Dear
Hon. Spn. Speaker,
We
strongly urge you therefore, to cancel the session scheduled for this
morning.
Yours
faithfully,"
The
Speaker agrees he read the letter before he entered hamber for the
sittingtting.
Once
the sitting commenced, it would seem reasonable to hope that events would be
a matter of clear record but that appears
to be far from the position as the
records are inadequate, incomplete and inaccurate.
However,
I am satisfied business started that day with prayers during which the Clerk
to Parliament filled in an attendance
sheet (Annex 'A' to the further
affidavit of the speaker). That showed 23 members present and 23 absent but
the Clerk did
not feel his duties required him to notify the Speaker and so
he did nothing.
Following
prayers, the Speaker read the agenda and then requested the Clerk to define
"majority". This he did
giving his opinion of and distinguishing
between absolute, qualified and simple majority. The Court need only
consider
the latter which was that a simple majority needed only half the
members.
That
is patently wrong and I have already so declared in Case No. 114 of 1988.
Unfortunately the Speaker was willing to
accept it and so that day and each
succeeding day, business was conducted in a Parliament that quite obviously
lacked the
quorum necessary under the Constitution.
The
Speaker agreed that he asked for the definition from the Clerk because he
realised Parliament may not be quorate. Having
decided wrongly that a quorum
was present, he proceeded with the day's business including a statement in
reply to a press
statement by the U.M.P. and, after a five minute suspension
of the sitting, a declaration under section 2(f) of the 1983 act
in relation
to five other members of Parliament.
On
26th July, a letter was again handed in by the opposition essentially
raising the same complaint. Although the Speaker
could not recall whether he
first saw it before or after the sitting, I find as a fact that he was aware
of it before the
sitting that morning.
Therefore,
the Speaker realised when he entered the chamber that there would be a
problem establishing a quorum but, because
there were 23 members, he felt
that a quorum was achieved. On each successive day, the same situation
occurred and so he
never invoked Standing Order No. 38.
At
one stage, on 27th, the numbers dropped to 21 members when two failed to
return after a short suspension of the sitting.
The Speaker did then follow
the procedure in Standing Order No . 38 and had to adjourn the house for
lack of quorum. He
explained that he acted on his own initiative in this
matter and clearly accepts that is one way in which his attention can
be
directed under Standing order No. 38.
In
answer to questions by Mr Coombe appearing for the petitioners, he agreed
that he addressed his mind to the matter of
possible lack of quorum at each
sitting but, because he believed 23 members were sufficient, allowed the
sitting to continue.
I accept on his evidence that each day his attention
was directed to the lack of quorum.
As
I have already ruled in another case, a quorum required at least 24 members
and so, once his attention was so directed,
he should have followed Standing
Order No. 38 and, on a count confirming the presence of only 23
members, adjourned the
House without questions put.
He
did not do so and all business conducted by Parliament on the 25th July
after the definition of majority was given by
the Clerk is invalid as the
House was improperly constituted. Similarly on each day thereafter he
clearly considered the
matter again directing his own attention to quorum
and, each time, misinterpreted the rule. At the moment he became aware of
the possibility of a lack of quorum, he should have followed Standing order
No . 38. As he did not do so, the House was
improperly constituted from that
moment on each day. I shall return to the consequences of this later in this
judgment.
The
petition states that, as these were not valid the petitioners have not been
absent and are not liable to vacate their
seats.
I
have already stated in Case No. 114 of 1988 that any business transacted in
the proved absence of a quorum would be in
breach of the clear intention of
the Constitution and would be invalid. I also pointed out that Standing
Order No . 38
is the only way in which a lack of quorum can be proved. I am
also satisfied the wording of that Standing Order clearly envisages
it as a
procedure during a sitting of the House. It does not and cannot apply at any
time before the sitting commences
because, as the quorum is the number
present at a sitting, the sitting has to commence to be able to ascertain
the number
present.
The
mandatory requirement that, once a lack of quorum is proved, the Speaker
must adjourn Parliament without question put
is also clear reference to the
procedure during a sitting of Parliament.
Mr
Coombe urged that the opening words of Standing Orders No. 38 " If at
any time ......." mean that where, as
occurred in 25th and 26th, the
Speaker's attention is directed to lack of quorum before the sitting, he
should not have
sat at all and, if he did, the sitting is void ab initio.
(In case it should became relevant, I add that I found as a fact,
despite
his answers to the contrary, the Speaker did appreciate the letters were
directing his attention to the question
of lack of quorum).
On
this point, I feel Mr Coombe's submission is wrong in two ways:
1. I accept that, where a letter is given or complaint made to the
Speaker immediately before a sitting, it would fly in the
face of common
sense to deem that the Speaker is unable to take notice of it but it is and
can only be a forewarning of
the situation that may occur in the chamber.
Until the Speaker has entered the House and commenced the sitting so that he
can see the members present he cannot know if there is any possibility of a
quorum. He certainly cannot simply announce an
adjournment before sitting.
p class="MsoNormal" sal" style="margin-top:0cm;text-align:justify">Taking
the facts of this case, how could he be sure that all eighteen signatories
would indeed stay away from Parliament
or, further, that they could speak
for the extra five members needed to reach the number of 23 referred to in
their letter?
Having been so warned, he may feel that, as soon as the
sitting starts, the number present suggest a lack of quorum and, if
so, he
must then follow Standing Order No. 38 to check if any other members are
present outside the Chamber. As I have
said, if that shows a lack of quorum
he must adjourn but a sitting has taken place which will have lasted for at
least
five minutes.
2. In Case No. 114 of 1988 I used the following words at page 5.
ass="MsoNormal" sal" style="margin-top:0cm;margin-right:0cm;margin-bottom:0cm;
margin-left:36.0pt;margin-bottom:.0001pt;text-align:justify">""It
is also good sense that no procedure is prescribed to ascertain the quorum
during business conducted immediately
prior to the count although it is
probable the House has not been quorate for some time. It is assumed to be
properly made
and any business transacted to be valid until the lack of
quorum is proved."
Having
had the opportunity to cer those words again, I do not resile from
them. It isIt is only when the lack of numbers
has been proved that the House can
adjourn. At that stage it would be impossible or impractical to try and
ascertain if,
and how long, the House had lacked a quorum prior to the
count. In a case where the Speaker immediately resorts to Standing
Order No.
38, the sitting is and must be deemed to be properly constituted until the
contrary is proved. Therefore on each
of the days in question there was a
valid sitting until the Speaker realised there was a possibility of lack of
quorum
and failed to follow Standing Order No. 38.
The
petitioners admit they were not present in Parliament on any of the days
referred to and there was no dispute of the
Speaker's evidence that they had
no permission to be absent. They were all thus absent from three consecutive
sittings
of Parliament and must vacate their seats.
It
is also argued on behalf of the petitioners that the declarations made by
the Speaker on 28th July pursuant to section
2(d) were invalid in the same
way as the rest of the business that day.
I
confess I am at a loss to understand the meaning and purpose of the
Speaker's declaration on 28th July. I can only assume
that he was making an
announcement that the petitioners seats were now vacant because they had
been absent from three consecutive
sittings and it is right to say, on
behalf of the Speaker, that from the case of
Re Vincent Boulekone S/C 90 of 1986, it appears such a declaration has
been made in the past.
However
the suggestion that a declaration has any effect on the matter and therefore
needs to be made at a valid sitting
of Parliament has no foundation in the
1983 act.
Section
2(d) is mandatory as was pointed out by Williams J. in Boulekone's case. Once a member is absent from three consecutive
sittings without permission, he shall vacate his seat. Unlike section 2(f),
no declaration is required and the vacation is of immediate effect. There is
no thirty day period and neither does the
fact of any legal challenge
suspend the vacation of the seat as occurs under section 3 and, in relation
to Section 2(f),
under section 4.
Therefore,
whether the Speaker did or did not make any declaration to the House about
this makes no difference to the fact
that, on 27th July or, arguably, on
28th July, the petitioners seats had all been vacated and it is a
misconception that
any further procedural step was necessary.
I
pass now to paragraph 34 of the petition which says that section 2(d) is
unconstitutional and ultra vires the Parliament
of Vanuatu. I have already
considered this in Case No. 113 of 1988 and Mr Coombe says that, despite the
different wording,
he places section 2(d) on exactly the same footing. Since
then I have given the judgment in Case No. 113 and I do not find 2(d)
is
unconstitutional.
The
final point raised by the petitioners is the matter of natural justice. By
para 35 of the petition, it is said that
the declarations by the Speaker on
28th July were in breach of natural justice in that the petitioners were
not, prior
to the declarations being made, given any opportunity to state
their case in opposition to the said declarations being made
and there has
thus been a breach of the principle of audi alteram partem.
It
has long been established that the courts will intervene where a judicial or
quasi-judicial decision has failed to observe
the rules of natural justice.
I
have already stated that the so-called declarations pursuant to Section 2(d)
have no legal effect except, perhaps, to
act as a public announcement to the
House that the seats have become vacant. No judicial decision has been
required or
made and so questions of breach of natural justice do not, it
seems to me, became relevant.
If
any question arises as to whether a member has vacated his seat, the Supreme
Court has the power to consider it, not
the Speaker or Parliament.
Mr
Coombe argues, however, that as the petitioners wrote suggesting the
sittings were invalid there was a dispute that required
a decision and that
was a judicial matter. He suggests that, if the Speaker had responded to the
petitioners' letter of
25th July, for example, about the lack of 10 days
notice (a mistake, incidentally, as only 7 days is required for an
extraordinary
session under Standing Order No. 14(5)) the petitioners may
have discussed it, realised the true position and attended the sitting.
I
find that a novel suggestion. The petitioners are all members of Parliament.
They know that the Speaker has the duty to
ensure that the Standing Orders,
practices and procedures of Parliament are respected and observed, and that
is, no doubt,
why they gave him their letter on 25th. If ever they feel
something has happened that is not in accordance with the rules, they
can
and should raise it on a point of order. The Speaker may or may allow a
debate but the person raising it has a right
to explain his position and the
Speaker must give a ruling. If they disagree with that they may challenge it
by written
motion.
The
petitioners, all of whom were present in Port Vila for the session, could
have raised it at the very outset of the session.
If they were correct, the
Speaker would have had to rearrange the sittings to correct the error.
Instead
of taking that course, the petitioners decided to boycott Parliament. I
cannot accept that there is any breach of
the audi alteram partem principle
where the petitioners deliberately fail to avail themselves of clear and
recognised remedies.
Instead
of raising any matters they saw as irregular by normal Parliamentary means,
they chose to embark on a course that
they knew would prevent Parliament
conducting the business for which they had been summoned.
As
Mr Coombe correctly pointed out, they have the right to use the procedure in
this way but, having made that decision,
it ill behaves them to complain at
the inevitable consequence that they have now vacated their seats.
It
has been suggested on their behalf that the Government planned to remove
them from Parliament by resorting, as Mr Coombe
put it, "to the small
print in the Constitution". Even if that is right and I do not accept
it is demonstrated
on the evidence before the Court, the Government could
never have anticipated that the Opposition would take a course that would
inevitably deprive them of their seats without the Government taking or even
needing to take any action.
It
is a sad spectacle in any democracy to see a Parliament deprived of an
opposition for however short a period it continues
but it was the opposition
who chose that course. The Government could do nothing more than attend the
sittings of the House
ready for business. The mistaken ruling on quorum by
the Speaker was very unfortunate but it had no effect on this matter. Whilst
the Government tried to conduct the business for which Parliament had been
summoned, the opposition embarked on a course
that led to the loss of their
seats as inevitably as night follows day. It was a choice that was theirs
alone; it could
not have been forced on them by the Government and it had a
consequence over which only they had any control. As so often is
the case in
such political manoeuvring, the only losers are the democratic process and
the electorate who are deprived
of their voice in Parliament until
by-election can be held.
I
deal now with the declarations sought by the petitioners. I have already, in
Case No. 114 of 1988, made declarations sufficient
to deal with 3(a) and
3(b). Declaration 3(e) is, as I have already stated, misconceived and I
cannot make it.
As
regards declarations 3(c), 3(d), 3(f) and 3(g), it is necessary to consider
the consequences of the matters raised a
little further.
I
have already stated that, as soon as the petitioners had been absent for
three consecutive sittings their seats were automatically
vacated. The
result was that, at the next sitting, the number of members had been reduced
to 28 (the five members suspended
under section 2(f) are still members
whether the declaration under Section 4(1) has been validly made or not).
Thus a quorum
under article 19(4), still a simple majority, is 15 members.
It
is necessary to ascertain which were the three consecutive sittings that the
petitioners missed. At first examination
those would be the sittings on
21st, 25th and 26th. However, the wording of article 19(4) causes me a
little anxiety.
"(4)
Unless otherwise provided in the Constitution, the quorum shall be two
thirds of the members of Parliament. If
there is no such quorum at the first
sitting in any session parliament shall meet three days later, and a simple
majority
of members shall then constitute a quorum."
The
use of the words "shall meet" instead of "shall sit"
suggests the sitting three days later is intended
to be a new meeting.
Meeting
is not defined in the Constitution or Standing Orders but Standing Order No.
12 allows "sessions to include
more than one meeting." I assume
Parliament intended a meaning by the use of the word "meet" and I
do not
feel that in the 1983 act, Parliament intended "three
consecutive sittings" to include the gap between two meetings
even
though that is sometimes very short.
I
rule that the three consecutive sittings under section 2(d) were the 25th,
26th and 27th July and that the sitting on
28th July, therefore, required a
quorum of 15 members.
I
make the declarations sought in 3(c) (i) (ii) and (iii) and 3(d) (i) (ii)
and (iii) but not in 3(c)(iv) and 3(d) (iv).
I
cannot make any declaration in the form of 3(f) and 3(g) because the answer
must depend on the date on which the next
session commences and the number
of seats, if any, vacant at that time.
All business on the 25th July, after the clerk defined
majority, and on the 26th and 27th was done in breach of the Constitution
and is invalid and of no effect and I respectfully advise the Speaker that I
so order under article 52(2).
It follows that Parliamentary business on 28th July was
valid.
Each side is to pay its own costs.
Dated at Port Vila, this 16th day of August, 1988.
Mr Justice Ward
[Editorial Note: This matter went on appeal and
is reported at C.A. 4/88.]
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