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In re the Constitution, Korman v Natapei [1997] VUSC 46; Civil Case 168 of 1997 (4 December 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 168 OF 1997

IN THE MATTER OF:
THE CONSTITUTION OF THE REPUBLIC OF VANUATU

BETWEEN:

1. HON. MAXIME CARLOT KORMAN MP
2. HON. WILLIE JIMMY MP
3. HON. HON. DONALD KALPOKAS MP
4. HON. SELA MOLISA MP
5. HON. JOE NATUMAN MP
6. HON. BARAK SOPE MP
7. HON. SATO KILMAN MP
8. HON. IARRIS NAUNUN MP
9. HON. EDWARD MELSUL MP
10. HON. KEASIPAE SONG MP
11. HON. JOHN LEE SOLOMON MP
12. HON. AMOS BANGABITI MP
13. HON. LOUIS TERIP MP
14. HON. CYRIAQUE METMETSAN MP
15. HON. PAUL TELUKLUK MP
16. HON. PAOLO TABIVAKA MP
17. HON. ALLEN NAVUKI MP
18. HON. JOHN WILLIE MORRISON MP
19. HON. DICKINSON HUGHUG MP
21. HON. ETIN EDGEL MP
22. HON. JOSIAH BAHAVUS MP
23. HON. PHILIP PASVU MP
24. HON. JACKLEEN RUBEN TITEK MP
25. HON. JAMES ADIN TAMATA MP
26. HON. SILAS HAKWA MP
26. HON. SHEM NAUKAUT MP
27 HON. WILLIE OLI VARASMAITE MP
28. HON. DANIEL BANGTOR MP
29. HON. WILLIAM EDGEL MP
30. HON. JEFFREY LAUHA MP
31. HON. HENRY IAUKO
all being Members of Parliament
Petitioners

AND:

HON. NIPAKE EDWARD NATAPEI MP
Speaker of Parliament
First Respondent

AND:

H.E. JEAN MARIE LEYE LENALCAU
President of the Republic of Vanuatu
Second Respondent

AND:

ATTORNEY GENERAL
Third Respondent

Coram: Mr Justice Vincent Lunabek J., Acting Chief Justice

Counsel: Dr. Geoffrey A. Flick & Jon Baxter Wright for the Petitioners
Mr Kalsakau for the Respondents

FER">FULL WRITTEN REASONS FOR JUDGMENT

The Petitioners, who are 31 Members of Parliament, made application by Summons to this Court, challenging the constitutional validity of the decision of the Hon. Speaker of Parliament dated 27 November 1997 to close the Second Ordinary Session of Parliament and also the constitutional validity of the decision of his Excellency the President of the Republic of Vanuatu dated 27 November, 1997 purported to dissolve the National Parliament while a Motion of No Confidence in the current Prime Minister is pending before Vanuatu National Parliament for debate and vote upon as scheduled on 4 December 1997.

The reliefs sought are set out in the Constitutional Petition against the First, Second and Third Respondents. The Constitutional Petition of 29 November 1997 was supported by the Affidavits of:

- Maxime Carlot Korman MP

- Barak Sope MP

- Sato Kilman MP

- Jonathan Baxter-Wright, Solicitor of the Petitioners, filed respectively on 1st and 2nd December, 1997.

The Petitioners apply to the Supreme Court for the exercise of its jurisdiction under Articles 53(1) and 53(2) of the Constitution and in conjunction with section 218 of the Criminal Procedure Code Act [CAP 136] in the terms set out in the Petition as follows:

1. A Declaration that the ruling of the Speaker of Parliament dated 27 November 1997, to close the Second Ordinary Session of Parliament is null and void and of no effect.

2. A Declaration that the purported dissolution of Parliament by the President date 27 November 1997, is unconstitutional and null and void and of no effect.

3. A Declaration that the Second Ordinary Session of Parliament has not closed, and Parliament is still sitting, and can debate the Motion of No Confidence on 4 December 1997.

4. A Declaration that the constitutional rights of the Petitioners and each of them have been infringed.

5. Costs.

6. Such further or other Orders and Declarations as this Honourable Court deems fit.

The matter came before me on the 2nd day of December, 1997. The matter was then adjourned to the afternoon of the same day (of 2 December 1997) to allow, inter alia, the Respondents to respond to the Petition and filed corresponding Affidavits. The Respondents filed the Affidavits of the following persons in support thereof:

- Hon. Edward N. Natapei, Speaker of Parliament

- Hon. Rialuth Serge Vohor, Prime Minister of the Republic of Vanuatu

- Hon. Vincent Bulekone, Minister of Finance and a member of the Council of Ministers

- Hon. Walter H. Lini, Minister of Justice and member of the Council of Ministers

- Etienne Combe, Secretary General of the Council of Ministers.

It is to be noted that there is no Affidavit evidence from His Excellency, Jean Marie Leye Lenalcau, the President of the Republic of Vanuatu herein referred to as "Second Respondent".

All applications were done in open Court, therefore, general public is allowed. There is no application to dismiss the Petition in pursuant to s.218(4) of the Criminal Procedure Code Act [CAP 136].

:

Before I proceed any further, I do think it necessary to make few observations concerning tle of the Court and my role as a Judge of this Court, in thin the type of cases as this one. Vanuatu is a small country with a small size population and thus a small community in which people tend to know each other, have strong family relationships, have custom and traditional values. Some of you today in this Court are chiefs, leaders of the Community, that is, "Big Men" and "Big Women" of this Country. You brought your application before the Court of law seeking for justice. As far as I am concerned as a Judge of the Supreme Court of the Republic of Vanuatu, I must make it quite clear that the Law I am bound to apply in this case and cases of this nature, is the Law of Vanuatu. I will apply that Law to this case without any consideration whatsoever for political views or policies or its consequences. Those political and/or policy considerations and its consequences are for you only, "Big Men" and "Big Women" to consider but, not for the Court. In order to explain further the role of the Court, I will borrow and adopt the words of Megarry V.C. in the case of John -v- Rees (1969) 2 All E.R. 363 at 367, who describes the role of the Court in this way:

"I Must make explicit what all lawyers will recognise as implicit, but which those who are not lawyers may not fully appreciate. I am not in the least concerned in this case with the rightness or wrongness or the desirability or undesirability of any political views or policies within the confines of any political or other unit. My concern is merely to see that those concerned in these proceedings obtain justice according to law, irrespective of politics".

Brief facts

On Tuesday 25 November 1997, a Motion of No Confidence in the Prime Minister, signed by 11 Members of Parliament, have been lodged with the Office of the Speaker of Parliament. [see Affidavit of Hon Maxime Carlot Korman MP in Annexure marked ‘A’].

On Wednesday 26 November 1997, the Speaker accepted the Notice of Motion and ruled that it was in order. He then notified the Members that the Motion is to be debated on 4 December 1997. [see also Affidavit of Maxime C. Korman in Annexure marked ‘B’].

On Thursday 27 November 1997, the following events happened:

- The Parliament met in the Morning.

- Sato Kilman, the then Minister of Lands, attended the Parliament sitting.

- Barak T. Sope did not attend the Parliament sitting.

- The Speaker adjourned the Parliament until 2 p.m. in the afternoon that day (27 November 1997).

- A meeting of Council of Ministers took place at about 10 o’clock that morning (27 November 1997).

- 10 Ministers attended the Council of Ministers’ meeting except 2, namely, Barak Sope and Sato Kilman.

- The Council of Ministers decided at that meeting which took place at about 10.00am o’clock that morning that the Government withdraw all Government Bills in the afternoon Session of Parliament of 27 November 1997 and further the Council of Ministers approved to request the President of the Republic of Vanuatu to dissolve Parliament notwithstanding the Motion of No Confidence in the Prime Minister which is still pending before Parliament to be debated on 4 December 1997.

- In the afternoon of 27 November 1997, the Leader of Government Business withdrew all Government Bills from the House. The Motion is not withdrawn. It is still pending before Parliament to be debated and voted upon on 4 December, 1997 as scheduled.

- The Hon. Speaker of Parliament relying upon previous Motions of the House, ruled that there being no other business of the House, the Second Ordinary Session of Parliament is closed. [see Affidavit of Hon. Edward N. Natapei, Speaker of Parliament].

- The President of the Republic dissolved National Parliament on the same date 27 November 1997 in the afternoon.

On 28 November 1997, Ministers Barak Sope and Sato Kilman received their letters of termination dated 26 November 1997.

On the 29 November 1997, the Constitutional Petition was filed in the Supreme Court on behalf of the 31 members of Parliament [see Affidavit of Mr Baxter Wright, Solicitor of Clayton Utz, of Port-Vila filed on 2nd December 1997].

All the Respondents were served.

The 4 December 1997 is purported to be the date fixed by the Speaker of Parliament for debate and vote on the Motion of No Confidence.

he relevant legt legislative and constitutional Provisions

Section 218 of Criminal Procedure Code Act [CAP 136] says:

In conjunction with Article 53 of the Constitution, Section 218 of the Criminal Procedure Code Act CAP 136 in Part III of the said Act set out the procedure to be followed when such applications were brought before the Court.

Section 218 reads:

"(1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles .... 53(1), 53(2) .... of the Constitution shall be by petition and shall be valid no matter how informally made.

(2) The Supreme Court may on its own motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require.

(3) The petitioner shall, within 7 days of the filing of his petition in the Supreme Court or within such longer period as the court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents filed in relation to such petition to be served on the party or on all those parties whose actions are complained of.

(4) Any party who is served with a copy of the petition in pursuance of sub-section (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.

(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and inquire into it.

It shall summon the party or parties whose actions are complained of to attend the hearing."

Constitutional Provisions

Article 53 of the Constitution says:

" (yone who considers that a provision of the Constitution has been infringed in rela relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has the jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."

Article 28 of the Constitution says:

"(1) Parliament, unless sooner dissolved under paragraph (2) or (3), shall continue for 4 years from the date of its election.

(2) Parliament may at any time decide, by resolution by the votes of an absolute majority of the members at a special sitting when at least three-fourths of the members are present, to dissolve Parliament. At least 1 week’s notice of such a motion shall be given to the Speaker before the debate and the vote on it.

(3) The President of the Republic may, on the advise of the Council of Ministers, dissolve Parliament.

(4) General elections shall be held not earlier than 30 days and not less than 60 days after any dissolution.

(5) There shall be no dissolution of Parliament within 12 months of the general elections following a dissolution under subarticle (2) or (3)."

Article 43 of the Constitution says:

"(1) The Council of Ministers shall be collectively responsible to Parliament.

(2) Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week’s notice of such a motion shall be given to the Speaker and the motion must be signed by one sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected."

2 questions to be answered by this Court:

1. Is the decision of the Speaker of Parliament dated 27 November 1997 to close the 2nd Ordinary Session of Parliament affected/infringed a provision of the Constitution in relation to each and all of the Petitioners as Members of Parliament?

The answer to that question is: yes.

The constitutional rights invoked by the Petitioners are those conferred by Articles 28 and 42 of the Constitution.

The decision of the Speaker affects the rights of the Petitioners as members of Parliament to debate the Motion of No Confidence as scheduled on 4 December, 1997.

Upon considering all the relevant provisions and the Affidavit evidence, I am of opinion that this Court can and must intervene.

This Court has previously exercised its jurisdiction in the case of Willie Jimmy and Others v. Attorney General, Vanuatu Supreme Court Case No. 126 of 1996; on appeal, Attorney General and Others v. Willie Jimmy and Others, Appeal Case No. 7 of 1996.

The Court of Appeal held:

"We have already noted, and indeed emphasised, the principle that Parliament is not subject to direction by the Courts so long as its proceedings are not inconsistent with obligations placed upon it by the law from which it derives its powers. If authority is needed for that view it is provided by two cases cited for the Appellants, Rediffusion (Hong Kong) Ltd v. A/G of Hong Kong [1970] UKPC 12; (1970) AC 1136, and Cormack v. Cope, (1974) 131 CLR 432.

Both make it plain that the Courts have a duty to interfere "if the Constitutionally required process of law making is not properly carried out."(per Barwick CJ in Cormack v. Cope at 453).

In this case, once the Motion was accepted by the Speaker and the Petitioners were notified of the date fixed for the Motion to be debated, the Speaker should not close the Session.

Accordingly, in my judgment the jurisdiction and power of the Court pursuant to Art. 53 of the Constitution is not restricted to the enforcement of "fundamental rights" conferred by Art. 5 of the Constitution but extends to, as Art. 53 itself makes clear by its express terms, the enforcement of "a provision of the Constitution".

Further, in entertaining the Present Petition and in granting relief this Court would not be interfering in any matter the exclusive province of Parliament but would be interfering and upholding the Constitution. The interpretation of the Constitution and the granting of relief is self-evidently not a function of Parliament but the responsibilities entrusted to this Court.

In this case, the matters which are the subject of dispute before this Court are matters arising under the Constitution. What is sought to be resolved is not a matter within the exclusive domain of Parliament but rather the manner in which Parliament, is denying Constitutional rights of the Petitioners as Members of Parliament.

It is to be understood that the Speaker of Parliament must apply both:

- the Standing Orders enacted pursuant to Art. 21(5) of the Constitution; and

- the terms of the Constitution itself.

Therefore, the Speaker of Parliament cannot make a decision to close Parliament in a manner inconsistent with the Constitutional rights conferred by Art. 43 of the Constitution.

Equally, no provision of the Standing Orders can be inconsistent with any provision of the Constitution.

Everyone and all of us have to bear in mind that the Constitution is the Supreme law of the Republic of Vanuatu. (Art. 2).

I now turn to the second question which is:

2. Is the purported dissolution of Parliament by the President of the Republic dated 27 November 1997, unconstitutional and null and void and of no effect?

The President of the Republic retained a discretion to dissolve Parliament under Art. 28(3) of the Constitution. What was challenged is the manner in which the President exercises his discretion under Art. 28(3). Was the discretion of the President under Art. 28(3) of the Constitution properly exercised?

In this case, the Petitioners say the President has a discretion. He is not subject to any control. The Prime Minister may come to him and request him to dissolve Parliament. The President may refuse to dissolve Parliament.

The Petitioners say the Attorney has had an opportunity to file Affidavits. However, there is a silence from the President.

The Petitioners invite the Court to draw an inference that the President had no choice but to dissolve Parliament. The evidence to support that is the document annexed to Mr Sope’s Affidavit marked "C" where the President says this:

"... mi kasem ODA I kam long ofis blong PM blong desolvem Parliament... so naoia wei mi karem ODA blong Desolvem olsem we Constitution hemi kivim raet long mi tru long ODA we I kam daon long Kavman tedei 27 November 1997....".

The Petitioners further say that any reservation as to the meaning of the document marked "C" and annexed to Sope’s Affidavit, should be dispelled by the President’s silence.

This Court has not the benefit of hearing or considering any evidence from the President of the Republic since there is no Affidavit from the President filed before this Court to that effect. It follows that the President’s silence assists the Court in drawing the inference put by the Petitioners.

Further, there is evidence that the President of the Republic received a request/Notice to dissolve Parliament. However, there is no evidence as to whether the President has been fully and/or properly advised as to why to dissolve Parliament.

It transpires from the Affidavit evidence of the Hon. Prime Minister, Rialuth Serge Vohor that the purported reason to request the President of the Republic to dissolve Parliament is contained in the document annexed and marked "D" in the following:

"SECRET

COUNCIL OF MINISTERS

Tabled by: Honourable Prime Minister

Subject: Dissolution of Parliament

Text:

Vanuatu has experienced three changes of Government during the course of 1995 and 1996 and which has caused effects on the economy and worse contribution to political stability in the Republic of Vanuatu. Most of the reason set out by way of motion of no confidence to outset a particular government are all not relevant to the communities of the Republic of Vanuatu.

The outgoing instability will cause further problems to the country which the society will suffer through any actions they may cause by Parliament by way of Motion of No Confidence.

Recommendation:

Council of Ministers is requested to approve the decision to request the President of the Republic to dissolve the Parliament from today’s date."

The document marked "D" and annexed to the Hon. Prime Minister’s Affidavit is undated. However, there is no doubt that it was tabled before the Council of Ministers’ meeting of 27 November 1997 in the morning (at about 10.00am), before the Parliament Session in the afternoon. This was confirmed by the Affidavit of Etienne Combe, Secretary General of the Council of Ministers in document Annexure and marked "B" in the following terms:

"...

Re: Decision No 238 of the Council of
Minister’s Meeting No. 29/27/11/97

The Council of Ministers decided that the Government withdraws all Government Bills this afternoon and further approved to request the President of the Republic of Vanuatu to dissolve Parliament.

....."

In essence, the Petitioners say that if the said Document "D" annexed to the Hon. Prime Minister’s Affidavit is purported to be the reason for requesting the President to dissolve Parliament while the Motion of No Confidence in the said Prime Minister is still pending before Parliament for debate and vote upon it as scheduled on 4 December, 1997, it will mean that the Prime Minister will determine what is relevant to be considered and by doing so, the democratic debate will be kept silent.

The Petitioners further say that once the Motion is accepted and fixed for debate, it is up to Parliament to decide. How they will vote is a different matter. They submitted they are entitled to have the Motion debated and the reasons advanced by the Respondents through the above document "D" is an admission and that is wrong.

I accept the Petitioners submissions. In my considered opinion, the majority rule was the central feature of the structure of Government under the Constitution of Vanuatu of 1980. If the Prime Minister, elected pursuant to Sch. 2 of the Constitution and not as in many countries selected by the Head of State, lost the support of the majority of the members of Parliament he might be defeated on a motion of no confidence passed by an absolute majority of votes. A Prime Minister who tried to by-pass and/or deny the Constitutionally provided procedure of Parliament, namely motion of no confidence (under Article 43(2) of the Constitution) which establishes through it the exercise of the Parliamentary control over the Executive Branch of the Government, concedes impliedly that he no longer enjoyed a parliamentary majority. That Prime Minister was, therefore, not entitled to request the Head of State to dissolve Parliament whilst the Motion of No Confidence against him is pending before Parliament for debate and vote upon it as already scheduled. That is a matter for Parliament. Any crisis related to that would be solved where the Constitution intended it to be solved, viz. in the National Parliament.

In this case, I am adopting and applying according to the circumstances of the case the constitutional principle applied by the Court of Appeal of the Solomon Islands in the case of Hilly v. Governor General of the Solomon Islands [1994] 2 Law Reports of the Commonwealth.

In the present case, the purported reason given by the President of the Republic to dissolve Parliament on 27 November 1997 can be extracted from the document marked "C" annexed with Hon. Sope’s Affidavit which purported to be the President’s speech before he dissolved the National Parliament.

The relevant part of it is as follows:

"... LONG SAED BLONG WOK BLONG KAVMAN BLONG YUMI, TAEM WEI YUMI NO WANDEM FOKIVIM YUMI BAKEKEN, KANTRY BLONG YUMI VANUATU HEMI NO STANAP MEKEM TODAY 27 NOVEMBA 1997, MI KASEM ODA IKAM LONG OFIS BLONG PM BLONG DESOLVEM PARLIAMENT WEI HEMI STAP TEDEI. MI OLSEM PRESIDENT BLONG NATION IA, MI SORI TUMAS BLONG DISOLVEM PARLIAMENT IA BEI BAMBAE MI MAS MEKEM NOMO BLONG TRAEM FAENEM SOLUSEN BLONG NIUFALA KAVMAN NEKIS TAEM IKAM INSAED LONG PAWA BLONG I HOLEM KANTRY BLONG YUMI FROM KAVMAN BLONG YUMI WEI ISTAP TEDEI YUMI TALEM OL GUDFALA TOKTOK PLANTE TAEM BUT NEVA YUMI SAVE TALEM I TRUE... MI ASKEM YUFALA PIPOL BLONG VANUATU MO OL BIKMAN BLONG VANUATU PLIS SAM TAEM YUMI WRONG YUMI SAVE TALEM O SORI I TRU MI MI WRONG SPOS YUMI NO WANTEM TALEM SORI LONG YUMI BAMBAE NEVA KANTRI BLONG YUMI HEMI STAOM GUD, BAMBAE HEMI STAP LONG TRABOL OL WAY.

SO NAOIA WEI MI KAREM ODA BLONG DISOLVEM PARLIAMENT OLSEM ME CONSTITUTION HEMI KIVIM RAET IA LONG MI TRU LONG ODA WE I KAM DAON LONG KAVMAN TEDEI 27 NOVEMBER 1997 MI DISOLVEM SE PARLIAMENT WEI YUMI ELECTEM LONG 1995 SPOS MI NO WRONG HEMI OFFICIALLY CLOSE..."
[The underlining words are my emphasis].

It transpires from the above extracted passage of the President’s speech that the purported reason given by the President to dissolve Parliament on 27 November, 1997 are in substance the purported reasons given by the Hon. Prime Minister, Rialuth Serge Vohor in the document marked "D" annexed with his Affidavit referred to earlier.

The relevant and clear paragraph is as follows:

"... long saed blong wok blong Kavman blong yumi, taem wei yumi no wandem fokivim yumi bakeken, kantry blong yumi Vanuatu hemi no stanap mekem today 27 November 1997, mi kasem ODA ikam long ofis blong P.M. blong desolvem Parliament wei hemi stap tedei..." [emphasis added]

The respondents say in effect, that " the President of the Republic may, on the advice of the Council of Ministers dissolve Parliament" under [Article 28(3) of the Constitution. Therefore, the rights of members of Parliament may only be deemed absolute during the life of Parliament and once Parliament is dissolved the rights of members of Parliament have become subservient and dependent upon the discretion of the President. In essence, the Respondents say the constitutional rights of the Petitioners under 43 (2) of the Constitution is only absolute if Parliament has not been dissolved. But, by the President’s act of dissolution, the Petitioners are unable to justify any infringement of the Constitution on the part of the President against them.

The arguments of the Respondents could not be sustained. The reason being that if there was no Motion of No Confidence in the Prime Minister pending before Parliament for debate as scheduled on 4 December, 1997 the Petitioners would have no constitutional basis at all to petition this Honourable Court.

There is no doubt that the President retains the discretion to dissolve Parliament under Art. 28(3) of the Constitution. What was challenged is whether the President exercises his discretion properly in respect to the Constitutional right of the Petitioners as members of Parliament under Art. 43(2) of the Constitution.

The discretion conferrable to the President under Art. 28(3) of the Constitution, is not absolute. It has to be exercised in accordance with the terms and spirit of the Constitution and in particular the rights guaranteed and protected by the Constitution.

This case reflects the situation where two (2) constitutional provisions are in conflict and cannot be harmonised. On that basis, I share and adopt the view that a broad and generous approach must be taken to interpreting Constitutional (fundamental) rights provisions, and restrictions must be strictly construed which means that:

"... when two constructions are possible, one restrictive of rights that may be claimed under it (Constitution) and the other favourable to them, the latter is to be preferred." [see Asakura v. City of Seattle, Judgment of the US Supreme Court, [1924] USSC 52; 265 US 332 (1924) at 342].[my emphasis]

The above proposition rests on the realisation that it is the Constitutional rights which are fundamental and have to be guaranteed and protected but not the restrictions generated by the exercise of unguided and wide discretionary powers.

It has to be understood that, for this Court to merely consider the particular action/decision of the President would be tantamount to treating the symptoms whilst allowing the underlying cause to persist. If the Court was to uphold such unguided and wide discretion given to the President under Art. 28(3) of the Constitution on the grounds that, in the particular case, the President acted within constitutional limits, it would be abrogating its duty under the Constitution to safeguard the essence of the constitutional rights provisions contained therein.

Nor is it the duty of the Court to uphold a decision/action granted on an unguided and wide discretion on the rational that the President must be assumed to act bona fide. How can the President be expected to do so within the limits of the Constitution if Article 28(3) of the Constitution is unclear in this regard? Any so-called wide discretionary power which, due to its imprecision, may have the effect of arbitrarily denying the free exercise of a constitutional right guaranteed under the Supreme Law of the land should be expunged from the Constitutional books.

In this case, it transpires from the document annexed to Hon. Sope’s Affidavit and marked "C" that the President determined as relevant the reasons given by the Prime Minister when exercising his discretion to dissolve Parliament without considering that a Motion of No Confidence in the Prime Minister was pending before Parliament for debate and it is the constitutional right of the members of Parliament to debate that Motion as provided under Art. 43(2) of the Constitution.

The test in determining whether the decision of the President to dissolve Parliament on 27 November, 1997 infringes the constitutional right of the Petitioners as Parliamentarians under Articles 43(2) of the Constitution, is to examine its effect but not its object or subject-matter. If the effect of the impugned decision/action is to abridge the Petitioners’ Constitutional rights, its object or subject matter will be irrelevant.

I am, therefore, of opinion that the effect of the decision of the President to dissolve Parliament on 27 November, 1997 is to hinder or preclude the Petitioners as members of Parliament from freely exercising their right to express an unfavourable opinion in the Government Leadership by a constitutionally provided procedure of Parliament, namely Motion of No Confidence under Art. 43(2). Whatever the object or subject-matter of the said Presidential decision may be, they are irrelevant.

Furthermore, the very effect of the Presidential decision of 27 November, 1997, while the Motion of No Confidence in the Prime Minister is already pending before the Parliament for debate and vote upon it, is to hinder and/or preclude the Petitioners as members of Parliament, to invoke the provision of the Constitution under Article 21(2) of the Constitution which reads:

"Parliament may meet in extraordinary session at the request of the majority of its members..." [see Civil Case No. 126 of 1996 in Re Willie Jimmy & Others v. Attorney General and Others on appeal, Attorney General and Others v. Willie Jimmy and Others, Appeal Case No. 7 of 1996].

The case of Barak Tame Sope & Others v. Attorney General and Others, Appeal Case No. 6 of 1988, is the authority for the proposition that the Members of Parliament cannot be precluded from expressing an unfavourable opinion or disapproval of the leadership of Government in the accepted constitutional Parliamentary procedure of a motion of no confidence, with the threat of a consequential loss of membership of Parliament just because by the very procedure available, they wish to manifest their intention to so move. Their Lordships, then held that:

"... the right of a Member of Parliament, namely to express himself freely in Parliament cannot be restricted... it is quite unconstitutional to so hinder such an expression of opinion with the threat of consequential loss of membership of Parliament." [Vanuatu Law Report, Vol. 1, 1980-88 at p.414].

On the basis of the above authority upon which I am bound, I am of opinion that, in this case, the Motion of No Confidence in the leader of the Government must not be precluded by a purported dissolution of Parliament by the President, for it is so essential for the proper functioning and execution of the processes of responsible Government in a Parliamentary Democratic System of Government such as the system of Government adopted by the Republic of Vanuatu since Independence of 1980.

It is, therefore, the incumbent constitutional duty of the judiciary, as guardians of the Constitution, not to allow unconstitutional practices to get a foot in the door. The whittling down of constitutional rights and freedoms is constitutionally impermissible.

In Oliver & Anor v. Buttigieg, an appeal to the Privy Council for Malta, their Lordships consider that:

"Where fundamental rights and freedoms are being considered a Court should be cautions before accepting the view that some particular disregard of them is of minimal account." [1967] A.C. 115 at 135-6 (Lord Morris).

In support of this principle, in the case of Barak Tame Sope & Others v. Attorney General & Others, Appeal Case No. 6 of 1988, their Lordships echoed the case of Thomas v. Collins where the US Supreme Court stated:

"The restraint is not small when it is considered what was restrained. The right is a national right, federal guaranteed. There is some modicum of freedom of thought, speech and assembly which all citizens of the Republic may exercise throughout its length and breath, which no State, nor all together, not the Nation itself, can prohibit, restraint or impede. If the restraint were smaller that it is, it is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when they are imposed on the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down the foundations of liberty." Thomas v. Collins, Judgment of the US Supreme Court, [1945] USSC 32; 323 US 516 (1945) at 543 [emphasis added] [see Vanuatu Law Report, Vol. 1, 1980-88 at 414].

A similar analogy was expressed by the Ghanaian Supreme Court:

"It is clear that the dictates of experience have compelled the Constitution makers to draw on the amplitude of our past history, to lay down structures which would arrest the slightest deviations from Constitutionalism. Manifestations that would have the potential of burgeoning intractable evils which would ultimately undermine the Constitution and toll the knell of the fourth brave democratic effort, must be placed under the judicial microscope. It is the Court’s Constitutional duty in upholding the fundamental law to strike down tendencies towards a one-party state or a dictatorship however minuscular the blot may first appear." New Patriotic Party v. Ghana Broadcasting Corporation, Judgment of the Supreme Court of Ghana, 30 November 1993, Writ No. 1/93 (unreported) at 13 (Francois DISC) [emphasis added], [cited from a report written by Joanna Steven's, a legal consultant, entitled: The Interpretation of fundamental rights Provisions (International & Regional Standards in African and Other Common Law Jurisdictions, October 1997).]

The case of Barak Tame Sope and Others of 1988 [Appeal No. 6 of 1988] is also authority for the Proposition that the electorate which voted the member into Parliament cannot be deprived of a political representative for desiring to exercise a fundamental right to expression of an opinion on the leadership of the Government so essential in the Democratic State Republic of Vanuatu.

It has to be observed that what makes freedom of expression an essential foundation of a democratic society is that the whole basis of a democracy rests on the notion of "government by the people" which, in turn, presupposes maximum political participation. In Manic Gandhi v. Union of India, Bhagwati, J. observed:

"Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic set up. If democracy means Government of the People by the People, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential." [1978] 2 SCR 621 at 696 (Bhagwati, J.). [emphasis added].

By echoing the opinion of Mr Justice Bhagwati (as he then was), I am of opinion that in the present case, if democracy means government of the people by the people, it is obvious that every citizen through their elected representatives in Parliament, must be entitled to participate in the democratic process through Article 43(2) of the Constitution to debate and vote upon the Motion of No Confidence in the Prime Minister as scheduled on 4 December, 1997. In this case, the purported dissolution of Parliament by the President of the Republic on 27 November, 1997 precluded the Petitioners as members of Parliament and as representatives of their respective people - electors/ citizens from exercising their constitutional rights under Article 43(2) of the Constitution.

In this case, the Affidavit evidence shows that there is a link between the decision to close Parliament by the Hon. Speaker on 27 November 1997 and the dissolution of Parliament by the President of the Republic on the same date.

In effect, it is not disputed that on 27 November 1997 the Speaker adjourned the Parliament Session to 2.00 p.m. that afternoon. (27 November 1997).

There was a Council of Ministers Meeting in the morning at about 10.00am o’clock.

The purpose of the Council of Ministers’ meeting is:

1) that the Government withdrew all Government Bills in the afternoon session of Parliament of 27 November 1997; and

2) that the Council of Ministers approved to request the President of the Republic to dissolve Parliament while a Motion of No Confidence is still pending before Parliament for debate and vote upon it as scheduled on 4 December, 1997.

I share and adopt the view that the onus of proving that the exercise of an unguided and wide discretionary power which constitutes a limit on a constitutional right guaranteed by the Constitution is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. The presumption is that rights (including freedoms) are guaranteed unless the party invoking Article 28(3) of the Constitution justify their being limited.

[See R. v. Oakes, Judgment of the Supreme Court of Canada, (1986) 26 D.L.R. (4th) 200 at 225-6 (Dickson, C.J.)].

As I have already mentioned, this Court has not the benefit of hearing or considering any evidence from the President of the Republic since there is no Affidavit from the President filed before this Court to that effect.

I am therefore, of the view that, even if the President has a discretion to dissolve Parliament, that discretion miscarried in that the President failed to take into account at least two considerations, namely:

i) the fact that there was outstanding business before the House, namely the Motion of No Confidence [see affidavit of Hon. Speaker of Parliament, Edward N. Natapei filed on 2 December, 1997 at paragraph 5; See also Affidavit of Hon. Maxime Carlot Korman MP].

ii) the fact that the absolute majority of members wished and continue to debate the Motion. [The evidence of this can be seen in the Affidavit of Hon. Maxime Carlot Korman MP, see also Document marked "D" annexed to the Affidavit of the Hon. Rialuth Serge Vohor, Prime Minister of the Republic and Document marked "C" annexed to the Affidavit of the Hon. Barak T. Sope, MP. There is a reasonable inference that His Excellency the President knew that the majority of members of Parliament wished and continue to debate the Motion. Further the silence of the President assists the Court in drawing that inference to that very effect].

On the basis of the above considerations, I hold the view that the purported dissolution of Parliament by the President dated 27 November 1997, is unconstitutional and null and void and of no effect and I so rule.

I accordingly, grant all the Declarations and/or Orders sought from 1 to 5 in the Constitutional Petition dated 29 November 1997.

DATED AT PORT-VILA, this 4th DAY OF DECEMBER, 1997

BY THE COURT

VINCENT LUNABEK J.
ACTING CHIEF JUSTICE

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