Vanuatu 1980 Constitution (reviewed 2013)

CHAPTER 9. ADMINISTRATION

PART I. The Public Service

57. PUBLIC SERVANTS

1. Public servants owe their allegiance to the Constitution and to the people of Vanuatu.
2. Only citizens of Vanuatu shall be appointed to public office. The Public Service Commission shall determine other qualifications for appointment to the public service.
3. No appointment shall be made to a post that has not been created in accordance with a law.
4. The Prime Minister or the President of a Provincial Government Council may, exceptionally, make provision for the recruitment of staff for a specified period to meet unforeseen needs.In urgent cases, the Public Service Commission may, after consulting the Ministers responsible for finance and public administration, make such a decision instead of the Prime Minister.
5. For as long as their posts exist, public servants shall not be removed from their posts except in accordance with the Constitution.
6. Public servants shall be given increments in their salary in accordance with the law.
7. Public servants shall leave the public service upon reaching retirement age or upon being dismissed by the Public Service Commission. They shall not be demoted without consultation with the Public Service Commission.
8. The security of tenure of public servants provided for in subarticle (5) shall not prevent such compulsory early retirement as may be decided by law in order to ensure the renewal of holders of public offices.

58. EXCLUSION OF SECURITY OF TENURE IN RELATION TO POLITICAL ADVISERS AND TRANSFER OF PUBLIC SERVANTS

1. The rule of security of tenure provided for in Article 57(5) shall not apply to the personal political advisers of the Prime Minister and Ministers.
2. Senior public servants in Ministries may be transferred by the Prime Minister to other posts of equivalent rank.

59. MEMBERSHIP OF PUBLIC SERVICE COMMISSION

1. The Public Service Commission shall be composed of five members appointed for 3 years by the President of the Republic after consultation with the Prime Minister.
2. The President of the Republic shall appoint every year, from among the members of the Commission, a chairman who shall be responsible for organising its proceedings.
3. A person shall be disqualified for appointment as a member of the Commission if he is a member of Parliament, the Malvatumauri Council of Chiefs or a Provincial Government Council or if he exercises a position of responsibility within a political party.
4. A person shall cease to be a member of the Commission if circumstances arise that, if he were not a member, would disqualify him for appointment as such.

60. FUNCTIONS OF PUBLIC SERVICE COMMISSION

1. The Public Service Commission shall be responsible for the appointment and promotion of public servants, and the selection of those to undergo training courses in Vanuatu or overseas. For such purposes it may organise competitive examinations.
2. The Commission shall also be responsible for the discipline of public servants.
3. The Commission shall have no authority over the members of the judiciary, the armed forces, the police and the teaching services.
4. The Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.

PART II. The Ombudsman

61. OMBUDSMAN

1. The Ombudsman shall be appointed, for 5 years, by the President of the Republic after consultation with the Prime Minister, the Speaker of Parliament, the leaders of the political parties represented in Parliament, the President of the Malvatumauri Council of Chiefs, the Presidents of the Provincial Government Councils, and the chairmen of the Public Service Commission and the Judicial Service Commission.
2. A person shall be disqualified for appointment as Ombudsman if he is a member of Parliament, the Malvatumauri Council of Chiefs or a Provincial Government Council, if he holds any other public office, or if he exercises a position of responsibility within a political party.
3. A person shall cease to be Ombudsman if circumstances arise that, if he were not the Ombudsman, would disqualify him for appointment as such.

62. ENQUIRIES BY OMBUDSMAN

1. The Ombudsman may enquire into the conduct of any person or body to which this Article applies-
   1. upon receiving a complaint from a member of the public (or, if for reasons of incapacity, from his representative or a member of his family) who claims to have been the victim of an injustice as a result of particular conduct;
   2. at the request of a Minister, a member of Parliament, of the Malvatumauri Council of Chiefs or of a Provincial Government Council; or
   3. of his own initiative.
2. This Article shall apply to all public servants, public authorities and ministerial departments, with the exception of the President of the Republic, the Judicial Service Commission, the Supreme Court and other judicial bodies.
3. The Ombudsman may request any Minister, public servant, administrator, authority concerned or any person likely to assist him, to furnish him with information and documents needed for his enquiry.
4. The Ombudsman shall grant the person or body complained of an opportunity to reply to the complaints made against them.
5. The enquiries of the Ombudsman shall be conducted in private.

63. FINDINGS OF THE OMBUDSMAN AND REPORTS

1. Wherever, after due enquiry, the Ombudsman concludes that a complaint is unjustified, he shall so inform the complainant and the Prime Minister and the head of the public department or authority concerned.
2. Wherever, after due enquiry, the Ombudsman concludes that conduct was contrary to the law, based on error of law or of fact, delayed for unjustified reasons, or unjust or blatantly unreasonable and that, consequently, any decision taken should be annulled or changed or that any practice followed should be revised, he shall forward his findings to the Prime Minister and to the head of the public authority or department directly concerned.
3. The report of the Ombudsman shall be public unless he decides to keep the report, or parts of it, confidential to the Prime Minister and the person in charge of the relevant public service, on the grounds of public security or public interest. The complainant shall in any case be told of the findings of the Ombudsman.
4. The Prime Minister or the person in charge of the relevant public service shall decide upon the findings of the Ombudsman within a reasonable time and the decision, with reasons, shall be given to the complainant forthwith. Any period limiting the time in which legal proceedings may be commenced shall not begin to run until the complainant has received the decision.
5. The Ombudsman shall present a general report to Parliament each year and may make such additional reports as he considers necessary concerning the discharge of his functions and action taken on his findings. He may draw the attention of Parliament to any defects which appear to him to exist in the administration.

64. RIGHT OF A CITIZEN TO SERVICES IN OWN LANGUAGE

1. A citizen of Vanuatu may obtain, in the official language that he uses, the services which he may rightfully expect from the administration of the Republic of Vanuatu.
2. Where a citizen considers that there has been a breach of subarticle (1) he may make a complaint to the Ombudsman who shall conduct an enquiry in accordance with Articles 62 and 63.
3. The Ombudsman shall, each year, make a special report to Parliament concerning the observance of multilingualism and the measures likely to ensure its respect.

65. OMBUDSMAN NOT SUBJECT TO DIRECTION OR CONTROL

The Ombudsman shall not be subject to the direction or control of any other person or body in the exercise of his functions.

CHAPTER 10. LEADERSHIP CODE

66. CONDUCT OF LEADERS

1. Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-
   1. place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;
   2. demean his office or position;
   3. allow his integrity to be called into question; or
   4. endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.
2. In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1)

67. DEFINITION OF A LEADER

For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

68. PARLIAMENT TO GIVE EFFECT TO THIS CHAPTER

Parliament shall by law give effect to the principles of this Chapter.

CHAPTER 11. EMERGENCY POWERS

69. EMERGENCY REGULATIONS

The Council of Ministers may make regulations for dealing with a public emergency whenever-

1. the Republic of Vanuatu is at war; or
2. the President of the Republic acting on the advice of the Council of Ministers declares a state of emergency by reason of natural calamity or to prevent a threat to or to restore public order.

70. PERIOD OF AND REMOVAL OF STATE OF EMERGENCY

1. When Parliament is in session a state of emergency declared under Article 69 shall cease to have effect at the end of 1 week unless approved by a resolution of Parliament supported by two-thirds of its members.
2. When Parliament is not in session a state of emergency shall cease to have effect at the end of 2 weeks.
3. Where a resolution has been passed in accordance with subarticle (1) the state of emergency approved by it shall remain in force for the period authorised by the resolution except that no such resolution may authorise a state of emergency for more than 3 months at one time.
4. Parliament may meet whenever it decides during a state of emergency.
5. Parliament may not be dissolved under Article 28(2) or 28(3) during a state of emergency. If the life of a Parliament ends in accordance with Article 28(1) during a state of emergency the former members of that Parliament may meet for the purpose only of considering the state of emergency until the new Parliament first meets.
6. Parliament may at any time terminate a state of emergency by a resolution supported by an absolute majority of its members.

71. EFFECT OF EMERGENCY REGULATIONS

1. Subject to subarticle (2) regulations made by the Council of Ministers in accordance with Article 69 shall have effect notwithstanding the provisions of Chapter 2, Part I except that no regulation shall-
   1. derogate from the right to life and the freedom from inhuman treatment and forced labour; and
   2. make provision for the detention of a person without trial for more than 1 month unless such person is an enemy alien.
2. Regulations made by the Council of Ministers in accordance with Article 69 shall be such as are reasonably necessary in the circumstances of the emergency to which they relate and are justifiable in a democratic society.

72. COMPLAINTS TO SUPREME COURT CONCERNING EMERGENCY REGULATIONS

Any citizen aggrieved by reason of regulations made by the Council of Ministers in accordance with Article 69 may complain to the Supreme Court which shall have jurisdiction to determine the validity of all or any of such regulations.