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Madhavan v Falvey [1973] FJLawRp 27; [1973] 19 FLR 140 (28 November 1973)

[1973] 19 FLR 140

COURT OF APPEAL OF FIJI

JAMES MADHAVAN

v

JOHN NEIL FALVEY AND OTHERS

[COURT OF APPEAL, 1973 (Gould V.P., Marsack J. A., Henry J.A.) 19th, 28th November]

Civil Jurisdiction

Parliament - parliamentary proceedings - whether doctrine of separation of powers breached- whether the English law that the House has absolute control over its own internal proceedings applicable to Fiji - to what extent affected or negatived by Constitution of Fiji 1970 Article 54(1) - Parliamentary Powers and Privileges Ordinance (Cap. 3) s. 17 and 23 - Supreme Court Ordinance (Cap. 9) s. 22(1) and 23 - Fiji Independence Order 1970 s. 5(1) - jurisdiction of Courts in relation to the Constitution- Constitution of Fiji 1970 Article 97 - whether actions of respondents constitute breach of Constitution of Fiji 1970 Article 57(1) - whether Supreme Court can interfere with the internal proceedings of the House if rights of persons outside the House unaffected.

Courts - jurisdiction - whether Court can interfere with the internal proceedings of the House of Parliament.

Practice and procedure-writ of summons - Order setting aside- Rules of the Supreme Court 0.12 r. 8 and 0.18 r. 19 - whether summary procedure under 0.18 r. 19 appropriate.

The appellant was a Member of the House of Representatives. At the end of a duly convened sitting of the House, the Speaker adjourned the House sine die under Standing Orders. The respondents objected to the adjournment and physically took over the House and the fifth respondent purported to sit as Deputy Speaker.

The appellant had sought declarations from the Supreme Court, that the actions of the fifth respondent in sitting as Deputy Speaker were ultra vires the Constitution of Fiji and that the actions of the respondents in physically taking over the House were unconstitutional and illegal, a breach of the Constitution of Fiji, the doctrine of separation of powers and conventions of Parliamentary democracy.

The trial judge decided the matter under summary procedure in accordance with Rules of the Supreme Court 0.18 r. 19 and refused to make the declarations on the grounds that:-

1. It was unquestionable that the allegations of the appellant were confined to proceedings in the House.

2. Article 54(1) of the Constitution of Fiji gave the House, subject to provisions of the Constitution, power to regulate its own proceedings.

3. The rights of persons outside the House were not affected.

4. A Court could not interfere with the internal proceedings of the House.

5. The Constitution of Fiji and in particular s. 57(1) did not remove or diminish the power of the House to control its own internal affairs.

6. There was no breach by the respondents of the doctrine of separation of powers.

On appeal against these finding it was held:

1. Rules of Supreme Court 0.18 r. 19 should be used sparingly but it was a matter for the discretion of the trial judge and no unfairness resulted in the present case.

2. The doctrine of separation of powers had no relevance to the facts of the present case.

3. The privilege of the House to control its own internal proceedings had become part of the law of Fiji unless the Constitution otherwise required.

4. The House had exclusive over its own internal proceedings under Constitution of Fiji Article 54(1).

5. The decision as to who should preside as Speaker of the House was exclusively one of internal procedure. The rights of persons outside the House being unaffected, it was for the House alone to pass upon the conduct of the Deputy Speaker in assuming the chair in the circumstances alleged.

Per Curiam: Article 97 of Constitution of Fiji can only be called in aid by persons whose "interests are being or are likely to be affected by such contravention". The Court did not attempt to define the word "interest" by in any event as a perquisite to the exercise of jurisdiction by the Court, the allegation should be made and the interest specified in the application or pleading.

Cases referred to:

Bradlaugh v. Gosett [1884] UKLawRpKQB 20; (1884) 12 Q.B.D. 271; 53 L.T. 620.

Dingle v. Associated Newspapers Ltd. [1960] 1 All E.R. 294; [1960] 2 Q.B. 405.

Church of Scientology of California v. Johnson-Smith [1972] 1 All E.R.378; [1971] 3 W.L.R. 434.

Attorney General v. Shiu Prasad Halka, 18 F.L.R. 210.

Waymer v. Southard[1825] USSC 1; , 10 Wheat 1 46.

Liyanage v. The Queen [1967] A.C. 259.

The Queen v. Richards [1955] HCA 36; (1955) 92 C.L.R. 157.

Appeal against the judgment of the Supreme Court refusing declarations condemning the respondents' actions as being a breach of the Constitution.

S.M. Koya and K.C. Ramrakha for the appellant
R.I. Kapadia for the respondents

Judgment of the Court (read by GOULD V.P.): [28th November 1973.] -

This is an appeal from an Order made by the Chief Justice on a summons brought under Order 12 rule 8 and Order 18 rule 19 of the Applied Rules under the Supreme Court Rules 1968 asking that a Writ of Summons and Statement of Claim in Action No. 119 of 1973 be set aside. The summons was brought by the defendants on the following grounds:-

(a) That the court has no jurisdiction to deal with the issues mentioned or to grant the relief sought.

(b) That the endorsement on the said Writ of Summons and the issue thereof is an abuse of the process of the Court.

The Chief Justice, being of the opinion that there was no foundation for the plaintiff's action, made an order granting the application with costs.

The action in question was, to say the least, an unusual one. The plaintiff is a member of the House of Representatives of Fiji. The first defendant is the Attorney-General, a member of the Senate and (by virtue of Article 60 of the Constitution of Fiji) entitled to attend and take part in the proceedings of either House of Parliament. The other defendants are all members of the House of Representatives being respectively the Ministers of Finance, Labour, Fijian Affairs and Rural Development, and, lastly, the Deputy Speaker. The Parliament of Fiji, established by Article 30 of the Constitution consists of Her Majesty the Queen, the House of Representatives and the Senate. It will be convenient to continue to refer to the appellant as "the plaintiff" and to the respondents as "the defendants".

In the endorsement on the writ the plaintiff alleged -

"4. The Speaker of the House of Representatives is on Raojibhai Dahyabhai Patel, who had been unanimously elected to the said position by all Members of the House of Representatives, including the defendants, and the rights and duties of the Speaker are defined by the Constitution of Fiji.

5. On the 4th day of April, 1973 at the end of a duly convened sitting of the House of Representatives, the said Speaker adjourned the House sine die under the provisions of the Standing Orders of the said House.

6. The defendants objected to the said adjournment and notwithstanding the direct ruling of the Speaker and his subsequent assertions that the House had been adjourned sine die, the defendants, and each of them, against the consent and express directions of the Speaker physically took over the House of Representatives, commandeered the staff of the Speaker in the House of Representatives, and physically, removed Her Majesty's mace of Parliament from the Chamber of the Speaker and purported to stage a sitting of the House of Representatives on two occasions on the said 5th day of April, 1973 with the fifth defendant purporting to sit as Deputy Speaker of the House.

7. The fifth defendant in purporting to sit as Deputy Speaker defied the Speaker, and sat against his express directions at a time when "the Speaker was neither absent nor unable to sit, and the fifth defendant contravened all conventions of Parliamentary democracy, and the Constitution of Fiji.

8. The plaintiff says that the said sittings of the House were nullity, and a grave contempt of Parliament, and Her Majesty the Queen, and such demonstration that "might was right", and usurpation of the Parliamentary Chamber by the defendants were a direct contravention of the Constitution of Fiji, and breached the doctrine of separation of powers, and were contrary to all conventions, and traditions of Parliamentary democracy."

In the Supreme Court some time was taken in debate on procedural matters- in particular whether the Statement of Claim filed by the plaintiff should be referred to. There was also an affidavit by the first defendant to the effect that the proceedings referred to in the writ of summons were wholly matters relating to the internal management of the procedure of the House of Representatives.

During the course of the argument, the Chief Justice ruled that counsel for the plaintiff was not entitled to extend his argument to cover allegations appearing in the Statement of Claim but not in the Indorsement of the Writ. While this was made one of the grounds of appeal to this Court no serious argument was addressed to us upon it. We do not propose to devote time to the question, as we are satisfied that the allegations of fact contained in the Statement of Claim added nothing to those in the Indorsement, material to the issue that the Chief Justice had to decide. He said, very properly, in his judgment that he assumed all the plaintiffs allegations to be true for the purposes of the proceedings before him and it is quite clear that the plaintiff's case was in no way prejudiced by the exclusion of the Statement of Claim. As to the affidavit of the first defendant, whether or not it was admissible is not material, for it was no more than an expression of opinion on a question which it was for the Court to decide, and clearly played no part in the determination by the Chief Justice of the legal issues before him.

In the Supreme Court, Mr Koya, for the plaintiff, indicated that he would limit his claim in the action to the following two paragraphs:-

"(b) a declaration that the actions of the fifth defendant in sitting as Deputy Speaker in the circumstances, and in direct defiance of the Speaker's ruling, and directions, were ultra vires the Constitution of Fiji, and contrary to all conventions of Parliamentary democracy.

(c) a declaration that the actions of the defendants in physically taking over the House, commandeering the staff of the Speaker, taking over the Mace of Her Majesty the Queen, and purporting to stage a sitting of the House with the fifth defendant as Deputy Speaker were unconstitutional, illegal, and a nullity, and constituted a breach of the Constitution of Fiji and of the doctrine of separation of powers, and conventions of Parliamentary democracy."

At the hearing below the general submission of the defendants was that the matters complained of related exclusively to matters connected with the conduct of proceedings in the House of Representative and that such proceedings are not subject to judicial control. By virtue of Article 54 of the Constitution, the House has power to regulate its own proceedings. The case for the plaintiff, in brief, was that (a) the English authorities are not applicable to a territory which has a written constitution, (b) that the action of the fifth defendant in purporting to sit in the circumstances alleged, was a breach of Article 57(1) of the Constitution (c) that the purported sittings of the House on the 5th May, 1973, were a breach of the Constitution and Standing Orders and (d) the action of the defendants in purporting to stage these meetings was a breach of the doctrine of separation of powers. A summary of the findings of the Chief Justice on these submissions is as follows:-

(a) It is unquestionable that the allegations of the plaintiff were confined to proceedings in the House.

(b) There can be no question that the House, by virtue of Article 54(1), may, subject to the provisions of the Constitution, regulate the conduct of its own proceedings.

(c) There is no allegation that the defendants with or without the support of others, passed any enactments or did anything that would affect the rights of persons outside the House.

(d) The authorities clearly established that the control of the House over its internal proceedings is absolute and cannot be interfered with by any Court.

(e) The provisions of the Constitution, and in particular Article 57(1) thereof do not remove or diminish the power of the House in Fiji to manage and control its own internal proceedings; the definitions of "Speaker" and "sitting" carry the matter no further.

(f)While Chapters 5, 6 and 7 of the Constitution suggest that the Constitution is based upon a separation of the functions of government the allegations of the plaintiff do not support in the slightest degree the claim that there has been a breach by the defendants of the doctrine of separation of powers.

Before coming to the challenge to these findings on appeal it will be convenient to refer to one matter which is common ground. It is accepted by Mr Koya that the authorities show that, under the unwritten constitution of England, the Courts have no jurisdiction to adjudicate upon matters which relate to proceedings within the House which do no affect the rights of persons outside the House. In his judgment the Chief Justice quoted extensively from Bradlaugh v. Gossett [1884] UKLawRpKQB 20; [1884] 12 Q.B.D. 271, the leading authority on the question, and referred also to the more recent cases of Dingle v. Associated Newspaper Ltd. [1960] 1 All E.R. 294 and Church of Scientology of California v. Johnson-Smith [1972] 1 All E.R. 378. We will quote only two short passages from the judgments in Bradlaugh v. Gossett (supra): Lord Coleridge C.J. said at p. 275-

"What is said or done within the walls of Parliament cannot be enquired into in a court of law."

and, at p. 278, Stephen J. said-

"I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings.................."

See also Dicey on the Law of the Constitution (10th Edn.) p. xliv-

"No court today would seriously challenge that matters concerning the proceedings within either House are to be discussed and adjudged in that House and not elsewhere."

We will deal first with a matter arising under Ground (b) of the Memorandum of Appeal: Mr Koya argued that the issues raised by the plaintiff involved the determination of disputed facts and difficult questions of law and that the Chief Justice should not have decided the matter under summary procedure. He relied upon the judgment of this Court in Attorney-General v. Shiu Prasad Halka (18 FLR 210) in which the refusal of a judge of the Supreme Court to deal summarily with a matter under Order 18 rule 19, was upheld. This Court recognised that Order 18 rule 19 should be used sparingly, and not where legal questions of importance and difficulty are raised. Mr Koya has submitted that the legal questions in this case are important and difficult and that disputed questions of fact may well arise if the action came to trial. As to questions of fact, the defendants concede, for the purpose of the application, all the facts alleged, and the facts relied upon at the trial could not go outside the scope of the Writ and pleadings. But as to questions of law, we do not resile in any way from what was said in Attorney-General v. Shiu Prasad Halka, but it must lie very much in the discretion of the judge hearing the application, and upon his view of the legal issues involved, whether he will be prepared to deal with it summarily or not. It may well be, that had the Chief Justice refused in this case, his decision would have been upheld on appeal. That does not mean, however, that he was not entitled, on his view of the case, to accept the burden unless his doing so would result in some unfairness to the opposing party. In the present case, the Chief Justice accepted for the purpose of the application, the truth of all facts asserted by the plaintiff and we are unable to see that any unfairness resulted. It is not a case, as was Attorney-General v. Shiu Prasad Halka (supra), in which there was a doubt whether an important legal question would arise in the subsequent action. The appeal cannot, therefore, succeed on this ground.

We propose to relate this judgment more to the findings of the Chief Justice (above) than specifically to the grounds of appeal, and think that by so doing we will sufficiently cover those grounds. Mr Koya's argument in relation to finding (a) was that a matter could only be an internal matter of the House if the House is properly constituted. The implication is that anything done by a house improperly constituted must be a nullity. That may or may not be correct but it is not the question for decision in this case. What is for decision here is whether it is for the House or the Courts to decide whether it is properly constituted. Finding (a) is linked with finding (c) which we do not understand Mr Koya to contest- the proceedings affected no one outside the House. On the facts it appears to us that these two findings are unchallengeable.

Before turning to the main issue, we will deal with finding (b)-the separation of powers- and say at once that we are entirely in agreement with the views of the Chief Justice, as expressed in the following passage of his judgment -

"Insofar as Mr Koya's contention rests on the doctrine of separation of powers, Chapters V, VI and VII of the Constitution certainly suggest that the Constitution is based upon a separation of the functions of government which means in the words of Marshall C.J. in Waymer v. Southard [1825] USSC 1; 10 Wheat, 1, at p. 46 that "the legislature makes, the executive executes and the judiciary construes the law". But there appears to me to be nothing whatever in the plaintiff's allegations to support his claim that on the occasions concerned, the Executive, in breach of that doctrine, usurped the functions of the Legislature. Assuming "that all or some of the defendants form part of the Executive it is obvious that on those occasions they were not the Executive of Fiji nor did they do anything that would suggest that they acted as if they were. Whatever they did in connection with the purported sittings of the House it is not alleged that they passed or attempted to pass any enactments or did anything else which would amount to an exercise or attempted exercise of the law-making functions of the Legislature. In these circumstances Liyange's case and the other cases cited by Mr Koya in this connection become irrelevant. In my opinion the plaintiff's allegations, which I am assuming to be true for the purposes of the proceedings before me, do not support to the slightest degree the claim that the defendants have breached the doctrine of separation of powers."

We do not need to express any opinion on the question whether the doctrine of separation of powers applies in Fiji. The case relied upon by Mr Koya, Liyanage v. The Queen [1967] A.C. 259, may be of some assistance on that matter but by no means provides a complete parallel. As the Chief Justice has indicated, the doctrine has no relevance on the facts of this case.

We now turn to our summary of the Chief Justice's findings under heads (b), (d) and (e). The preliminary question is whether the English law that the House has absolute control over its own internal proceedings is applicable to Fiji; if so to what relevant extent is it affected or negatived by the Constitution.

As to the former, we think that, so far as local legislation does not provide, the privileges of the English Parliament (of which the sole right of regulating its internal proceedings is one) would attach to the newly created Houses in Fiji. It is true that there is no statement in the Fiji Constitution in the same terms as that of section 49 of the Australian Constitution, which states that until the powers privileges and immunities of the House are declared by Act of Parliament, the powers privileges and immunities of the House shall be those of the Commons House of Parliament of the United Kingdom at the establishment of the Commonwealth: see The Queen v. Richards [1955] HCA 36; [1957] 92 C.L.R. 157. In Fiji, Article 54(1) gives Parliament power to make provision for the powers privileges and immunities of the two Houses "for the purpose of the orderly and effective discharge of the business of the two Houses".

The Parliamentary Powers and Privileges Ordinance (Cap. 3) provides for some powers and privileges but does not purport to be an exclusive list and is concerned largely with procedural matters and offences by individuals. It is not in our opinion intended by implication to abolish those established privileges of the House itself, the power to punish for contempt and the exclusive right to control its own internal proceedings. This view receives support from section 23 of the Ordinance which reads:-

"Subject to the provisions of this Ordinance, a copy of the Journals of the Commons House of Parliament of the United Kingdom of Great Britain and Northern Ireland printed or purporting to be printed by the order or by the Printer of the Commons House aforesaid shall be received as prima facie evidence without proof of its being such copy upon any inquiry touching the privileges, immunities and powers of Parliament or of any member thereof."

Section 17 also contains a reference to the usage and practice of the Commons House of Parliament. A further link with the English practice can be seen in the Standing Rules and Orders where, by rule 86 cases of doubt are to be resolved in accordance with the relevant practice of the Commons House of Parliament, and likewise in any cases not provided for in the Fiji Rules and Orders that practice is to be followed.

By section 22(1) of the Supreme Court Ordinance (Cap. 9) the common law, the rules of equity and the statutes of general application which were in force in England on the 2nd January, 1875, became law in Fiji (subject, inter alia, to any Fiji legislation). By section 23 of the same Ordinance such portions of the practice of the English Courts as existed on the date aforesaid (and were not inconsistent with general rules of the Supreme Court) were also brought into force. The Ordinance itself, of course, is preserved as an existing law by section 5(1) of the Fiji Independence Order 1970. It would appear that at first the lex et consuetudo Parliamenti was regarded as not being part of the ordinary law. Sir Edward Coke was apparently of that opinion- see Erskine May's Parliamentary Practice (17th Edn.) p. 165 and the authorities cited there. Later, however, the courts came to regard the privileges of Parliament as part of the law of the land of which they were bound to take judicial notice (Op. cit. p. 172). Whether, therefore, the privileges of the House to control its own internal proceedings is part of the Common law, or based upon general statute law (e.g. the Bill of Rights) or even if it arose through a development in court practice during the protracted controversy on the question between Courts and Parliament, it has, in our opinion, become part of the law of Fiji unless the Constitution otherwise requires. We do not think that the Parliamentary Powers and Privileges Ordinance negatives this position.

The general jurisdiction of the courts in relation to the Constitution is conferred by Article 97; special provision is made elsewhere for Chapter 2, and Articles 37, 44(2), 51, 78(3) and 117(1) also apply to special cases. None of these special provisions affects the question now under consideration. Article 97 reads:-

"97(1) Subject to the provisions of sections 44(2), 78(3) and 117(1) of this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for a declaration and for relief under this section.

(2) The Supreme Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:

Provided that the Supreme Court shall not snake a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected.

(3) Where the Supreme Court makes a declaration in pursuance of the preceding subsection that any provision of the Constitution has been contravened and the person by whom the application under subsection (1) of this section was made or, in the case of other proceedings before the Court, the party in those proceedings in respect of whom the declaration is made, seeks relief, the Supreme Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the Supreme Court under any law for the time being in force in Fiji, as the Court considers appropriate.

(4) The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court in relation to the jurisdiction and powers conferred upon it by this section (including rules with respect to the time within which applications shall be made under subsection (1) of this section).

(5) Nothing in this section shall confer jurisdiction on the Supreme Court to hear or determine any such question as is referred to in section 37 or 51 of this Constitution."

It is Mr Koya's contention that this Article empowers the Supreme Court to adjudicate in the present case. For the provision of the Constitution allegedly broken he points to Article 57(1) which is as follows -

"57(1) The Speaker or in his absence the Deputy Speaker or in their absence a member of the House of Representatives (not being a Minister or Assistant Minister) elected by the House for the sitting shall preside at any sitting of the House."

Mr Kapadia, for the defendants, relied upon Article 54(1) which reads -

"54(1) Subject to the provisions of this Constitution, each House of Parliament may regulate its own procedure and may make rules for that purpose including in particular the orderly conduct of its own proceedings."

This, it is contended, makes the House the complete master of its own procedure and is in conformity with the privilege we have discussed above, of having exclusive jurisdiction in such matters. Mr Kapadia also mentioned Article 69(5) but as Mr Koya, at least before this Court, limited his submissions to the unauthorised replacement of the Speaker by the Deputy Speaker at the two meetings of the 5th April 1973, this Article is not relevant.

The Chief Justice dealt with those matters in the following passage of his judgment -

"I reject Mr Koya's contention that if the Deputy Speaker presided over the House when the Speaker was neither absent nor unable to attend in the course of a dispute within the walls of the House it is for this Court to decide whether or not he acted contrary to the Constitution. Article 57(1), like Order 10 of the Standing Orders of the House, recognises the need for someone to preside over the House when it is sitting and makes provision to ensure that there will be someone to perform that function. In my opinion it was inserted in the Constitution to meet that need and for no other reason. It concerns a matter of procedure and I can find nothing whatever in it to even suggest that its intention is to remove or diminish the power of a House of Parliament in this Dominion to manage and control its own internal proceedings. It has no more significance in this respect than Order 10 which Mr Koya conceded might justify the contention that the conduct of the fifth defendant was a matter relating to the internal management of the House and, presumably, not subject to the control of this Court, Assuming that the defendant acted contrary to the provisions of the Article and the Order it is for the House alone to pass upon his conduct so long as the rights of persons outside the House are not affected."

With respect we agree entirely with what the Chief Justice has said there about the purpose of Article 57(1) being to ensure that there will be someone to preside over the sittings of the House. At least in part, it is procedural but, unlike most procedural matters, it has been made a part of the Constitution. That being so, it must be a provision of the Constitution within the wording of Article 97 and contravention of its terms may, provided the other requirements of Article 97 are fulfilled, be the subject of an application to the Supreme Court under that Article. The Court would have jurisdiction to ascertain whether there had been a contravention. The Constitution is, by Article 2 thereof, the supreme law, and to any extent that the Parliamentary privilege was inconsistent with it, but only to that extent, the privilege would be void.

It is to be noticed that in an example given by Stephen J. in Bradlaugh v. Gossett (supra) at p. 278, he says -

"The legal question which this statement of the case appears to me to raise for our decision is this:- Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable."

It is one of the functions of a Court so to construe the law as to avoid conflict, if that can properly be done. The passage just quoted from the judgment of Stephens J. indicates that even the statute law will not be examined by the Courts if it relates to the internal proceedings of the House. We think it both permissible and proper to apply that approach to Article 57(1) and to hold that the basic requirements that the Speaker, Deputy Speaker or elected Member shall preside are constitutional, and if material business is transacted at a sitting of the House not so presided over it may be a contravention of the Constitution challengeable (by a person qualified) under Article 97. But the decision which of the persons mentioned shall preside is essentially one of internal procedure, which must necessarily be resorted to by the House in deciding the question. In that sphere the privilege mentioned continues to operate and the Courts may not inquire whether the House has interpreted the law correctly or not. It has often been said that this particular privilege is one of necessity and it would lead to a chaotic situation if any member could rush to the Courts for a declaration that the election of a member to preside was in some way defective. We agree entirely with the Chief Justice's view that, the rights of persons outside the House being unaffected, it was for the House alone to pass upon the conduct of the Deputy Speaker in assuming the chair in the circumstances alleged.

We would therefore uphold the judgment under appeal on this around. There is one matter which should be mentioned, though not fully argued in the Supreme Court. As Mr Kapadia pointed out, section 97 of the Constitution can only be called in aid by a person who's "interests are being or are likely to be affected by such contravention". Under Article 97(2) the Court is empowered to make such a declaration in any other proceedings lawfully brought before the Court, but again only where the person's interests are being or are likely to be affected. The restriction would apply to the plaintiff in the present case, but he has made no claim in either the Writ or the Statement of Claim of such prejudice or likely prejudice to his interests. The qualification is not doubt inserted to prevent irresponsible or futile resort to the Courts.

We do not propose to attempt to define what is meant by the word "interests". What does seem clear is that a mere motive, political or otherwise, is not within the term; furthermore, as an allegation that a person's interests are being or are likely to be affected is made by Article 97 a prerequisite to the exercise of jurisdiction by the Court, the allegation should be made and the interest specified in the application or pleadings, As we have said we did not have the benefit of full argument on this question, and do not need to rely upon it, but would point out that, as the pleadings stand, the absence of an interest must have led to the inevitable failure of the action.

For the reasons we have given the appeal fails and is dismissed with costs.

Appeal dismissed.