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Benard v Republic of Vanuatu [2007] VUSC 68; Constitutional Case 01 of 2007 (26 July 2007)

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

Constitutional Case No. 01 of 2007

BETWEEN:

GUY BENARD
Claimant

AND:

THE REPUBLIC OF VANUATU
Defendant

Coram: Justice Tuohy

Counsels: Applicant in person
Ms. Harders for Respondent

Date of Conference: 11 July 2007
Date of Decision: 26 July 2007

RULING

1. The Respondent applied to strike out this Constitutional Application at the first conference under R 2.8 on the grounds that the evidence filed in support discloses no arguable infringement of any of the types alleged; and that in so far as the application is based upon the Leadership Code Act 1998, no redress under the Constitution is available, that it is an abuse of process in that it seeks to relitigate an extant civil claim, and that some complaints predate the Leadership Code Act 1998. The application to strike out is purportedly made under the Court’s inherent jurisdiction.

2. The Constitutional Procedure Rules of 2003 do not contain a specific provision empowering the Court to strike out an application on the grounds that it is without foundation or vexatious or frivolous. Such a provision was previously found in s 218 (4) of the Criminal Procedure Code Act which was contained within Part XIII of that Act which the Constitutional Procedure Rules replaced.

3. However, nor is such a provision found in the Civil Procedure Rules No. 49 of 2002 but the Court of Appeal has recognized in Noel –v- Champagne Beach Working Committee [2006] VUCA 18; CAC 24 of 2006 that such a power exists under the Court’s inherent jurisdiction in relation to civil claims. In that case, the Court of Appeal pointed out that Rules 1.2 and 1.7 of the Civil Procedure Rules provide a basis for exercising the jurisdiction. Both those rules have been imported into the Constitutional Procedure Rules by Rules 1.3 and 1.4 of the latter Rules. So I am in no doubt that the jurisdiction does exist in relation to Constitutional Applications also. That conclusion is strengthened by the specific reference in Rule 2.8 (a) to the Court’s power at first conference to deal with any application to strike out.

4. However, as the Court said in Noel –v- Champagne Beach Working Committee, the jurisdiction should be exercised sparingly and only in a clear case where the Court is satisfied that it has the requisite material; the applicant’s case must be so clearly untenable that it cannot possibly succeed. Those principles must apply particularly to Constitutional Applications which under R 2.2 are valid no matter how informally made. Technical defects, even serious ones, will not justify the striking out of a Constitutional Application.

5. This Application was prepared and filed by the applicant in person. He is not legally qualified. The Application and sworn statements in support are prolix and diffuse. The fundamental rights which the applicant alleges have been, are being or are likely to be infringed are clearly identified as those set out in Article 5 (1) (d), (e) and (k) (protection of the law, freedom from inhuman treatment and forced labour, equal treatment under the law or administrative action). It is the way in which it is alleged that these rights have been, are being or are likely to be infringed which is less clear. It is obvious from the application itself that the basis of his case has not been fully expressed but he was able to explain it to the Court at the conference.

6. Essentially, the applicant’s complaint is that he is being treated unfairly by certain Government officials in refusing to exempt him from the need for a work permit or alternatively not granting him such a permit. His application claims that in this respect he is not receiving the protection of the law and is not being treated equally with others.

7. He also claims that their actions in relation to him in this respect amount to violations of Article 66 (1) of the Constitution by the officials concerned. Additionally he claims that those officials and others breached Sections 13 and 22 of the Leadership Code Act in relation to the work permit issue and the separate but possibly related issue, of the application by him and his family for citizenship. There is no specific linking in his application of the alleged breach of Article 5 (1) (e) to any particular act.

8. In relation to his claims of breaches of Articles 5 (d) and 5 (k). I am not satisfied that the application is so clearly untenable that it should be struck out. The matters about which the applicant complains are capable of being seen as breaches of the rights guaranteed by Articles 5 (d) and (k) remediable by the Court under s. 6. The fact that the applicant could bring or has brought judicial review proceedings in respect of the same matters does not bar him from bringing the matter before the Court by way of Constitutional Application. That is clear from the plain wording of Article 6 (1) and was recognized by this Court in Timakata -v- Attorney General [1992] VUSA 9, CC 103, 104, 105 of 1992.

9. However, there are aspects of the application which are plainly untenable. First the claim of breach of Article 5 (1) (k), inhuman treatment or forced labour. No one has suggested forced labour. "Inhuman treatment" must be read ejusdem generis with that phrase. Any conduct directed towards another person which the latter finds grossly unfair or upsetting could be popularly described as "inhuman treatment". But in the context of Article 5, this is not sufficient. The phrase refers more to physical or psychological ill-treatment of the Abu Ghraib variety. This ground is struck out.

10. As to claims of breaches of Article 66, there is an issue as to whether Article 53 was intended to give a person the independent right to apply to the Court for redress if the breach relates to the applicant or whether redress is confined to that available under the law (Leadership Code Act 1998) passed by Parliament pursuant to Article 68. The answer is not clear. The applicant’s case here is not so clearly untenable that it should be struck out at this stage.

11. In so far as the application is based upon alleged breaches of provisions of the Leadership Code Act (as opposed to breaches of Article 66 itself), it cannot stand. The procedure for breaches of the Leadership Code Act itself is set out in the Act and does not permit a private citizen to obtain direct redress by way of Constitutional Application.

12. I dismiss the application to strike out the entire Constitutional Application. Those parts of it which are untenable as set out above are struck out. It will have to be amended and consequential directions will be given at next conference which is fixed for 5 September 2007 at 2pm

Dated at Port Vila, this 25th day of July, 2007

BY THE COURT

C. N. TUOHY
Judge