What is the consultation and legal process to restructure a new ministry?

Aug 13, 2022 | PROJECTS, Opinion | 0

Since late 2021, local NGO Sista has been conducting an investigation into a set of interrelated government decisions that we have identified as crucial to the future of Vanuatu.

The purpose of the investigation is to promote clarity and transparency in government decision-making, and to encourage open and free public dialogue on key issues that affect us all as citizens. The result is four articles to be released in the coming weeks.

The second article focuses on the extent to which proper legal process was followed in the proposed restructuring of the Ministry of Justice and Community Services, something that was questioned in Court decisions and the government’s subsequent withdrawal of the proposal.

VANGO and Transparency International Vanuatu have expressed their support to stand in solidarity with Sista to conduct this investigation.

What is the consultation and legal process to restructure a new ministry?

The proposed establishment of a Ministry of Fisheries, Oceans and Maritime Affairs (to be referred hereafter in the article as Ministry of Oceans) has been met with significant concern from the public. A key area of concern related to the way this decision was made and whether the consultations followed a valid process, according to Vanuatu’s Constitution and Vanuatu’s laws, particularly as it involved dismantling and restructuring the Ministry of Justice and Community Services to establish it.

For background, under Chapter 7 of Vanuatu’s Constitution the executive power of the people of Vanuatu is vested in the Prime Minister and the Council of Ministers, who are also referred to as the Executive branch of government. The Council of Ministers consists of the Prime Minister and all of the Ministers. The Council of Ministers is collectively responsible for overseeing the overall policy direction of government, in line with Vanuatu’s Constitution and the Rule of Law. Vanuatu’s Government Act gives effect to Chapter 7 of the Constitution by providing further detail on the management, arrangement and functions of the Executive branch of government and outlining the processes for the work of the Prime Minister and the Council of Ministers.

Under the Government Act in Section 9 (2) the Prime Minister has the power to assign or withdraw functions from a Ministry, which in plain language would allow the Prime Minister to restructure an existing Ministry (in this case the Ministry of Justice and Community Services) and create a new set of functions for that Ministry (in this case creating a Ministry of Oceans). The Government Act requires, under Part 3 – Support to the Council of Ministers, that these kinds of changes must undergo proper consultation, and sets forth a clear process. So even though the Prime Minister and the Council of Ministers have various powers, these are limited by law and there are clear procedures in place that need to be followed in reaching a lawfully valid decision.

The consultation process that the Council of Ministers should have followed prior to reaching the decision to restructure the existing Ministry of Justice and Community Services into a Ministry of Oceans is outlined in sections 13 and 15 of the Government Act. Here it is clearly specified that a Developmental Committee of Officials will act as an advisory committee to the Council of Ministers. This Developmental Committee of Officials is made up of: the Director-General of the Prime Minister’s Office, as Chairperson; the Director-General of each Ministry; a political advisor from each Ministry; the Director of the Department of Strategic Management, who acts as Secretary to the Committee; and the Secretary to Council of Ministers. It is this body that is responsible for carrying out the consultation process for decisions made by the Council of Ministers.

The consultation process outlined in the Government Act requires that all members of the Developmental Committee of Officials be sent a copy of any submission or paper before it can be considered. The Act also specifies that the Chairperson of the Developmental Committee must not list a submission or paper for consideration unless they are satisfied that ‘there has been proper consultation with other Ministries’. Additionally, the Council of Ministers is also required, according to the Government Act, to receive advice from the Attorney General on the legal implications of the submission and from the Director General of the Ministry of Finance on the financial implications of the submission and to ensure that it ‘complies with the principles of responsible fiscal management’.

In the case of the proposed restructuring of the Ministry of Justice and Community Services into a Ministry of Oceans, the Council of Ministers announced this proposed change on October 10th in Lakatoro, Malekula in a statement made by the Prime Minister. At this time, the then Director General of the Ministry of Justice and Community Services, Ms Dorosday Kenneth Watson, as a member of the Council of Minister’s advisory body, the Developmental Committee of Officials, made an application to the Supreme Court for judicial review. Judicial review is when a judge or judges review an action or decision made by an executive body of government, to determine if the decision was made in accordance with lawful processes.

The issue brought before the court in this case was that the Council of Ministers’ decision was in breach of the Government Act, meaning that the Council of Ministers had gone beyond their powers, as provided for by law, when making their decision. Although the court found that the Director General of the Ministry of Justice and Community Services had an arguable case, the case ultimately did not go to trial. The Government revoked its decision to carry out the planned restructuring of the Ministry of Justice and Community Services into a Ministry of Oceans. The Court allowed for this so that the Council of Ministers could undergo a proper consultation process if they wished to proceed with this restructuring.

A key issue in this case was that the Director General of the Prime Minister’s office, who is the Chairperson to the Developmental Committee of Officials, admitted that they had not sent copies of the submission to the members of the Developmental Committee for their review prior to their meeting. The consultation process also requires that the Chairperson of the Developmental Committee not list the submission for consideration unless they are satisfied that proper consultation has occurred within all the Ministries and that the First Political Advisor of the Ministry that is sponsoring the submission has approved it. In this case, the Court did not find that all of the requirements for consultation had been met.

The revocation of the decision to restructure Vanuatu’s Ministry of Justice and Community Services into a Ministry of Oceans was important. It has required that the Government go through a lawful process if the Prime Minister and the Council of Ministers still intend to follow through with the proposed restructuring. This important case raised by the now former Director General of the Ministry of Justice and Community Services is significant as it brought to light the importance of ensuring that people within the Executive branch of government are following lawful processes and making valid decisions with the power that is given to them by the Constitution and through Vanuatu’s laws. Holding our leaders accountable for their decisions – publicly and in our Courts – will ensure that they abide by the law when making future decisions, which strengthens our nation’s integrity as well as the Rule of Law in Vanuatu. Ms. Kenneth Watson is currently seeking damages for unfair dismissal against the Public Service Commission to redress her termination.

Press Release HERE

Article 3 HERE

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What is the consultation and legal process to restructure a new ministry?