salaries Act are short. There are only three sections, followed by a lengthy schedule that lists all the offices to which the Act applies. The Act provides:

"OFFICIAL SALARIES

To provide for salaries and other benefits payable to holders of certain offices.

SALARIES

There shall be paid to the holders of the offices set out in column 1 of Part 1 of the Schedule the annual or daily salary set out against those offices in column 2 of the Schedule.

OTHER BENEFITS

2. (1) Subject to subsection (2) the holders of the offices set out in column 1 f Part 1 of the Schedule shall also be entitled to the benefits and allowance set out against those offices in column 3 of part 1 of the Schedule and described in detail in Part 2 of the Schedule.

Notwithstanding the provisions of subsection (1) where the holder of any of the offices set out in column 1 of Part 1 of the Schedule is serving under an agreement and there is provision in such agreement for similar benefits and allowances as those set out in column 3 of Part 1 of the Schedule, such person shall not be entitled to those benefits and allowances if provision therefor is made in such agreement.

AMENDMENT OF SCHEDULE

3. (1) The Prime Minister may after consultation with the President of the Republic add to, vary or replace the Schedule to this Act but not to the detriment of the holder of any office set out in the Schedule.

An Order under subsection (1) shall be laid before Parliament without delay."

The Schedule commences by listing the following important offices of State:-

"President
Prime Minister
Speaker
Chief Justice
Minister
Attorney General
Puisne Judge (Resident)"……

The list continues, identifying offices of lessening importance in the administration of matters of State, including ultimately Ministers typists, Ministers’ drivers, official cleaners and gardeners in Ministries, and Ministers’ resident gardeners.

The notion of a public servant emanates from that of ‘civil servants’ in the Westminster system of government, and this historical connection explains the exception of member of the armed forces in the definitions in the Public Service Act of ‘Public Service’. Members of the armed forces were not considered to be in the "civil" service. The following passage from Hood Phillips "The Constitutional Law of Great Britain and the Commonwealth", 1952 Edit, at pp. 245-246 is helpful:

"All civil servants are Crown servants, but not all Crown servants are civil servants, for the term is not applied to Ministers, their Parliamentary Secretaries and Parliamentary Private Secretaries, or other holders of political offices, nor to member of the armed forces. The expression "established civil servant" is significant for certain particular purposes such as superannuation (Superannuation Acts, 1834-1919(l); but otherwise "civil servant" is merely a non-legal expression covering Crown servants employed in the central government Departments. Local Government officers and the employees of Public Corporations, such as the British Broadcasting Corporation, the British Transport Commission and its Executives, the British Electricity Authority and its Area Boards, and the British Overseas Airways Corporation, are thus not civil servants, though the nature of their work and their conditions of employment bear many similarities. The following definition of the civil service has been suggested for general purposes: "the body of officials in the service of the Crown, who discharge duties belonging to the exercise of the King’s executive powers, but not being the holders of political offices".

It remains the positions that not every person who serves the Republic of Vanuatu in whatever position thereby comes within the definition of "Public Service". Ministers, Parliamentary Secretaries, the Attorney General, the Auditor General and the Ombudsman provide examples. Critical to the notion of a public servant in the Constitution, and in the definition of "Public Service", is that the public servant works under a contract of service, with the Government as the employer. The office holders just mentioned do not work under contracts of service. They hold constitutional or statutory office, and their entitlements and obligations are created by statute, not by contract.

A predominant feature of the Public Service established by Chapter 9 of the Constitution is that public servants working under contracts of service have security of tenure: see Articles 57(5) – 57(8). The only exception recognized by the Constitution is contained in Art. 58(1) which applies to "political advisers".

The meaning and scope to be attached to the expression "political advisers" may be open to argument in particular cases, but plainly it does not extend to many of the present respondents. Drivers, cleaners and gardeners could not come within the expression, yet it is clear that none of the positions to which the respondents were appointed were intended to attract tenure. On the contrary the distinguishing feature of "political appointees" is that they hold office only for so long as the government to whom they render assistance.

It is to be noted that the letters of appointment do not purport to appoint the respondents as public servant. On the contrary, the letters specified that the provisions of the Official Salaries Act regulate the appointees’ entitlement to salary, leave, allowances and other benefits and privileges. If the letters intended to appoint the respondents to the public service, this statement would be unnecessary, as would the following statement in a letter which says that terms and conditions applicable to the Vanuatu Public Service will apply in so far as there are not inconsistent with other conditions or requirements applicable to a political appointee.

In our opinion, assuming that the letters of appointment constituted contracts, the respondent did not become public servants. The fact that they were not appointed by the Public Service Commission does not therefore mean that they were not validly appointed.

The terms and the conditions under which the respondents provided assistance to Ministries were not governed by the Public Service Act, nor by Regulations made thereunder by the Prime Minister pursuant to the section 18.

In the case of many of the important office holders whose offices are recognized in the Official Salaries Act, the terms and conditions of their appointments are contained in the statutory provisions under which they are appointed, supplemented by the provisions of the Official Salaries Act. However, the Official Salaries Act recognizes that holders of some offices in the Schedule may hold appointment under a contract which may contain terms and conditions which supplement those contained in the Schedule: see s.2(2). In the case of holders of the lesser offices, i.e. a ministerial typist, cleaners, and gardeners, there is no separate statute which set out terms and conditions specific to the office that they hold. Their appointment can only be by contract, with another party who becomes the employer. In the present case the relevant contracts, assuming that there were contracts, were constituted by the letters of the appointment. Their performance of the functions anticipated by the letters required the appointees to work as employees, and we do not think it can be doubted that the contracts would constitute contracts of employment which fall within the scope of the Employment Act [CAP 160]. Relevantly, the Employment Act, s.6, provides that nothing in the Act shall affect the operation of any agreement which ensures more favourable conditions to employees than those provided for in the Act. At trial the respondents relied on s.6 as the terms and conditions set out in the letters of appointment and the Official Salaries Act were more favourable than similar entitlements under the Employment Act.

The letters of appointment do not expressly say that the offer of appointment is by the Government, or that the other party to the contract of appointment will be the Government. The appellants argued that the parties to each of the contracts are the Prime Minister and the appointee. We reject that argument. It could not have been intended that the Prime Minister would be personally responsible for the salary and other benefits envisaged by the contracts. We considered the import of the letters is that the Prime Minister was acting on behalf of the Government to appoint the respondents to positions within the Government. The very notion of political appointees is that the offices to which appointments are made are offices within the particular Government of the day, and that the holders of those offices will have particular allegiances to that Government and not to an opposing political party.

This brings us to the critical issue raised by the appellants: where is the source of authority which permits the Prime Minister on behalf of the Government to appoint the respondents to the offices recognized in the Schedule to the Official Salaries Act?

The appellants contended that the Official Salaries Act provides the machinery provisions which enable payment of salaries and other benefits to holders of the offices stated in the Schedule, but provides no express authority for anyone to make the initial appointment to those posts. By its terms the Official Salaries Act does not purport to grant such an authority to anyone. It is therefore necessary, as the appellants contend, to identify the source of authority of the appointment elsewhere. The appellants contend that no such authority can be identified, therefore the appointments which the Prime Minister purported to make must be invalid.

We are unable to accept that argument. The Official Salaries Act, by recognizing the particular offices stated in the Schedule also recognizes that people lawfully may be appointed to those posts. The Act recognizes that elsewhere legal authority does exist for the appointments. In a case of the important office holders at the head of the list, a source of authority is readily identified. For example the appointment of Prime Minister is provided for by Art. 41 of the Constitution. The appointment of other Ministers is provided for in Art.42. The appointment of Speaker and Deputy Speaker is provided for in Art.22. The appointment of Judges is provided for in Articles 47 and 49. These are appointments to specific statutory offices. The respondents however do not hold offices of that kind, but are merely "political appointees". As such, their functions are to assist in the day to day operations of particular ministries. The executive power of Government is, by Art. 39 of the Constitution, vested in the Prime Minister and Council of Ministers. In our opinion, the appointment of the respondents as political appointees was an exercise of executive power.

Art. 39(1) requires that the executive power "shall be exercised as provided by the Constitution or a law".

The Official Salaries Act recognizes that there will be appointments to the offices described in the Schedule. No other source of authority, apart from Art.39, exist for making those appointments which are, as we have observed, are to assist the two performances of the administrative functions of Government. Absent any other authority, we consider an exercise of the executive power under Art.39 is as provided by a law, namely the Official Salaries Act.

To take any different view, would be to obstruct the ministries in the performance of their executive functions, and be contrary to the obvious intention of the Official Salaries Act.

In our opinion were lawfully appointed to the offices held by them, and accordingly their terms and conditions of appointment were those set out in the letters of appointment which constitute the relevant contracts between the Government and the respondents. Those terms and conditions are more favourable to the respondents than similar conditions which would otherwise apply under the Employment Act.

In our opinion the respondents the argument that the contracts of appointment are invalid or unenforceable because they fetter an executive power to hire and fire staff at will is without substance. Even if there is such a power in the Republic of Vanuatu (a question on which we express no view) the contracts in this case do not constitute such a fetter. The contracts permitted the engagement of the respondents to be terminated at any time. The Government on behalf of the Republic undoubtedly has power to enter into contracts, including employment contracts.

The contracts with the respondents committed the Government, in the event of immediate termination, to pay 3 months salary in lieu of notice. That commitment can be enforced without in any way fettering the power to terminate. That power can be exercised by the Government at any time, and if and when it is exercised, the appointee immediately leaves the post.

In our opinion the judgment of the Acting Chief Justice in favour of the Respondents was correct, although we have differed in some respect from the reasoning which led to that result.

In our opinion the appeal should be dismissed, and that the appellant should pay the costs of the respondents and the six former Ministers who were plaintiffs in the original proceedings.

DATED AT PORT-VILA, this 23rd F APRIL 1999rong>

John von DOUSSA J.
Bruce ROBERTSON J.
Daniel FATIAKI J.
Marum REGGETT J. MBE

---

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUCA/1999/4.html