[1980-1994] Van LR 669
IN THE MAGISTRATES COURT
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
Criminal Case No. 100 of 1993
 
PUBLIC PROSECUTOR
v
FATANI SOPE
Coram: Kent J
Mr S Hakwa for the defendant
Mr J Ala for Public Prosecutor's office
 
JUDGMENT
[CRIMINAL LAW - TRADE AND LABOUR - elements of offence breaching order prohibiting strike (etc.) considered]
Fatani Sope is charged under S.34(4) of the Trade Disputes Act CAP 162 with one count of failing to comply with Order 39 of 1993 made by the Hon. Prime Minister on the 6th of December 1993.
The charge alleges that the Defendant on the 7th of December 1993 called a "strike demonstration" outside the Government Building and Post Office. In order to prove that charge, the prosecution must prove the following things:
1. That an order was made by the appropriate Minister, pursuant to S.34(1) of the Trade Disputes Act.
2. That the Defendant was a person or a person who belonged to a class of persons to whom the Order applies.
3. That the Defendant failed to comply with the terms of the Order by
a) calling
b) organising a strike, or irregular industrial action.
4. It must be proved that there was a strike or irregular industrial action short of a strike.
The particulars alleged in the charge are that the Defendant did organise a "strike demonstration" outside the Government Building and Post Office at approximately 2:30 pm on Tuesday 7th December 1993.
In some cases it may not be necessary to prove the precise particulars alleged, but in this case, the Prosecution must at least prove, that the Defendant organised a "strike demonstration", at either or both of the Government Building or Post Office on the day alleged. This is because there is some evidence that there has been continuous industrial action from 24th November 1993 until, on the evidence, very close to the present time. It is therefore necessary to particularise precisely the activity that is alleged against the Defendant so that a Defendant, in the position of this Defendant here, is able to know exactly the charge that they face. The charge has accordingly been, in my opinion, properly drawn and fairly drawn, so that the Defendant was able to properly and adequately defend himself in this case and not be misled, or have difficulties imposed upon him, by simply a general allegation being made. Had a general allegation been made only against him, I would have, if requested, directed that particulars be provided. That was not The Trade Disputes Act does not provide a penalty for an offence under S.34(4) and accordingly the penalty is provided for by S.36(3) of the Interpretation Act. The penalty provided by that section is for a maximum fine of 5,000 vatu or a maximum term of imprisonment for 1 year, or both (fine or imprisonment). Accordingly it can be seen that if a failure to comply with the valid Order, be properly proven, it carries with it, the prospect of severe punishment.
Before me, Mr Hakwa for the Defendant, took a preliminary objection to the charge, in which he challenged whether the charge was properly laid by a Prosecutor as provided by Article 55 in the Constitution and S.28 and 31 of Criminal Procedure Code CAP 136. I reserved that question noting the argument without prejudice to the Defendant's rights.
In view of the decision to which I have come, it is unnecessary for me to decide this question. Following the matter being first raised yesterday Mr Ala then provided further evidence today of the appointment of the Prosecutors with whom he appears. As I have said in view of the decision to which I have come, it is unnecessary for me to determine this question.
There are as I have indicated a number of matters which must be established in order for the Prosecution to succeed. Going to the first of those matters it must prove that an order was made by the appropriate Minister. I am satisfied that such an order was made and that that is Order 39 of 1993. The evidence establishing the making of that Order was given by the tendering of the appropriate Government Gazette together with the Order itself. It is also necessary, of course, to establish that the Order was made by the appropriate Minister. I am satisfied upon the evidence of Father Gerard Leymang, First Secretary to the Prime Minister, that the Prime Minister is the appropriate Minister as the Minister responsible for the Public Service, to make orders under Section 34(1).
In addition to the evidence of Father Gerard Leymang and in addition to the proof of the Order, there were some 5 further witnesses called by Mr Ala, the Acting Attorney General who was appearing with Mr Aru and Mr Toa.
I turn to the second question to be decided. Was the Defendant a person to whom the Order applied? The Order applies to all Public Servants who are members Vanuatu Public Service Association who are currently participating in an irregular industrial action or industrial action. There are therefore two aspects of this element of the offence which must be established for the Prosecution to succeed. Proof of these matters perhaps in the absence of a confession or admission by the Defendant, may often be difficult as it was indeed shown to be here. In the end I am satisfied upon the evidence of Maria Crowby that the Defendant was a member of the Vanuatu Public Servants Association. She gave evidence which I am satisfied establishes that she was present when the Defendant was introduced to the Prime Minister as a member of the Vanuatu Public Servants Association. Although this was some time ago, I am prepared to find that the Defendant is a person to whom the Order applies. I say that although I have not given Mr Hakwa the opportunity to fully argue that matter and my ruling in this matter of course would not be binding on any future court.
And I turn to the third matter, or element of the offence, which the Prosecution needs to prove beyond reasonable doubt, if the Prosecution can succeed and that is, did the Defendant fail to comply with the Order of the Honourable Prime Minister? A number of Police Officers were called, who gave evidence that there were gatherings of people outside the Government Building and the Post Office, on the 7th December 1993. Papers were held by people amongst those gatherings, which leads me to draw the inference that they were demonstrating or picketing and that there were messages contained upon the papers or posters that they held. There is little or no evidence before me, as to what the writings were on those papers. That matter is not important for the purposes of this decision. As to the people who were present and their identity, one or two people have been identified by name as having been present and Constable Jack Vira swore, that he knew some of the people of a group of about 15, who were at the Government Building on the 7th December. He knew that one of them works with the Lands Department and one with Public Works. I accept his evidence in that these were people, he personally knew. That evidence and in combination with other police evidence, establishes, in my opinion, that the people who were gathered, at least at the Government Building were people to whom the Order of the Honourable Prime Minister applied and that they were involved in industrial action of a type, to which to Order applied. When it comes to determine the question however, of whether or not this Defendant Mr Sope failed to comply with the Order, no witness was able to give any evidence as to even his presence at either the Government Building, or the Post Office on the 7th December 1993. His present is not necessary to be established for the Prosecution to succeed, however there not being evidence of his presence, created a significant difficulty for the Prosecution in this case. It must be shown by the Prosecution, in accordance with the terms of the charge that it brought, that Mr Sope called or organised the demonstrations, to which I have referred. It is not necessary in my opinion, that there should be evidence that he called or organised both of them. I am satisfied that proof of calling or organising either one, would have been sufficient. There is however, no evidence whatsoever that he did so, in respect of either of those demonstrations. Mr Ala, faced with the difficulty that I acknowledge, and he acknowledges he has, sought to argue that Mr Sope could be convicted upon the basis of an assumption, that as a member of the executive of the Vanuatu Public Servants Association, he could be assumed to have called or organised the action. I cannot accept this submission. Members of an Association may agree to demonstrate, without reference to their governing body. Accordingly, even if I were to find that the evidence satisfactorily established that Mr Sope was in fact the Vice President of the Vanuatu Public Servants Association, that of itself, would not be sufficient upon which to found a conviction for an offence under this Section. To convict, it must be shown that Mr Sope in fact called, or organised either alone, or by agreement with others, (be they members of the executive or not), the industrial action about which evidence has been given. There is no evidence to show that Mr Sope was a party to any agreement or to any direction to any other person whatsoever, to participate in the demonstrations of which evidence has been given. It must be clearly understood that the law does not allow for assumptions to be made. If one were to ask the people of Port Vila whether there is currently going on, industrial action, people may well say, "yes there is". The law however does not allow of opinion or hearsay in relation to such matters. The law must operate upon evidence properly able to be called and the Prosecution has been unable to do so. The finding that there is no evidence that Mr Sope called, or organised the action is enough to dispose of this matter.
I do wish however, to add a few brief comments. And again these comments are not binding as a ruling of law, but I express my view about some matters. I am of the opinion that there is currently in existence a valid Order under Section 34(1) of the Trade Disputes Act. That is the Order 39 of 1993, made by the Honourable The Prime Minister. Whilst that Order is in force, a person to whom the Order applies, who calls or organises industrial action, is committing an offence which is punishable by imprisonment.
The law does not outlaw strikes, as has been pointed out in the course of argument by Mr Hakwa in this case, and that of course has not been called into question by Mr Ala, for the Prosecution. But the law does empower the Honourable The Prime Minister to make an Order such as he has done, in appropriate circumstances. He has done so and unless and until that Order expires, or is set aside, or revoked in some way, it applies to the members of the Vanuatu Public Servants Association as specified in that Order.
No doubt, all persons acting in this matter, as well as the Government, are endeavouring to act in what in their view, is the best interest of the Nation. This being so, it is important that in the interest of the Nation, this unfortunate matter will be quickly resolved.
I am pleased that the evidence establishes that those spoken to by the Police, acted peacefully and moved on when asked to do so. Such an attitude must mean that difficulties and disagreements can be resolved, without risking either the economy or the reputation of this Country.
My order is that the charge is dismissed, and the Defendant is discharged. I thank counsel for their assistance, and the members of the public for their conduct in the crowded conditions in this court-room. It is important that people have an interest in the hearing of such matters as this, so as they are able to understand the reasons for cases being decided as they are.
 
Dated this 17th day of December 1993.
R.K. KENT J.
JUDGE