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Latasi v Tausi [2005] TVHC 4; Case No 04 of 2005 (29 November 2005)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

CASE NO. 4 OF 2005

BETWEEN:

KAMUTA LATASI
Applicant

AND

OTINIELU TAUSI
Respondent

S Barlow for the applicant
Respondent in person

Date of Judgment: 29th November, 2005

JUDGMENT

The applicant is a Member of Parliament for Funafuti. The respondent is a Member for Nanumaga and currently the Speaker of the House.

The statement of agreed facts gives the background to this case.

“On 24^th May 2005 the applicant traveled to Suva for medical treatment under the Tuvalu Medical Scheme.

On 1 July 2005 the Governor General appointed and proclaimed a session of Parliament to commence at 9am on Tuesday 26 July 2005.

This session of Parliament commenced on 26^th July 2005 and finished on 5 August 2005. The session lasted 9 days. The applicant was absent for all 9 days. The applicant did not ask for leave of absence

The applicant received medical advice not to travel to Funafuti for the sittings of Parliament. During the session of Parliament, the applicant remained in Suva under the Tuvalu Medical Scheme.

On 10^th October 2005 the respondent wrote to the applicant informing him that his seat had been declared vacant pursuant to Rule 43 (1) of the Rules of Procedure. The applicant received this letter in Suva on 11^th October 2005 and returned to Funafuti on 20 October 2005.

Translated, the letter of 10^th October 2005 reads:

“Dear Hon Member,

In July 2005 there was a session of Parliament from 26^th July to 5^th August 2005 which lasted 9 sitting days.

Under section 43(1) of the Rules of Procedure, it stipulated that if a member absents himself from 5 days or more without good reason that is related to Parliamentary duties or the nation as a whole, then the seat of the member will be declared vacant.

Your Honourable, it is a duty which brings me sadness, but I have to inform you that as your absence from that session has gone beyond the specified number of sitting days, your seat in Parliament has been declared vacant with effect from 10 October 2005.

Thank you.”

On 20^th October 2005 on instructions from the applicant, the People’s Lawyer wrote to the Speaker challenging the lawfulness of the decision and asking that he revoke it. There was no response and so the applicant filed an originating summons on 24^th October 2005 seeking the following declarations:

“That the decision of the Speaker declaring the applicant’s seat in Parliament to be vacant is null and void on the following grounds:

(a) That pursuant to Rule 43(1) of the Rules of Procedure of Parliament, the applicant was not absent from Parliament for two or more consecutive sessions;

(b) That the said decision was ultra vires;

(c) That the said decision was unreasonable in all the circumstances;

(d) That the applicant was denied natural justice.”

The parties agreed that this case could be dealt with without a hearing on affidavits and written submissions. I was advised that the next sitting of Parliament has been arranged to start on 30^th November and so I gave my ruling on 25 November and stated I would give my reasons in writing. I now do so.

Rule 43(1) and (2) provides:

“43 Non-Attendance of Members

(1) If a Member is wholly absent from the sitting of Parliament covering a total period of 5 days or more and extending over 2 consecutive sessions, for reasons other than Parliamentary or public business, the seat of that Member becomes vacant in accordance with section 96(1) (c) of the Constitution.

(2) Whenever a Member is unable for reasons of illness or otherwise, to attend a sitting of Parliament or part thereof, he shall ask leave of absence from the Speaker and any business standing in his name may be pursued by any other Member so authorized by him in writing, but unless so pursued such business shall laps;

Provided that a Member of Cabinet shall not authorize a Private Member and vice versa.”

Section 96(1) (c) of the Constitution provides:

“96 Tenure of Office

(1) The seat of a Member of Parliament becomes vacant -

(c) if he is absent from the sittings of Parliament for such period and in such circumstances as are prescribed in the Rules of Procedure of Parliament;

......”

The Respondent correctly submits that the Speaker in cases of doubt regulates the conduct of business in Parliament and further submits that it is recognized Parliamentary practice that the Speaker is responsible for ruling whenever any question arises as to the interpretation or application of a rule of procedure. He asserts that the attendance or non-attendance of members of Parliament at the sittings of Parliament is fundamental to the conduct of the business of Parliament and he points to the terms of Section 106(6) of the Constitution in which it is provided that his decision on any matter relating to the conduct of the business of Parliament is final.

I set out section 106(3) and (6):

“106 Functions of the Speaker

...

(3) Subject to any Act of Parliament made for the purposes of subsection (6), the Speaker is responsible for ensuring that the business of Parliament is conducted in accordance with this Constitution, any applicable Act of Parliament and the Rules of Procedure of Parliament;...

(6) Subject to any Act of Parliament, the decision of the Speaker on any matter relating to the conduct of the business of Parliament is final;...”

The respondent’s contention is that his decision on the vacation of the applicant’s seat is a matter relating to the business of Parliament and his decision cannot, therefore, be challenged in this Court.

Section 108 of the Constitution gives Parliament the power to make rules of procedure “for the regulation and orderly conduct of its proceedings and the discharge of business at sittings of Parliament, and for related purposes.”

Counsel for the applicant submits that this does not prevent the Court from determining the validity of the actions of the Speaker in this case. He suggests that section 100(1) (b) gives the High Court specific power to consider this case:

“100 Questions as to membership of Parliament

(1) The High Court has jurisdiction to determine, in accordance with law, any question whether-...

(b) a member of Parliament has vacated his seat, or is required by section 98 to cease to perform his functions as a member;...”

Similarly section 131 of the Constitution which is headed ‘Constitutional interpretation’, gives the High Court ‘original jurisdiction to determine any question as to the interpretation or application of this Constitution.” That jurisdiction includes the enforcement of the Constitution subject to law; section 5.

It has long been the position in England and many other countries with so-called Westminster constitutions that the courts will not intervene in matters of parliamentary privilege. However since the case of Stockdale v. Hansard; [1839] 9 Adel 1, the courts have consistently maintained that they have a duty to decide questions which are brought to them involving a contravention of the laws of the land even when Parliamentary privilege is concerned but acknowledge that the control of Parliament over its own proceedings is absolute and not subject to judicial interpretation. Similarly, the courts will not interfere with the interpretation of a statute by Parliament so far as the proceedings of the House are concerned; Bradlaugh v. Gosset; [1884] UKLawRpKQB 20; [1884] 12 QBD 271.

Section 106(6), upon which the respondent relies, relates to the conduct of the business of Parliament. Parliamentary business is not defined in the Constitution but is the name given to the work of Parliament in the House itself and in its committees whether of the whole house or standing committees. The Order of the day sets out the business of Parliament and does not extend to matters which occur outside the House.

In regard to the conduct of the business of the House, the Speaker’s duty to maintain the dignity and proper procedures of the House is clearly set out in Part VI, Division 4 of the Constitution and his authority in such matters cannot be challenged.

It is true that section 108 allows Parliament to make rules of procedure not only for the conduct of its proceedings and discharge of the business of the House but also for related purposes. However, the protection of the Speaker’s decision from challenge under section 10 (6) is specifically limited to the conduct of the business of Parliament.

I am satisfied the Court has jurisdiction in this case.

Rule 43(1) does not relate to the conduct of the business of the Parliament but to a related matter, namely membership of Parliament, a matter over which the Court has been specifically given jurisdiction under section 100. The resolution of that question requires the court to consider the effect of section 96(1) (c) which in turn requires a determination of the meaning and application of rule 43.

Section 100 (1)(b) provides two separate issues upon which the determination of the Court may be sought; first whether a member has vacated his seat and, second, whether a member is requires to cease to perform the functions of office as a result of being sentenced to a period of more than 12 months imprisonment.

This case relates to the first issue and the question for the Court turns on whether the applicant’s absence breached rule 43(1) of the Rules of Procedure.

Mr Barlow points out that the definition of ‘Session’ in the first Schedule to the Constitution:

“‘session’, in relation to Parliament, means the series of sitting days occurring during the period-

(a) commencing with the first sitting day after Parliament is prorogued or after a general election; and

(b) ending on the day on which Parliament is next prorogued or dissolved without being prorogued”

clearly means that Parliament is in session from the first sitting day after prorogation to the next prorogation.

That is correct and the wording of rule 43 clearly acknowledges that by its specific reference to absence from ‘the sitting of Parliament’.

The applicant suggest that the rule means that the seat will only become vacant if the member is absent for a total of 5 days or more and that period of absence extends over two consecutive sessions.

The respondent does not agree. He states that the intention of this rule was to make the attendance of members in sittings of Parliament mandatory. He tells the Court that he was the Chairman of the Rules Committee when it last reviewed the Rules. He suggests that most important in this rule is the number of days absence rather than the number of sessions involved. The intention of including the extension to two consecutive sessions was to strengthen further the need for members to attend by the forward carriage of days of absence from the previous session to the next following session to give a cumulative effect. As I understand his argument, it means that an absence of, say, three sittings days in one session followed by an absence of two sitting days in the next will result in the member’s seat becoming vacant but, if five or more days are missed from one session, the seat would also become vacant.

He points out that the applicant’s interpretation would result in ridiculous and inequitable results. Thus, a member who was absent for twenty days in one session and not the next will retain his seat yet a member who was absent for the last four sitting days in one session and the first day in the next will have to vacate his seat.

Whilst I accept the respondent’s explanation of the intention of the Rules Committee, the Court is bound by the rules of interpretation of which the most fundamental is that, in the absence of any ambiguity, the words must be given their plain and ordinary meaning. If the words can be read in their ordinary meaning, that is the meaning which must be applied and suggestions that the intention of those who drafted the rules was different cannot change the meaning.

What then is the meaning of the rule? It is certainly not well worded but I am satisfied that the period of time mentioned must relate to the absence, as both parties agree. The inclusion of the word ‘total’ indicates that the five days or more do not need to be consecutive and that would be consistent with the reference to extending over two consecutive sessions. However, nothing in the wording as it stands covers the respondent’s suggestion that it meant that the absences will count if they are either in one session or in two consecutive sessions.

I am satisfied that the plain meaning of the rule is that if a member is absent from five or more sitting days, his seat will become vacant if those five or more days extend over two consecutive sessions. In the absence of anything to the contrary it must, therefore, mean that absences in one session along cannot result in the vacation of the seat. I am uncertain the meaning or purpose of the word ‘wholly’ but I do not find that it affects the meaning I have given.

The applicant was clearly absent from the whole session of nine days but his seat will, on the wording of the rule, only become vacant if he is absent from the next session of Parliament when absence for a single day will be sufficient to bring section 96(1) (c) into effect.

The application is granted and I make the following declarations:

1. that the absence of the Honourable Member for Funafuti, Kamuta Latasi, from Parliament during the sitting from 26 July 2005 to 5 August 2005 did not breach the terms of Rule 43(1) of the Parliament of Tuvalu Rules of Procedure and, in consequence, the grounds for vacation of his seat under Section 96(1) (c) of the Constitution were not applicable.

2. The declaration by the Honourable Speaker of Parliament made on 10 October 2005 that the seat in Parliament of the Honourable Member for Funafuti, Kamuta Latasi, was vacant with effect from the said date is null and void.

It is not necessary to consider the other grounds raised by the applicant and they were not fully argued by the parties. However, it may be appropriate to point out that the terms of section 96(1) (c) and rule 43(1) mean that, once a member has breached the terms of the rule, his seat becomes vacant at that time.

I would add two points.

First, where Parliament sits for relatively short periods, as is the case in Tuvalu, the rules for the attendance of the members are particularly important. If, as the respondent states, the result in this case was not the intention of the Rules Committee, it is important that the rules are revised to ensure they accurately reflect the wish of Parliament. It is clear that the present meaning of the rule will produce inequitable results.

Second, this whole matter would have been avoided if the applicant, an experienced and senior Parliamentarian, had properly availed himself of the provisions of sub rule (2). His evidence is that he told the staff in the Speaker’s office that he was going abroad for medical treatment. At that time he did not know when the next sitting of Parliament would take place and whether he would be absent. Clearly he could not have thought that could be considered as a request for leave of absence. When he heard of the dates for the next sitting he arranged to travel but received last minute medical advice not to travel.

He must have known of the provisions of sub-rule (2) and, had he made proper application for leave of absence at that stage, this whole action would have been unnecessary.

[GORDON WARD]
CHIEF JUSTICE

29^TH NOVEMBER, 2005