IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 196 of 2004

BETWEEN:

JOSEPH AARON
Claimant

AND:

ATTORNEY GENERAL
First Defendant

AND:

MADELEINE TOM
Second Defendant

AND:

HON. VANUAROROA HAM LINI
Third Defendant

Coram: Justice Treston

Mr. Blake for Claimant
Mr. Gilu for the First and Third Defendants
Mr. Kalsakau for Second Defendant

Date of Hearing: 25 November 2004
Date of Decision: 17 December 2004

RESERVED JUDGMENT

CLAIM

In a further amended claim for Judicial Review, the Claimant seeks a declaration that the ministerial orders dated 25 October 2004 made by the Third Defendant as Minister for Municipalities concerning the extension of the term of the mayor for the Port Vila Municipal Council from 1 year to 2 years and making the order retrospective is void and of no effect.

At the hearing the Claimant in fact accepted that the Third Defendant had the power to increase the term of the office of the mayor and the deputy mayor but sought a declaration that the commencement of the order which was stated as coming into effect prior to the end of the period of the incumbent mayor's and the deputy mayor's current term was ultra vires and that the Court should make a declaration accordingly.

The grounds supporting the application were that the ministerial order dated 25 October 2004 made by the Third Defendant was ultra vires and in excess of jurisdiction in that the Honourable Minister took into account irrelevant considerations which led him to act unreasonably and rendered the decision unlawful and accordingly void and of no effect.

In an amended defence the Second Defendant denied that the Claimant was entitled to any mandatory order against her and the First and Third Defendants contended that the Third Defendant did have the power to make such orders from time to time and that the exercise of the power was made in good faith and the Minister had the power to issue the orders of 18 and 25 October 2004. It was contended that the Third Defendant had acted within the law in extending the term of the mayor and in making it retrospective.

FACTS

On 18 October 2003, the council of the Port Vila Municipality elected Patrick Crowby as the lord mayor of the Municipality for a term of 1 year expiring on 17/18 October 2004.

On 27 September 2004 the Third Defendant received a notice from the town clerk of the Port Vila Municipality requesting his approval for the date of the election of the lord mayor and the deputy lord mayor.

On 28 September 2004 the Minister wrote a letter to the town clerk approving the date of elections as 18 October 2004.

However, on 18 October 2004 the Minister issued an order changing the date of the election of the mayor and the deputy mayor to 1 November 2004. That order was order number 32 of 2004.

The Claimant was a duly elected councillor of the Municipality, and originally sought a declaration that the Third Defendant's actions in postponing the date of elections was of no effect and sought a mandatory order requiring the town clerk of the Municipality to immediately reconvene the meeting of the full council to proceed with the election of the lord mayor. An order was sought to quash the Third Defendant's decision. 

The initial claim for judicial review was filed on 19 October 2004 and a first conference was held on 20 October 2004. Counsel for the Defendants was unable to get clear instructions because of the fact that the parliament was sitting and an order was made that all Defendants, including the Third Defendant must file and serve defences and detailed grounds and sworn statements by 3pm on 25 October 2004. It was on the day that these documents were to be filed, namely 25 October 2004, that the Third Defendant issued the order which extended the term of the mayor. It was that order that was made retrospective extending the mayor's term for 1 year and effectively preventing an election. 

The order provided as follows: -

"REPUBLIC OF VANUATU

MUNICIPALITIES ACT [CAP. 126]

Port Vila Municipal Council
(Election of Mayor and Deputy mayor (s))
Order no. 38 of 2004

In the exercise of the powers conferred upon me by section 4 (d)(e) and (f) of the Municipalities Act [Cap. 126] I the Honourable Vanuaroroa Ham Lini MP Deputy Prime Minister and Minister responsible for Municipalities make the following orders.

1.	Term of Office of Mayor and Deputy Mayor(s).

Regulation 27(1) of the Municipal Council Elections Regulations (order no 60 of 1982) is amended by deleting the figure and word "1 year" therein and substituting the figure and word "2 years" in place thereof.

2.	Commencement.

This Order shall be deemed to have come into effect prior to the end of the period of the incumbent Mayor and Deputy Mayor(s).

3.	Repeal

All other Orders issued by me previously in relation to the election of Mayor and Deputy mayor (s) are hereby repealed.

Made this 25th day of October 2004

(signed & sealed)

--------------
Honourable Vanuaroroa Ham Lini MP
Deputy Prime Minister
And
Minister responsible for Municipalities "

EVIDENCE

The Claimant contended in his sworn statement of 19 October 2004 that the steps taken by the Third Defendant were politically motivated as Mr. Crowby no longer had sufficient support within the council to guarantee his re-election as mayor and that Mr. Crowby was a member of the same political party as the Third Defendant.

The Second Defendant deposed in her sworn statement of 20 October 2004 that she was simply carrying out her administrative tasks and had no control over the calling of meetings for the elections and she simply informed the counsellors of what the situation was.

The Third Defendant filed no sworn statement of his own but his first political adviser, Mr. George Bongiri, filed a sworn statement of 23 November 2004. At the hearing, counsel for the Claimant objected to paragraphs 8 to 12 inclusive of the sworn statement and the counsel for the First and Third Defendants conceded that those paragraphs should not be read by the Court as they were inadmissible. Mr. Bongiri confirmed the essential facts, and produced copies of orders no. 32 of 2004 and no. 38 of 2004.

Mr. Aaron and Mr. Bongiri were available for cross examination.

SUBMISSIONS

Counsel for the Claimant submitted that two issues needed resolution. The first was whether the Minister could unilaterally by order change the date of the mayoral elections once they had been fixed and second, whether the Minister could by order extend the mayor's term after it had expired.

The Court indicated to counsel that the decision in relation to the first issue was in fact academic and that it was the second issue which needed to be determined.

Counsel for the Claimant submitted that the making of ministerial orders pursuant to powers delegated under primary legislation was delegated or subordinate legislation which is subject to be reviewed by the Courts applying the principles of ultra vires. It was submitted that the Court must consider the true intent of the empowering Act in the usual way and must decide if the Act does expressly empower the Minister to make certain orders. It was submitted that the manner in which the discretion to make such orders is exercised may be reviewed. It was submitted that the discretion must be exercised reasonably.

In relation to the issue of whether the extension of the mayor's term could be made retrospective, it was submitted that the Municipalities Act [CAP. 126] ("the Act") provided that Municipalities were to be run by the councillors elected by the people living within the Municipality. While the Minister had a supervisory role he had exceeded that role in effectively appointing Mr. Crowby as mayor for the 2004 and 2005 year. It was submitted that the Minister had effectively usurped the role of the councillors to elect the mayor and his actions were thus unreasonable and ultra vires. 

In addition, it was submitted that there was no admissible evidence as to the Minister's motivation despite the sworn statement of his first political adviser.

The Claimant further submitted that the only reasonable interpretation of the admissible evidence in the circumstances was that the Third Defendant was supporting a political colleague.

The Second Defendant through her counsel submitted that any orders must be consistent with the objects of the empowering Act that there was no order that the Court could make against the Second Defendant. The Claimant conceded that no impropriety was alleged against the Second Defendant.

On behalf of the Third Defendant, counsel argued that, as the Minister had the power to issue the order, it could not be overturned. There was no evidence that the Third Defendant had any intention to exercise the power vested in him for any improper purpose. It was submitted that the Third Defendant had not effectively elected the mayor for the next 12 months.

LAW

It is common ground that the Third Defendant, Hon. Vanuaroroa Ham Lini, was at the relevant time the Minister responsible for the Municipalities.

In relation to the composition of councils section 4 of the the Act provides as follows:-

"COMPOSITION OF COUNCILS

The Minister may from time to time by Order -

(a)	prescribe the composition of a council and the number of councillors;

(b)	divide a municipality into territorial wards and vary the boundaries of any such wards;

(c)	prescribe the number of councillors to be elected in respect of each ward;

(d)	provide for the election of a mayor who shall be chairman of the council;

(e)	provide for the election of a deputy mayor or mayors from among the councillors;

(f)	prescribe the terms and conditions of office of councillors including the mayor and the deputy mayor;

(g)	provide for any other matter not hereinbefore specified which may be necessary for the proper establishment of a council."

It is clear from that provision that the Third Defendant had the right from time to time by order to prescribe the terms and conditions of office of councillors including the mayor and the deputy mayor.

By virtue of the Municipal Council Election Regulations order no 60 of 1982 it is provided that "subject to regulation 25, all mayors and deputy mayors shall hold office until the end of 1 year from the date of their election or until the dissolution of the council whichever occurs earlier".

Section 14 (1) of the Interpretation Act [CAP. 132] provides in relation to the commencement of statutory orders as follows: - 

"COMMENCEMENT OF STATUTORY ORDERS …

14 (2)	A statutory order may be made to operate retrospectively to any date that is not earlier than the commencement of the Act under which the order is made except that no person shall be made or shall become liable to any penalty in respect of any act committed or the failure to do anything before the date on which such order was published in the Gazette."

It is clear from this provision that the Third Defendant is entitled to issue a statutory order which is retrospective.

The making of the ministerial orders is pursuant to power delegated under the empowering Act and, as counsel for the Claimant submitted, it is delegated or subordinate legislation. This delegated legislation is subject to review by the Courts applying the principle of ultra vires (see Administrative Law by HWR Wade 6th Edition).

The learned author of that text referred to the discretion given to a Minister in such circumstances as follows: - 

"But arbitrary power and unfettered discretion are what the courts refuse to countenance. They have woven a network of restrictive principles which require statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act."

In Associated Provincial Picture House Limited v Wednesbury Corporation (1948) 1 KP 223 at 229, Lord Greene MR said as follows: -

"It is true that discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often used the word "unreasonable" in a rather comprehensive sense. It had frequently been used and is frequently used as a general description of the things that must not be done. For instance the person entrusted with the discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. If he does not obey those rules, he may be truly said, and often is said, to be acting "unreasonably". Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short-v-Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might also be described as being done in bad faith; and, in fact all these things run into one another."

Also in the above case it was stated: -

"Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion… it is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself".

FINDINGS

In my view it is clear that the Third Defendant has acted unreasonably in ordering that the new term for the mayor of 2 years, as opposed to 1 year, should be backdated to operate retrospectively to a point in effect prior to the end of the term of the incumbent mayor and deputy mayor. I agree with the submission made for the Claimant that that effectively increases the incumbent mayor's term from 1 to 2 years without an election taking place.

When the mayor was originally elected in 1993, it was on the understanding that his term would be for 1 year. The retrospective effect of the Third Defendant's order, as has been submitted, effectively has prevented the councillors from deciding who shall be the mayor. The philosophy of the Act clearly provides that the Municipality is to be run by the councillors elected by the people living within the Municipality. The retrospective effect of the order has emasculated the right of the Municipality to determine its own future for the addition year.

Delegated legislation which changes the law is usually done prospectively. This enables those effected by it to adjust to it in advance and to arrange their affairs in relation to the new legal regime. (See Dyson Heydon: Judicial Activism and the Death of the Rules of Law) Even though there is a power to make retrospective orders, the law generally regards them as ultra vires if issued unreasonably.

In my view the retrospective nature of the order places the citizens of Port Vila at the mercy of an individual mind uncontrolled by due process of law and the decision to make the order retrospective is clearly arbitrary and capricious. It could almost be said to be autocratic decision making particularly when the only admissible evidence in this case is that the Third Defendant and incumbent mayor were members of the same political party.

In addition, the timing of the order made by the Third Defendant appears to be a deliberate attempt to flout and exclude the jurisdiction of the Court. In the original claim for Judicial Review, the Third Defendant had been ordered to file a defence, detailed grounds and sworn statements by 3pm on 25 October 2004. The order extending the term of the mayor was dated that same day. There is no other conclusion other than that order was passed to oust the jurisdiction of the Court in relation to the original claim for judicial review and is another clear indication that the retrospective effect of the order concerned was unreasonable and not in good faith and other than for proper purposes. The retrospective effect of the order was clearly not in accordance with the spirit of the empowering Act and I rule that while the order is intra vires as far as the extension of the mayoral term from 1 year to 2 years is concerned it is unreasonable, void, and ultra vires as far as the retrospective commencement time is concerned.

Had the Third Defendant made the order before the expiration of the then existing 1 year term of the mayor so that the election of the mayor could have proceeded on the basis that those electing him knew that the election was for a two year term, all would have been well. However, the way that the Minister exercised his discretion in backdating the order, in the context which I have described above, was clearly unreasonable and ultra vires.

CONCLUSION

I come to the conclusion that while the Minister was acting intra vires in extending the term of the mayor from 1 year to 2 years, he has acted unreasonably, arbitrarily, and capriciously and thus acted ultra vires in making the order retrospective as far as the commencement date of it is concerned. The consequences of that decision are that the commencement of Order No. 38 of 2004 of 25 October 2004 is quashed and the order must commence on the date on which it was made.

I make a further mandatory order that the Second Defendant Madeleine Tom in her capacity as town clerk of the Municipality of Port Vila must forthwith convene a meeting of the full council of the Port Vila Municipality to proceed with the election of the lord mayor and the deputy lord mayors.

I further order that until the election of the lord mayor and the deputy lord mayors the existing incumbent mayor and deputy mayors will continue in office on an interim basis.

I award costs to the Claimant against the Third Defendant at the standard rate as agreed or as determined by the Court in due course.

Dated AT PORT VILA, this 17th day of December 2004

BY THE COURT

P. I. TRESTON
Judge