IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 82 of 2000
BETWEEN:
ALOISIO FALEALUPO
Plaintiff
AND:
LUTE BARBOU
First Defendant
AND:
class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
LOUIS B
Second Defendant
Coram: Before Mr Justice Oliver
A. Saksak
ass="MsoNormal" style="marg"margin-top: 1; margin-bottom: 1">
Mrs Anita Vinabit – Clerk
Counsel: Mr Willie Daniel for
Plaintiff
Mr Saling Stephens for
Defendants
JUDGEMENT
This is a Constitutional
Reference from Senior Magistrates Court for the interpretation of Article 5
of the Constitution.
Facts:
Arties are non-citizens. The. They entered lawfully on valid visitors visas.
Those Visas have been expired. The Plaintiff’s
extension expired on 13th
November 2000.
The Plaintiff filed his claim
in the Senior Magistrates Court0th November, 7 r, 7 days later
against the Defendants claiming damages for certain breaches of contract.
Befhe Senior Magistrate
could hear and determine the claim, he referred the matter to thto this Court for
interpretation
of Article 5(1) of the Constitution which reads:-
“The Republic of Vanuatu
recognises, that, subto any restrictions imposedposed by law on
non-citizens, all persons are
entitled to the following fundamental rights
and freedoms of the individual without discrimination on the grounds of
race, place of origin, religious or traditional beliefs, political opinions,
language or sex but subject to respect for the
rights and freedoms of others
and to the legitimate public interest in defence, safety, public order,
welfare and health–
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(a) &nbs; &nbbsp;&&nbp; &nsp; &nbbp;&nnbp;&
span>life;
(b)(b) &nbssp; &nsp; &nbbp;&nnbsp;
span>liberty;erty;
(c) & &nsp; &nbssp;
span "EN-GB" style="font-size: 12.0pt">(d) &&nsp;;&nspp;&nssp;
p;
protection of the law;
(e) & p;&nssp;&nsp; &nsp; ;&nbpp;
/ fpan>freedom from irom inhuman treatment and forced labour;
(f) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>fpeedom of conscienscience of worship;
(g) &nnsp;&&nsp;;&nspp;&nssp;
sp;
freedom of expression;
(h) & p;&nssp;&nsp; &nsp; ;&nbpp;
/ fpan>freedom of assf assembly and association;
(it">(i) &nbbsp;& &nsp; &nsp; &nnbp;& &n fran>freedom edom of movement;
clasoNormal" style="text-indent: -35.45pt; margin-left: 106.35pt; margin-top: 1; marg margin-boin-bottom: 1">
(j) & &nnsp;&&nbp;;&nbp; &nbp; &n p;
protection foon for the privacy of the home and other property and from
unjust deprivation of property;
clasoNormal" style="text-indent: -35.45pt; m-left: 106.35pt; margin-top: top: 1; ma1; margin-rgin-bottobottom: 1">
(k) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;;
equal treatmenatment under the law or administrative action, except that
no law shall be inconsistent with this suagrapofar
makes
provisir theial benefit, welfarelfare, pre, protectotection oion or advr advancement of
females, children and
young persons, members of under-privileged groups or
inhabitants of less developed areas.”
The Issues of concerns are
threefold:-
(1)&n;"> & &nsp; &nbssp;
p>
class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(2) &nbs; &nbbsp;&&nbp; &nsp; &nbbp;&nnbp;&
span>Whether ther or notr not Sect. 11(2) of the Immigration Act [Cap 66] a
restrictionhe Plff asn-cit
class="MsoNormal" style="text-indent: -35.45pt; mar; margin-lgin-left: eft: 70.9p70.9pt; mat; margin-rgin-top: 1; margin-bottom:
1">
(3) &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp;
Wpan>Whether or notr not there is a bar that invalidate the rights on a
non-citizen under the circumstances of this case to
come to Court seeking
redress?
I have heard both Cous
Submissions Oral and Written . Both have agreed that in view of the
Internatirnational Conventions
on Human Rights which Vanuatu have ratified and
which operate as law in Vanuatu, Article 5 applies to the Plaintiff
regardless
of Sect. 11(2) of the Immigration Act.
The State Law Office have not
been made aware about this matter and their views are nown . I hesitate
to a to allow further
adjournments for that purpose taking into account he
urgency of the matter, the time and costs that would be involved.
Considering all Submissions
made before me, I would answer the questions posedthe consideration of
this Court as
follows:-
Question 1 - &nAll chave to to be o be o be considered on their own merits . The merits of this particular case
warrants
the Plaintiff to ceforeCourts of this Country to seek
redress.
Question 2 - &nbbsp; ew of
e
I I International Conventions on Human Rights which applies equally to Vanuatu,
Regardless of Sect. of tmigration Act the Plaintiff is entitled
under Article 5 of the Constitutionution to c to come to the
Courts seeking redress.
ass="MsoNoMsoNormal" style="text-indent: -70.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
Question 3 - he sa
easor given iven iven for Question No.2 above the Plaintiff is not barred by Sect.
11(2) of the Immigration Act to bris acbefor Cour this
Country under his particular circumstances.
>
-   &nbssp; ;&nspp; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp;
In view ef these answers, the Court below should now list the
Plaintiff’s Cfor hg andrmination as quickly as possibd
r thapose
I refer tfer the cahe case base back tock to the the Senior Magistrate’s Court.
>
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&n p;
In my v my view this is a reference in which the public interest is
se For reasore will be no Oas tos.
1">
Dated at Luganville this 8th
day of January, 2001
BY TURT
<
OLIVER A. SAKSAK
Judge
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