Iati v Republic of Vanuatu
JUDGMENT OF THE COURT
1. The appellant appeals against an order of the Chief Justice made on 23 February 2026 striking out a Constitutional application: Iati v Republic of Vanuatu [2026] VUSC 24.
2. The circumstances on which the Constitutional application was based were relatively confined. In 2018, the appellant had been appointed as Director-General in the Ministry of Education and Training (MoET) for a period of 4 years and then, in April 2022, was reappointed for a further term of four years. On 11 September 2025, the Acting Prime Minister (APM) made an order stating that the appellant was transferred to the position of Director-General in the Ministry of Justice, Youth and Community Services (MoJYC). It seems that the APM was purporting to exercise the power vested in the Prime Minister by Art. 58(2) of the Constitution which provides:
Senior public servants in Ministries may be transferred by the Prime Minister to other posts of equal rank.
3. Subsequently, in a letter to the appellant on 19 September 2025 headed “Temporary Transfer”, the Public Service Commission (PSC) “endorse[d]” the transfer and said that it was for the period from 11 September 2025 to 11 December 2025. The PSC confirmed that the terms, conditions and entitlements of the appellant’s appointment as Director-General remained unchanged and went on to direct him to prepare a “3 months Performance Agreement plan” for the “Temporary Transfer” period.
4. In fact, the appellant continued as Director-General in the MoJYC until 13 January 2026 when the PSC “requested” him to “return to [his] substantive position within the [MoET]”. The appellant complied with that request. He did not suffer any loss of entitlements during the period from 11 September 2025 to 13 January 2026 when he had worked as Director-General of the MoJYC.
5. In his Constitutional application, the appellant alleged that the order for transfer by the APM on 11 September 2025 has been “unconstitutional” and “unfair”.
6. At the first conference, the Chief Justice raised with the appellant’s counsel, Mr Molbaleh, whether the application disclosed any cause of action. In his reasons, the Chief Justice recorded the acknowledgement by Mr Molbaleh that Art. 58(2) of the Constitution empowered the APM to transfer the appellant from one Ministry to another, at [7]. He also recorded that Mr Molbaleh had been unable to identify any provision in the Constitution which had been infringed by the transfer, at [10]. In those circumstances, the Chief Justice regarded the application as misconceived so that it should be struck out. He then recorded the concession by Mr Molbaleh that a striking out was appropriate, at [11].
7. The appellant then appealed to this Court against the striking out.
8. At the commencement of the hearing of the appeal, we raised with Mr Molbaleh the apparent difficulty for him in showing error by the Chief Justice in striking out the Constitutional application given his inability to identify a constitutional provision which had been infringed and when he had himself conceded that the striking out was appropriate. Mr Molbaleh acknowledged that he had made the concessions recorded by the Chief Justice and seemed to recognise the difficulties in the way of the appeal. Nevertheless, he sought to justify the appeal by reference to events following the appellant’s resumption of his position as Director-General in the MoET in January 2026.
9. Mr. Molbaleh referred in particular to a letter from the Attorney General of 24 February 2026 expressing the opinion that the transfer order of the APM on 11 September meant that, despite the PSC action in January 2026, the appellant remained as Director-General of the MoJYC and was not able to discharge the functions of Director-General of the MoET. He said that it was the appellant’s receipt of that letter which had “triggered” this appeal. When pressed about that submission, Mr Molbaleh acknowledged that the events occurring in January and February of 2026 could not bear on the question of whether the transfer order of 11 September 2025 involved some infringement of the appellant’s constitutional rights or some other infringement of the Constitution. Mr Molbaleh then conceded that the appeal should be dismissed.
10. We also note that the endorsement of the transfer by the PSC, as the employing authority, which had occurred on 19 September 2025 gives rise to real issues about the utility of the appeal in any event.
11. These circumstances make it inappropriate for the Court presently to consider the constitutionality of the APM’s decision of 11 September 2025. If the appellant does wish to challenge the lawfulness of the APM’s order of 11 September, it will be open for him to do so in other proceedings, for example, in proceedings for judicial review or for declaratory orders. In such proceedings, his grounds will not be confined in the same way as they were in his attempted Constitutional application.
12. Further, the correctness or otherwise of the position asserted by the Attorney General in her letter of 24 January 2026 is not a matter properly before this Court. If the appellant does wish to contend that, despite the opinion of the Attorney General, he is presently lawfully occupying the position of Director-General in the MoET (and to seek a declaration to that effect), he will have to do so in separate proceedings.
13. As to the costs of the appeal, Mr Molbaleh accepted that the Republic was entitled to an order for costs on dismissal of the appeal.
14. The Court raised with Mr Molbaleh whether he or the appellant should have to pay the costs of an appeal so obviously lacking merit. Mr Molbaleh accepted that it was appropriate that he pay the respondent’s costs of the appeal personally.
15. Having regard the above matters, we make the following orders:
a) The appeal is dismissed;
b) Mr Molbaleh is to pay personally the Republic’s costs of and incidental to the appeal which we fix in the sum of VT75,000.
DATED at Port Vila this 15th day of May 2026.
BY THE COURT
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Hon. Chief Justice Vincent Lunabek