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Mahe v President of the Republic of Vanuatu [2005] VUSC 105; CC 003 2005 (2 September 2005)

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

CIVIL CASE No. 03 of 2005

BETWEEN:

JEAN ALLAIN MAHE
Applicant

AND:

JACOB THYNA, RONALD WARSAL & YVETTE SAM
Second Applicants

AND:

THE PRESIDENT OF THE REPUBLIC OF VANUATU
First Respondent

AND:

THE PRIME MINISTER OF THE REPUBLIC OF VANUATU
Second Respondent

AND:

THE ATTORNEY GENERAL
Third Respondent

Mr Ronald Warsal for the Applicants
Mr Kiel Loughman for the Respondents

ORDER

UPON hearing counsel on behalf of their respective clients, AND UPON reading the sworn statements of Jean Alain Mahe and Ronald Warsal in support of the application, AND UPON considering the submissions of all counsel, the Court makes the following Orders:-

1. A declaration that the purported Removal Notice issued under the hand of the President of the Republic of Vanuatu made at Port-Vila dated February 28, 2005 is unlawful, is granted.

2. A declaration that any purported appointment of persons by the President of the Republic of Vanuatu as a member of the Public Service Commission is unlawful and of no effect, is declined.

3. A declaration that the Applicants appointments as Members of the Public Service Commission for a term of three years with effect from August 15, 2004 cannot be declared vacant and appointment of the First Applicant as Chairman of the Public Service Commission cannot be removed by the President of the Republic of Vanuatu unless one or more of the criteria as set out under Article 59(3) & (4) of the Constitution is satisfied or unless resigns, is granted.

4. A Declaration that the President of the Republic of Vanuatu is prohibited from declaring a vacancy in respect of the office of the First Applicant otherwise than in accordance with Article 59 of the Constitution and/or the Public Service Act No.11 of 1998, is declined as the said declaration was already made by His Excellency the President.

5. The Applicants cannot be reinstated in the Public Service Commission as the Commission has already been re-composed.

6. The Applicants are entitled to damages to be assessed and determined.

7. This matter is listed for conference on 20 September 2005 at 8.15 AM o’clock for assessment and determination of damages to compensate the unlawful removal of the Applicants as Chairman (First Applicant) and Members of the Public Service Commission (First and Second Applicants) contrary to Article 59(3) & (4) of the Constitution.

8. The reasons for the Judgment be supplied as soon as possible.

Dated at Port-Vila this 2nd day of September 2005

BY THE COURT

Vincent LUNABEK
Chief Justice