|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No. 59 of 2001
IN THE MATTER OF:
ARTICLES 6(1) AND (2) AND 53(1) AND (2) OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU
(hereinafter referred to as “the Constitution”)
AND IN THE MATTER OF:
SECTIONS 218 AND 219 OF THE
CRIMINAL PROCEDURE CODE ACT [CAP. 136],
as amended (hereinafter referred to as “the Act”)
BETWEEN:
Hon. NIPAKE EDWARD NATAPEI, Hon. SILAS HAKWA, Hon. REUBEN TITEK, Hon. RIALUTH SERGE VOHOR, Hon. JOE BORMAL CARLO, Hon. JACQUES SESE, Hon. CLEMENT LEO, Hon. WILLIE POSEN, Hon. DONALD K. MASIKEVANUA, Hon. HENRI TAGA, Hon. SELA MOLISA, Hon. JOSIAS MOLI, Hon. JOE NATUMAN, Hon. JEAN ALLAIN MAHE, Hon. ALLAN NAFUKI, Hon. KORA MAKI, Hon. WILSON RAY ARU, Hon. JIMMY IMBERT, Hon. SAM DAN AVOCK, Hon. JIMMY NIKLAM, Hon. PHILIP I. PASVU, Hon. JOHN MORSEN WILLIE, Hon. WILLIE O. VARASMAITE, Hon. DANIEL A. BANGTOR, Hon. GEORGE WELLS, Hon. RAKORM FOSTER, Hon. AMOS TITONGOA, care of Port-Vila, Efate, Republic of Vanuatu
Petitioners
AND:
Hon. PAUL REN TARI,
Member of Parliament for Maewo Constituency and Speaker of the Parliament of Vanuatu
First Respondent
AND:
Hon. IRENE BONGNAIM,
Member of Parliament for Ambrym Constituency and First Deputy Speaker of the Parliament of the Republic of Vanuatu
Second Respondent
AND:
Hon. HENRY IAUKOU,
Member of Parliament for Tanna Constituency and Second Deputy Speaker of Parliament of the Republic of Vanuatu
Third Respondent
Coram: Chief Justice Lunabek
Counsel: Mr. Silas Hakwa for the Petitioners
Mr. Kalkot Mataskelekele for the Respondents
Date of hearing: 8, 9, 10, 11 May, 2001
Date of decision: 12 May, 2001
Date of Publication of the Reasons for Judgment: 23 October 2001
RESERVED JUDGMENT
On 12 May 2001 at 11.30pm in the evening the Supreme Court makes the following Declarations and Orders:
ORDERS AND DECLARATIONS
1. Leave to apply for the Writs of Mandamus and Certiorari is granted.
2. A Declaration that the decision and/or ruling by the Respondent made on 7th May 2001 to dismiss and exclude the Petitioners from attending and taking part in the proceedings of the First Extra Ordinary Session is invalid, void and of no effect.
3. A Declaration that Parliament is still meeting in its First Extra Ordinary Session in 2001 and that the decision made by the Respondent on 7th May 2001 to close Parliament’s First Extra Ordinary Session in 2001 is invalid, void and of no effect.
4. An Order quashing the Respondent’s ruling to dismiss and exclude the Petitioners from taking part in the proceedings of the First Extra ordinary Session of Parliament.
5. An Order directing the Respondent to re-convene Parliament and place before the Parliament all matters required to be transacted by Parliament in its First Extra Ordinary Session of 2001 on Monday 14 May 2001 at 08.30am so that Parliament can debate and deal with the same in accordance with the Law and Standing Orders.
6. A Declaration that the purported Motion No. of 2001 seeking to suspend Honourable Nipake Edward Natapei, Honourable Rialuth Serge Vohor and Honourable Henri Taga amounts to a breach of the constitutional rights of those Petitioners and is therefore invalid, void and of no effect.
7. A Declaration that the purported Motion No. of 2001 seeking to suspend Petitioners amounts to a breach of the constitutional rights of those Petitioners and is therefore invalid, void and of no effect.
8. A Declaration that the purported calling or Summons for the Second Extra Ordinary Session of 2001 made by the First Respondent is invalid, void and of no effect.
9. Costs of and incidental to this Petition are awarded to the Petitioners and to be paid by the Respondents. Costs be taxed failing agreement.
REASONS FOR JUDGMENT
I now produce the reasons of the judgment and orders of 12 May 2001.
I - PETITION
This is a Constitutional Petition. On 8 May 2001, six (6) Members of Parliament (MPs), namely Hon. Nipake Edward Natapei, the Prime Minister of the Republic of Vanuatu, Hon. Rialuth Serge Vohor, Deputy Prime Minister, Hon. Silas Hakwa, Hon. Henri Taga, Hon. Josias Moli, Hon. Allen Nafuki, filed a Petition in the Supreme Court at Port-Vila, pursuant to the provisions of Articles 6(1) and (2) and 53(1) and (2) of the Constitution and Sections 218 and 219 of the Criminal Procedure Code Act [CAP.135]. For convenience sake the six (6) Petitioners will be called (“P1”).
On 9 May 2001, leave was granted to amend the Petition and include 21 new Petitioners and their statement of claim. They will be called (“P2”).
The Petition is brought against the decision and/or action of the Hon. Paul Ren Tari, Speaker of Parliament, as the first Respondent, Hon. Irené Bongnaim , First Deputy Speaker of Parliament as the Second Respondent and Hon. Henry Iaukou, Second Deputy Speaker of Parliament of the Republic of Vanuatu, as the Third Respondent.
The Petitioners (“P1”)come to this Court and complain that on 7 May 2001 when Parliament met in its First Extraordinary Session of 2001, the First Respondent took decision to suspend and exclude them from the First Extraordinary Session of Parliament. The Petitioners “P1” say that the action of the First Respondent infringes or is in breach of their constitutional rights as Members of Parliament. They say that the decision of the First Respondent to close the First Extraordinary Session of Parliament of 2001 is invalid and unlawful. They say the action of the First Respondent is in breach of their rights as Members of Parliament to attend and exercise their duties and responsibilities as Members of Parliament.
The Petitioners (“P2”) apply to this Court and say that the actions or certain actions of the Second and Third Respondents that they are now taking, is in breach or likely to infringe their constitutional rights as Members of Parliament.
II - RELIEF SOUGHT BY THE PETITIONERS
The Petitioners (P”1”) and (“P2”) claim for:
1. Leave to apply for the Writs of Mandamus and Certiorari.
2. A declaration that the decision and/or ruling by the Respondent made on 7th May 2001 to dismiss and exclude the Petitioners from attending and taking part in the proceedings of the First Extra Ordinary Session 2001 is invalid, void and of no effect.
3. A declaration that Parliament is still meeting in its First Extra Ordinary Session in 2001 and that the decision made by the Respondent on 7th May 2001 to close Parliament’s First Extra Ordinary Session in 2001 is invalid, void and of no effect.
4. Further and/or in the alternative, an Order quashing the Respondent’s ruling to dismiss and exclude the Petitioners from taking part in the proceedings of the First Extra Ordinary Session of Parliament.
5. Further and/or in the alternative an Order directing the Respondent forthwith to re-convene Parliament and place before the Parliament all matters required to be transacted by Parliament in its Firsts Extra Ordinary Session 2001 so that Parliament can debate and deal with the same in accordance with the Law and Standing Orders.
6. A direction that the purported Motion No. of 2001 seeking to suspend Honourable Nipake Edward Natapei, Honourable Rialuth Serge Vohor and Honourable Henri Taga amounts to a breach of the Constitutional rights of those Petitioners and is therefore invalid, void and of no effect.
7. A declaration that the purported Motion No. of 2001 seeking to suspend Petitioners amounts to a breach of the constitutional rights of those Petitioners and is therefore invalid, void and of no effect.
8. A declaration that the purported calling or Summons for the Second Extra Ordinary Session of 2001 made by the First Respondent is invalid, void and of no effect.
9. Any such other or further Orders as the Court shall deem fit.
10. Costs of and incidental to this Petition.
III - GROUNDS FOR PETITION
The grounds of the Amended Petition are as set out in the Petition filed on 9 May 2001. In essence, the Petitioners (“P1”) and (“P2”) grounded their Petition as follows:
A - The First Respondent has acted in breach of the Constitution-
(1) in purporting to restrict and/or limit the extent to which Members of Parliament lawfully elected to Parliament may lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu.
(2) in purporting to act in contravention of the provisions of paragraphs (d), (g) and (k) of sub-Article (1) of Article 5 of the Constitution;
(3) in failing to respect and have due regard to the provision of Article 7 of the Constitution;
(4) in purporting to act in contravention of the provisions of Article 21(2) of the Constitution;
(5) in purporting to act in contravention of the provisions of Article 22(2) of the Constitution;
(6) in purporting to act in contravention of the provisions of Article 27(1) of the Constitution;
(7) in purporting to permit Parliament to meet and continue to meet when Parliament was not quorate, such act and/or omission being in contravention of the provisions of Article 21(4) of the Constitution;
(8) in purporting to close the First Extra Ordinary Session for 2001 in contravention of the provisions of Article 21(2) of the Constitution; and
(9) in purporting to prevent Parliament from exercising its lawful and constitutional duty, function and/or responsibility.
B - The Second Respondent and Third Respondent have acted in breach of the Constitution.
(1) in purporting to restrict and/or limit the extent to which Members of Parliament may lawfully elected to Parliament may lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu;
(2) in purporting to act in contravention of the provisions of paragraphs (d), (g) and (k) of sub-Article (1) of Article 5 of the Constitution;
(3) in failing to respect and have due regard to the provision of Article 7 of the Constitution;
(4) in purporting to act in contravention of the provision of Article 17 of the Constitution;
(5) in purporting to act in contravention of the provisions of Article 22(2) of the Constitution;
(6) in purporting to act in contravention of the provisions of Article 27(1) of the Constitution.
The Petition is supported by the Affidavits of the following deponents:
- Nipake Edward Natapei, Prime Minister of the Republic of Vanuatu, sworn and filed on 7 May 2001;
- Rialuth Vohor Serge, Deputy Prime Minister of the Republic of Vanuatu sworn and filed on 7 May 2001;
- Jacques Sese sworn and filed on 9 May 2001;
- Josias Moli sworn and filed on 9 May 2001.
IV - RESPONSE TO THE PETITION
A - The First Respondent replies as follows to each of the claims outlined:
1. The First Respondent denies breaching the Constitution because the business of Parliament, and order in Parliament is regulated by the Standing Orders of Parliament which is regulated by the Respondent permit him to discipline Members of Parliament.
2. The First Respondent may discipline Members of Parliament under Standing Orders which are part of laws of Parliament and Vanuatu. The First Respondent gave sufficient opportunity for Members of Parliament who walked out of the Chambers to return but they did not do so. Suspended Member of Parliament are not counted as Members in estimating the quorum of a sitting, therefore there was a quorum present.
3. The First Respondent did not breach Art. 21(2) of the Constitution. The First Respondent replies that he closed the Session because there was no one on the right side of the house to introduce the any of the business which was on the agenda.
4. The First Respondent did not prevent Parliament from exercising its lawful and constitutional duty. The First Respondent replies that Parliament could not exercise its duty because some Members of Parliament on the right side of the House walked out of the chambers when they should not have walked out.
5. The First Respondent did not know that six Members of Parliament had petitioned the Supreme Court in Civil Case No.59 of 2001 before he authorised the Notice for the Second Extra Ordinary Session.
B - The Second and Third Respondents reply to the Petitioners’ claim as follows:
1. They lodged their motions to the Parliament Secretariat on Monday 7th May 2001 at 15.20hrs and were not aware that six Members of Parliament had petitioned the Supreme Court.
2. The motions are in accordance with the Standing Orders of the Parliament, and the Standing Orders of Parliament are made in accordance with the Constitution and Laws of Vanuatu.
3. The Second and Third Respondent reply that their motions are in accordance with Standing Order of Parliament.
4. The Second and Third Respondents say that their motions are in accordance with the Standing Orders of Parliament and Constitution. They say that they motions will be freely debated in Parliament by all Members of Parliament who are able to attend the sitting.
5. They reply that the motions they have proposed are in accordance with Standing Orders of Parliament which are made in accordance with the Constitution.
C - In substance the Respondents say that:
1. In accordance with the principle of separation of powers the Court should not interfere with the business of and running of the Parliament.
2. The Constitution of the Republic of Vanuatu provides for separation of powers between the legislature, the Executive and the Judiciary for example:
(a) Article 41 provides that Parliament is sovereign;
(b) Article 16(1) provides that Parliament may make laws for the peace order and good Government of Vanuatu;
(c) Article 41 provides that Parliament shall elect the Prime Minister, the head of the Executive;
(d) Article 47(1) provides that the function of the Judiciary is to resolve proceedings according to law;
(e) Article 27(1) provides that no Members of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given of oaths cast by him in Parliament in the exercise of his office;
(f) Article 27(2) provides that no Member may be arrested or prosecuted for any offence during a session of Parliament except with the authorisation of the Parliament in exceptional circumstances.
The Respondents filed affidavits of the following deponents in support of their claim:
- Paul Ren Tari, Speaker of Parliament of the Republic of Vanuatu, sworn and filed on 9 May 2001;
- Irené Bongnaim, First Deputy Speaker of Parliament, sworn and filed on 10 May 2001;
- Henri Iauko, Second Deputy Speaker of Parliament, sworn and filed on 10 May 2001.
V - ISSUES
Issues for Petitioners
1) Does the First Respondent have the power to suspend and exclude six (6) Petitioners from proceedings of Parliament either for a Session or a Meeting?
2) If the answer to question 1 is yes, in what circumstances does the Constitution permit him (R1) to exercise such power?
3) Did the R1 comply in all respects with the Standing Orders of Parliament in relation to the six (6) Petitioners?
4) If the answer to question 3 is no, then does such failure amount to, or can be taken to be or (as representing) a breach of the Constitutional Rights of the six (6) Petitioners as Members of Parliament?
(a) Right to attend the First Extraordinary Session of Parliament of year 2001;
(b) Right to take part in the proceedings of Parliament;
(c) Right to except and afforded protection of the law;
(d) Right to a fair hearing before any disciplinary action is taken against any of the six (6) Petitioners.
5) At what point of the proceedings on 7/5/01 was Parliament quorate?
6) At what point of the proceedings, the Parliament on the 7 May 2001 was not quorate?
7) Can R1 close the First Extraordinary Session 2001 when Parliament still has business attending?
8) Can the R1 close Parliament when Parliament was not quorate?
9) Can the R2 and R3 place before Parliament the motions 1 and 2 and in the circumstances given?
10) Can the R1 call a Second Extraordinary Session of Parliament and list therein, an opposition motion for a vote of No-Confidence in the Prime Minister?
Issues for Respondents
1) Suspension of the Petitioners.
(a) Can the Speaker suspend Members of Parliament from Parliament and how?
(b) Can such suspensions be challenged? How?
(c) Does the suspension amount to breach of Constitution? How it breaches the Constitution?
2) Issue of Extraordinary Session of Parliament 2001.
(a) Was it properly convened?
(b) Was it properly closed?
If yes – why and how?
If not – why not?
3) Quashing of suspension by the Courts.
(a) Can the Courts/the Judiciary intervene to quash the R1’s ruling to suspend?
If yes – Why and how?
If not - Why not?
4) Can the Courts/the Judiciary intervene to direct Parliament to convene or to reconvene a sitting, meeting or session of the House?
If yes – Why and how?
If not – Why not?
5) Motion No.1.
(a) Can the R1 suspend twenty-seven (27) Members of Parliament?
(b) If answer is yes – can such suspensions be challenged?
(c) Do such proposed suspensions amount to a breach of Constitution?
6) Motion No.2. (same question as to 5).
7) Can the Courts/the Judiciary intervene to cancel or invalidate the calling of a Session of Parliament which has been constitutionally and properly summoned?
If yes – Why and how?
If not - Why not?
VI - SEQUENCE OF EVENTS
On 27 April 2001, the First Respondent, Hon. Paul Ren Tari, Speaker of Parliament of the Republic of Vanuatu, summoned the Parliament to meet in its 2001 First Extra Ordinary Session commencing on Thursday, 3 May 2001 at 8.30am o’clock in the morning. On the same date (3 May 2001) the Clerk of Parliament issued the Notice of the said First Extra Ordinary Session of 2001 as summoned by the First Respondent to all Members of Parliament.
This was done at the request of the Government for the First Respondent Speaker to convene the First Extra Ordinary Session of Parliament of 2001 so that the Government could place before Parliament seven (7) Government Bills and four (4) Motions.
At 08.30hrs on Thursday, 3rd May 2001, the Petitioners together with 21 Members of Parliament supporting the Government of the day attended the Parliament as summoned. The Respondent advised that the sitting on that day could not proceed because there was no quorum. Only four Members of Parliament representing the Opposition were present, and the rest boycotted the Sitting. The Respondent adjourned parliament to 08.30hrs on Monday, 7th May 2001.
The current total membership of parliament is 52. The Government is supported by 27 Members of Parliament while the Opposition consists of 24 Members of Parliament.
At its Sitting on Monday, 7th May 2001, the Government side had 27 Members on its benches and the Opposition has 24 Members on its benches. The First Respondent declared that there was a quorum. He then proceeded to ask Honourable Jimmy Nicklam to open the Sitting with a word of Prayer. After the Prayer the First Respondent then asked that Honourable Leo Tamata and Honourable Litoung Aniseto to sign the Roll of Members of Parliament, which they did.
After the two Members had signed the Roll of Members the First Respondent proceeded to read from a prepared statement or document and he said words to this effect-
“Follem Standing Order 40(1) mi, mi kolem attention blong Palimen ikam long kondakt blong sam Memba blong Honorabol Haus ia. Long Fes Ordineri Sesson blong Palimen long yia 2001 sam Memba blong Palimen oli yusum Konstitusonal raets blong olgeta blong spolem independence mo separesen of paos blong tis Honorabol Haus ia. Oli mekem Judiciary ikam diktaetem Palimen ia tru long Kot Odas. Ol Membas ia tu oli mekem se Suprim Kot i tretenem mi olsem Spika blong go long Kalabus. Oli mekem se ino gat respekt long Atikol 27 long Konstitusen we i protektem privileges mo imiunitis blong Honorabol Haus ia mo ol Membas blong hem. Long sem sam aitom blong tisfala Extra Ordineri Sesson ia semfala Membas ia oli fosem bakegen exsekiutif paoa ikam insaed long Honorabol Haus ia blong rulum mo spolem bakegen. Long lukluk blong mi olsem Spika evri Memba blong Palimen ia kat konstitusonal mo ol narafala raets we ol loas blong Vanuatu oli kivim long yumi wan wan. Mi tu olsem Spika mi kat ol konstitusonal mo ligol raets ia mo paoa insaed long Honorabol Haus ia. Folem Atikol 21(5) blong Konstituson blong Ripablik blong Vanuatu we hemi talem se “Parliament shall make its own rules of procedure.” Mi wandem rimaendem Honorabol Haus ia se ruls mo prosidias hemi Standing Ordas blong Palimen. Mi wandem rimaendem evri Memba blong Honorabol Haus tu se folem Standing Oda 55 Standing Oda blong Palimen hemi bikam loa blong kantri long Namba 1 january 1982. Olsem Spika mi wandem talem se eni man we ino folem Standing Odas hemi brekem loa blong Palimen mo loa blong kantri. Folem Atikol 22(2) long Konstituson hemi givim paoa blong Spika blong Palimen blong maintenem oda insaed long Honorabol Haus ia, Folem tu Standing Oda 40 blong Palimen we hemi tokabaot Oda long Honorabol Haus ia samfala Membas blong Palimen oli bin guilty long disorderly kondakts. Samfala oli yusum objectional words we oli refuse blong withdrawen. Sam long olgeta Honorabol Membas ia oli refuse blong folem Standing Odas. Sam long olgeta Membas ia oli kontiniu blong disregadem otoriti blong Spika. Folem interpretesen blong mi long Konstitutsen mo Standing Odas olsem wan loa mi honesly bilif se olgeta Honorabol Membas ia oli brekem Mama Loa blong Palimen blong Ripablik blong Vanuatu. Therefore, mi rul se Honorabol Alen Nafuki, MP blong Saoten Aota Aelans mo Honorabol Josias Moli, MP blong Malo i guilty blong disorderly kondakt long presens blong Palimen. Mi rul tu se Honorabol Silas Hakwa, MP blong Ambae, Honorabol Edward Natapei, MP blong Port-Vila, Honorabol Serge Vohor, MP blong Santo mo Honorabol Henri Taga, MP blong Port-Vila, oli guilty long Section 40(2)(c) (d) mo (e) blong Standing Odas. Mi bilif se kondakt blong Honorabol Membas ia long First Ordinary Session blong Paliment oli brekem Standing Odas blong Honorabol Haus. Mi nao mi rul tu se folem Standing Oda 40(e) se evri Honorabol Membas ia oli withdraw immediately from Palimen mo presence blong Palimen ia long remainder blong sitting mo miting ia. Plis Membas yufala i muv aot long Haus ia naoia. Stanading Odas 10(1) I kivim long mi ful paoa blong yusum polis blong rimuvum yufala long Honorabol Haus ia sipos yufala i refuse blong folem ruling blong mi. Mi wandem wonem evri Memba blong Palimen se Standin Oda 45 hemi kivim long yufala rot blong jalenjem disisen blong mi. Evri Honorabol Memba we ino folem Standing Oda 45, bae i folem sem rod we olgeta narafala I jes folem.”
The First Respondent, then, suspended six (6) Members of Parliament on the Government side, namely: Hon. Nipake Edward Natapei, Prime Minister of the Republic of Vanuatu, Hon. Rialuth Serge Vohor, Deputy Prime Minister, Hon. Silas Hakwa, Hon. Henri Taga, Hon. Josias Moli, Hon. Allen Nafuki.
Following the First Respondent’s statement the six (6) Petitioners together with the other 20 Members of parliament supporting the Government left the Chambers of Parliament, living behind Honourable Willie Oli Varasmaite, Minister of CRP to observe any proceedings thereafter in Parliament.
The First Respondent, then, adjourned Parliament for 5 minutes. After the short adjournment, Parliament reconvened and the First Respondent then said:
“Seeing yumi no kat quorum naoia afta we yumi saspend long faev (5) minits bambae yumi no kat nara wei blong ko. Mi wandem blong talem nao se First Extra Ordinary Session bae hemi klos mo bambae Spika hemi mekem narafala koling blong Second Ordinary Session we bae istat tumoro. Second Ordinary Session we hopfuli each and evri Membas bae I risivem notis blong olgeta stating long tumoro.”
After this the First Respondent proceeded to close the First Extra Ordinary Session of Parliament for 2001.
On 7 May 2001, the First Respondent summoned Parliament to meet in its 2001 Second Extra Ordinary Session commencing on Tuesday, 15 May 2001 at 8.30 hours.
On 7 May 2001, at about 17.45pm hours, the six (6) Petitioners (“P1”) file a Constitutional Petition in the Supreme Court with a Summons seeking leave for time to be abridged and prerogative relief. An affidavit as to urgency is filed by counsel in support.
The matter was then listed for hearing on 8 May 2001 at 14.00pm hours.
On 8 May 2001, at 10.45am o’clock the First Respondent refused that the Petition, Summons and supporting documents all dated 7 May 2001 be served on him personally. He then requested the service of the documents to be effectuated on his counsel. The documents were served on his counsel at about 10.50am on the same date.
On 8 May 2001, the Court began to hear the Summons accompanying the Petition at 14.00pm.
On 8 May 2001, the Clerk of Parliament, by Notice, advised the Petitioners (“P1”) that Parliament would meet in its Second Extra Ordinary Session for 2001 on Tuesday, 15 May 2001at 8.30am to consider the following matters.
“…
List of matters
1. Motion to debate and decide on Constitutional breaches of Article 22(2) of the Constitution and Standing Orders of Parliament.
2. Motion to debate and decide on Constitutional breaches of Article 27(1) and (2) of the Constitution and Standing Orders 40.
3. Motion of No Confidence against the Prime Minister Hon. Edward Natapei.
4. Election of a New Prime Minister.
…”
On 9 May 2001, the Court issued Orders, inter alia, that leave for time abridged is granted and that pending the final determination of the matter in Civil Case No.59 of 2001, the Respondent/Speaker of Parliament, his Agent or any Police Officer be restrained from restricting or in any way preventing the Petitioners from taking their seat as Members of Parliament. And further that at this stage of the proceedings, the other relief sought by the Petitioners (“P1”) cannot be granted. The reason being that because of the seriousness of the matters and Constitutional importance of the issues involved, the Court need to fully enquire into the matter as a matter of urgency. In accordance with the Constitution (Articles 6(1); (2); 7(c) 16(4); 17; 21; 22 and 53(1),(2) the Supreme Court has jurisdiction to so enquire. Further Standing Orders 34(2) of Parliament provides that:
“a question shall not refer to any matter which a judicial decision is pending or reflect on the decision of a Court of law” and this includes written motion in accordance with Standing Order 35(3).
On 9 May 2001, the Petitioners’ counsel informed the Court, among other matters, that there are new events/developments which can affect the proceedings in the case and as such the Constitutional rights of the Petitioners are being or are likely to be infringed without the Supreme Court’s intervention in accordance with the Constitution.
In effect, the Petitioners’ counsel informed the Court, firstly, that on 7 May 2001, the Hon. Iréné Bongnaim, the First Deputy Speaker and the Hon. Henry Iauko, the Second Deputy Speaker signed a motion. The said motion No. of 2001 (“Motion 1”) is calling for Parliament to suspend the six (6) Petitioners and twenty one (21) Members of Parliament on Government side, which are in total 27 Members of Parliament from attending three (3) Extra Ordinary Sessions and two(2) Ordinary Sessions of Parliament. Secondly, that on 7 May 2001, the Hon. Iréné Bongnaim, the First Deputy Speaker and the Hon. Henry Iauko, the Second Deputy Speaker signed a Motion. The said Motion No. of 2001 (“Motion 2”) is calling for Parliament to suspend Hon. Edward Nipakei Natapei, Hon. Rialuth Serge Vohor and Hon. Henri Taga for three (3) Extra Ordinary Sessions of Parliament and two (2) Ordinary Sessions of Parliament.
On 9 May 2001, upon application and with leave of the Court, the Constitutional Petition is amended to include additional 21 Members of Parliament on Government side, as Petitioners, with the six (6) Petitioners. Further, Hon. Iréné Bongnaim, the First Deputy Speaker and Hon. Henry Iauko, the Second Deputy Speaker are joined as Second and Third Respondents respectively in Civil Case No.59 of 2001. Further directions were issued for the proper management of the proceedings before the Court.
VII - EVIDENCE
The evidence is adduced by affidavit materials. The Petitioners file four (4) affidavits in support of the Petition which are respectively:
§ A sworn affidavit of Nipake Edward Natapei, Prime Minister of the Republic of Vanuatu, filed on 7 May 2001 and Exhibited (“P1A”);
§ A sworn affidavit of Rialuth Serge Vohor, Deputy Prime Minister of the Republic of Vanuatu, filed on 7 May and Exhibited (“P1B”);
§ A sworn affidavit of Jacques Sese, filed on 9 May 2001 and Exhibited (“P2A”);
§ A sworn affidavit of Josias Moli, filed on 9 May 2001 and Exhibited (“P2B”).
The Respondents file three (3) affidavits in response which are respectively:
§ A sworn affidavit of Paul Ren Tari, Speaker of Parliament of the Republic of Vanuatu, filed on 9 May 2001 and Exhibited (“R1A”);
§ A sworn affidavit of Iréné Bongnaim, First Deputy Speaker of Parliament, filed on 10 May 2001 and Exhibited(“R2A”);
§ A sworn affidavit of Henri Iauko, Second Deputy Speaker of Parliament, filed on 10 May 2001 and Exhibited (“R2B”).
Each and all deponents of the affidavits are subject to cross-examination by the other side. In this case, not all deponents are cross-examined on their affidavit. Only the Hon. Edward Nipakei Natapei, Prime Minister of the Republic of Vanuatu and Hon. Paul Ren Tari, Speaker of Parliament of the Republic of Vanuatu, the First Respondent are cross-examined on their affidavits. What follows is the summary of their oral evidence.
ORAL EVIDENCE OF THE PETITIONER HON. EDWARD NATAPEI, PRIME MINISTER
Petitioner Edward Natapei gave evidence to the effect that he filed a sworn affidavit on 7 May 2001 and that the content of his affidavit is true. He was then cross-examined. His evidence is to the effect that during the Session of Parliament of 7 May 2001, he did not say anything or any word before the Speaker suspended him. He repeated and confirmed that on that particular time when the Speaker suspended him and the five (5) others, none of them said a word or made any comment.
He says the Standing Orders of Parliament apply inside Parliament. He reads Orders 40 and says it covers action/conduct of a Member in Parliament. The authority of the Speaker is to be used inside Parliament when a Member of Parliament wilfully did not listen to the Speaker in Parliament. If so, then, the Speaker has power to act.
He was then asked if the Speaker can take a decision inside the Chambers of Parliament on an action of a Member slapping the Speaker outside Parliament. The witness answered that in such situation, the redress be sought before the Court of law.
He confirmed that he was a Speaker of Parliament from 1996 to 1999. A Speaker can suspend a Member of Parliament provided the Speaker do so under Order 40 of Standing Orders of Parliament.
He says that from his experience, a suspended Member of Parliament is still a Member of Parliament. Whilst the Speaker counts the number of Members of Parliament in Parliament, the Speaker will still count the suspended Members. He said that after the First Respondent suspended six (6) Members of Parliament, they walked out of Parliament Chambers with 21 other Government Members of Parliament. MP Varasmaite, Minister of CRP remained in Parliament and raised to the attention of the Speaker the question of quorum.
He also gave evidence that he did not ask Members of Parliament on the Government side who walked out from Parliament after the suspension of six (6) Members to go back inside Parliament. He says he wrote to the Speaker, the First Respondent, indicating to him before the Parliament Session that Hon. Josias Moli is the Leader of Government Business in Parliament.
ORAL EVIDENCE OF THE FIRST RESPONDENT, HON. PAUL REN TARI, SPEAKER OF PARLIAMENT
The First Respondent, Paul Ren Tari, gave evidence that he filed a sworn affidavit on 8 May 2001 and the content is true to the best of his recollection and belief.
He also confirmed that the tape recording which he has an opportunity to listen to is the true record of what happened in Parliament on 7 May 2001. He was then, cross-examined. He confirmed that as Speaker of Parliament, he understands the Standing Orders of Parliament.
He confirmed he disciplined six (6) Members: Silas Hakwa, Edward Natapei, Serge Vohor, Henri Taga, Allan Nafuki, Josias Moli. He was asked:
Question: You said: “…must be disciplined according to Standing Orders”.
Which Standing Orders you refer to?
Answer: … (No answer).
Question (repeated).
Answer: Hemi wan practice, we sipos mi no glad long wan something yumi kam back long Standing Order.
Sipos Standing Orders refer long Order 35 hemi written motion.
[It is a practice that if I am not happy about something, we come back to Standing Orders. If Standing Orders refer to Order 35 on Written Motion].
Question: Which judgment or Court Orders you refer to (in his statement of 7 May 2001).
Answer: Hemi wan feeling during last time. I gat tumas judgment or orders we oli putum against mi long this house. I gat samfala dictation i kam outside. From hemia, mi biliv i happen last time, hemia i stap long ples ia.
[This was a feeling during last time. There were too many judgments or Orders issued by the Court against me. There was dictation from outside. That is what I believed it happened last time. That was it.]
He confirmed he made reference to judgment in Civil Case No.35 of 2001, the situations surrounding the events of 7 May 2001 and a Motion to oust him as Speaker of Parliament and to suspend him as a Member of Parliament for 7 months. He said he made also reference to the Warrant of Arrest and his immunity. He confirmed the Supreme Court made Orders against him. He lodged an appeal. The Court of Appeal dismissed his appeal and suggested he filed a Constitutional Petition seeking redress.
He said he could not agree that on 7 May 2001 he decided to suspend six (6) Members of Parliament. He said he was not cross. As he said: “This is the only chance. I was under threat. That is the only chance.”
He was, then asked:
Question: You tekem out olgeta because olgeta apply long Supreme Court. [You suspended them because they petitioned the Supreme Court?].
Answer: No. Ino hemia nomo, hemi wan something we I base long immunity. Oli no should go long Court every time. Hemia ino wan practice because Standing Orders provided if you no happy long decision blong Speaker, you challengem by motion.
[No. It is not only that. This is something with immunity. They should not always go to the Courts. This is not a practice because Standing Orders provide that if you are not happy about a decision of the Speaker, then challenge it by motion.]
He also said he was not happy because there were too many Court rulings against him and the work of Parliament. Order 40 of the Standing Orders of Parliament gives the power to the Speaker to call attention of the House. This is the case when the Speaker disciplines Members of Parliament.
He was then asked:
Question: “Go to Standing Orders… Order 40. As Speaker, you now you gat responsibility blong applaem rules blong Palemen. Go to Order 40 – Wanem Section you disciplinim olgeta 6 Petitioners long hem. [Go to Standing Orders… Order 40. As Speaker, you have the responsibility to apply the rules of Parliament. Go to Order 40 - which Section you did apply to discipline the 6 Petitioners?]
Answer: Order 40(2), (c), (e).
He further gave evidence to the effect that before he read the statement which is in his affidavit (Annexure 4), he did not give an opportunity to the six (6) Petitioners to respond because this is the only chance he had as from Civil Case No.35 of 2001. The chance to discipline the Members of Parliament.
He was further asked:
Question: Did the six Petitioners make anything wrong on Monday 7 May 2001?
Answer: Long taem ia, olsem mi talem something i happen outside.
[At that time, as I said, something happened outside].
Question: On Monday 7 May 2001, after the opening prayer, did any of the six (6) Petitioners make anything wrong?
Answer: Long taem ia mi refer nomo long something we i happen.
[At that time, I refer only to what happened.]
Question: On Monday 7 May 2001, after opening prayer, any six (6) Petitioners jumped and wanted to fight.
Answer: My Lord, No-No.
Question: Look at page 1 blong Annexure 4 – affidavit blong you. Long paragraph 1 we istat olsem:
“Follem Standing Orders 40(1)… Kalabus”. Mi putum long you se reason why you suspendem six (6) Petitioners hemi from olgeta I kam long Court, oli obtenem Court Orders mo enforcem againsem you. You no wantem hemia. Hemia hemi wan fair assessment?
[Look at page 1 of the Annexure 4 of your affidavit. In paragraph 1 from: “In accordance with Standing Orders 40(1)… (to)… prison”.
I put to you that the reason why you suspend the 6 Petitioners is because they petitioned the Supreme Court, they obtained Court Orders and enforced them against you. You did not like that. Is that a fair assessment?]
Answer: Mi base long First Ordinary Session blong 2001. Long taem ia immunity blong mi i broke. Warrant of arrest i follem mi igo inside long Chambers. This is the only chance. Mi mas talem sorry because hemi because some MPs oli invitem.
[I rely on the First Ordinary Session of 2001. At that time my immunity was broken. The Warrant of Arrest followed me inside the Chambers. This is the only chance. I must apologise because it is at the invitation of some MPs.]
Question: You recall long 13 April 2001, you purgem wan Contempt of Court.
[You recall on 13 April 2001, you have purged a Contempt of Court.]
Answer: Yes.
Question: You undertake blong reconvene Parliament? [You undertake to reconvene Parliament].
Answer: Yes.
Question: You no agree wetem process?
[You do not agree with the process, do you?]
Answer: Long 7 May 2001, i gat wan Motion too blong sakem mi out.
[On 7 May 2001, there is also a Motion to oust me from Parliament.]
Question: Why you no come long Court?
[Why you did not come to Court?]
Answer: Hemia no fasin blong mi. Fasin blong mi i blong go back long Parliament mo challengem by Standing Orders.
[This is not my way. My way is to go back to Parliament and challenge it by Standing Orders].
The First Respondent gave also evidence to the effect that his decisions as contained in Annexure 4 of his affidavit, was made on 3 May 2001 and executed on 7 May 2001 because on 3 May 2001, there was a boycott by some Members of Parliament and there was no quorum.
He was then asked:
Question: Long end blong toktok (in Annexure 4) at page 5 – you say:
“Mi believe se conduct blong ol Honourable Members ia long First Ordinary Session blong Parliament oli brekem Standing Orders blong Honourable House ia.”
So conduct hemi conduct long First Ordinary Session?
[At the end of your statement at page 5 of Annexure 4 – your say:
“I believe that the conduct of the Honourable Members in the First Ordinary Session of Parliament breach the Standing Orders of this Honourable House.”]
So the conduct referred to is the conduct during the First Ordinary Session?]
Answer: Yes conduct long First Ordinary Session wetem Second Ordinary Session.
[Yes. Conduct on First Ordinary Session and that of the Second Ordinary Session.]
The First Respondent gave evidence that in his affidavit he used the word “sitting ia” but he could not remember if he had used the word “sitting ia mo meeting ia”.
As to the quorum, the First Respondent says that on 7 May 2001 there was quorum. The total number of Members of Parliament is 52. After 6 Members of Parliament were disciplined, 26 MPs walked out and 26 MPs remained in Parliament. This included Hon. Willie Varasmaite, Minister of CRP.
After Hon. Willie Varasmaite left Parliament Chambers, 25 MPs from the Opposition remained in Parliament (including the Speaker).
The First Respondent’s evidence is that after Willie Varasmaite left, there was no quorum. He suspended the Parliament for 5 minutes to allow the 21 non-suspended Members of Parliament to re-enter Parliament Chambers.
After the adjournment of 5 minutes, he said 25 MPs went back in Parliament and there was no quorum. He further admitted that Parliament cannot deal with any business if there is no quorum. He emphasised that it is not possible.
He said the reason why he closed the First Extraordinary Session of Parliament was because there was no MP on the Government side to introduce the Government business. And he did not receive a letter from the Government appointing the Leader of Government Business in Parliament.
He confirmed that he summoned the Parliament in the First Extraordinary Session of Parliament at the request of the Prime Minister.
He said that, although Government has 11 matters to deal with in Parliament, he had given opportunity by adjourning Parliament for 5 minutes for the non-suspended Members to come back inside Parliament.
He also testified that on 7 May 2001 after he closed the First Extraordinary Session, he called for a Second Extraordinary Session, although there is no business yet on the agenda for Parliament. On 8 May 2001 he summoned Parliament for the Second Extraordinary Session to deal with disciplinary matters, a motion to sack the Prime Minister and the election of a New Prime Minister. He said his intention with the Second and Third Respondents is to have two (2) motions only.
He was asked whether it is right for him as Speaker to call a Parliament Session for the Opposition to put a motion against the Government. He said he was asked to include the said motion in the agenda.
As Speaker of Parliament, he said based on advice he received, it was right for him to do so. As to whether his action will affect the independence and credibility of the Speaker, he said “mi no save” [I do not know].
He further gave evidence that all Members of Parliament have equal rights, irrespective of whether they are Ministers. He also said that it is alright for Parliament to exclude 27 Members of Parliament for 3 Extraordinary Sessions and 2 Ordinary Sessions of Parliament unless the Motion is amended.
He believed that the Court must not interfere. As to the motion to sack him as Speaker, he received advice that he could come to the Court.
He confirmed lastly that before he closed the First Extraordinary Session of Parliament, he had received advice from the Second and Third Respondents, Hon. Willie Jimmy, Hon. Sato Kilman and the Clerk of Parliament.
Under re-examination, he confirmed there was a motion to sack him as Speaker [Annexure I of the Affidavit of Hon. Irene Bongnaim]. He said that on the Second Extraordinary Session of Parliament 52 MPs have the right to attend because he as Speaker summonsed them to attend Parliament.
He further confirmed that during the 5 minutes break, he and the 2 Deputy Speakers, outside Parliament, mentioned that there was no quorum and he said the Clerk advised him further that there is no Government Leader to introduce the Government business in Parliament so he closed the First Extraordinary Session of Parliament.
VIII - DISCUSSION ON EVIDENCE: CREDIBILITY AND FINDINGS OF FACTS
There is not much dispute in relation to facts between the parties in this case. The matters of common ground between the parties are taken as such and there is no need for me to elaborate further. I will discuss on factual matters of dispute between the parties as they transpire from the evidence (oral and written material). It is clear from the evidence that before the First Respondent/Speaker ordered the six (6) Petitioners, to withdraw immediately from Parliament and its precincts, he made a statement as contained in the Affidavit of Edward Natapei (paragraph 10). This is accepted as such. In his oral evidence, the First Respondent could not remember whether in his statement, he used the expression “sitting mo meeting ia”. The Defendant also accepted that the tape recording is the true record of his statement in Parliament on 7 May 2001. The evidence of witness Natapei on that point is to be preferred. The order of the Speaker for the 6 Petitioners to withdraw themselves immediately from Parliament and its precincts for the remainder of this sitting and meeting of Parliament, amounts to a de facto suspension of the 6 Petitioners by the Speaker on 7 May 2001. It is also accepted that the Speaker convened Parliament at the request of the Government via the Prime Minister. Witness Natapei testified to this effect and that he had informed the Speaker about the Leader of the Government business in Parliament, namely Josias Moli who is one of the six (6) suspended Petitioners. This is consistent with the fact that MP Willie Varasmaite was the only Government MP in Parliament after the suspension of the six (6) Petitioners and 20 other Members of Parliament. As the evidence shows, the purpose for him to stay after the suspension is to draw the attention of the First Respondent, Speaker, to the issue of quorum and also to inform the First Respondent, Speaker, that the Leader of the Government business in Parliament is MP Josias Moli, who is one of the six (6) suspended Member of Parliament on 7 May 2001. The evidence of the First Respondent that he did not know who is the Leader of Government business in Parliament is rejected to this effect.
It follows then, as the evidence established that on 7 May 2001,52 Members of Parliament are from the Government side and 24 Members of Parliament are from the opposition side of Parliament Benches and Speaker. Parliament was quarated. After the First Respondent read a statement, then, he suspended the six (6) MP Petitioners. Twenty (20) MPs on the Government side walked out of Parliament Chambers. MP Willie Varasmaite stayed in Parliament wit 24 Members of Parliament on the Opposition of the Parliament Benches and the First Respondent/Speaker. So after the suspension, 26 Members of Parliament stayed in Parliament. MP Varasmaite questioned the Speaker about the quorum. The Speaker, then, sought advice from the Clerk of Parliament and other Members of Parliament who were present, namely MP Sato Kilman, Willie Jimmy. After 5 minutes adjournment, Parliament resumes and the Members present are 25 including the Speaker. MP Varasmaite has, then, left after the adjournment.
The First Respondent, closed the First Extraordinary Session of Parliament of 2001. The First Respondent/Speaker admitted that, when he closed the First Extraordinary Session of Parliament, there is no quorum. The quorum is half plus are 52:2 = 26 + 1 = 27 Members of Parliament. He admitted further, that no Parliament business should have been conducted. However, he closed the said Parliament Session because there is no Member of Parliament on the Government side to deal with Government business before the Parliament. The last part of the First Respondent’s evidence is rejected on the basis that this is not consistent with his admission that there is no quorum and that no Parliament business should have been conducted.
The evidence of Natapei established that on 7 May 2001, none of the six (6) Petitioners said anything. None of them did anything wrong. None of the 6 Petitioners disturbed the Parliament proceedings or disobeyed the order of the Speaker in Parliament. This is not disputed by the Respondents. The evidence of the witness First Respondent (Speaker) confirmed this by his own admission to this effect. Although the evidence of the First Respondent seems also to take into account of events occurring on 7 May 2001, it is difficult to so find for there is no evidence to support the evidence of the First Respondent on that point.
Further the evidence of the First Respondent shows that the First Respondent based himself on the events of the First Ordinary Session of Parliament of 2001 which culminated to Constitutional Case No.35 of 2001 against him. The First Respondent admitted to this effect. He was subjected to a Contempt of Court Order. He purged his Contempt and undertook to reconvene Parliament. He then did so. He was not happy about this.
It is clear from the evidence that he was not happy that the six (6) Petitioners filed a Constitutional Petition seeking for redress before the Supreme Court in re Civil Case No.35 of 2001. He admitted he filed an appeal before the Court of Appeal of Vanuatu. His appeal was dismissed by the Court of Appeal. The Court of Appeal advised him to lodge a constitutional petition if he wishes to pursue his claim. He said, his case is now in process before the Court.
For the purpose of consideration of this case (Constitutional/Civil Case No.59 of 2001), the facts leading to Civil Case No.35 of 2001 are not relevant facts. They are rejected since the First Respondent has pursued already an alternative option to get redress from his grievances. In any event, these facts have already been considered and findings of facts were made by the Supreme Court in Civil Case 35 of 2001 and also by the Court of Appeal in Appeal Case No.8 of 2001 which dismissed the First Respondent’s appeal.
The evidence shows clearly also that the statement which was read by the First Respondent, Speaker, before he suspended the six (6) Petitioners, was read in Parliament. The statement is not an enquiry into legislative acts or into the motivation for their actual performance of legislative acts. The statement was political rather than legislative in nature.
It is also clear that the Petition of the six (6) Members of Parliament is pending before the Supreme Court on 7 May 2001 in the afternoon. The Court heard the Petition on 8 May 2001. Written Notice of the Second Extraordinary Session was issued on 8 May 2001 by the clerk of Parliament. The fact is clearly established that the Speaker has signed the Notice of the Second Extraordinary Session on 7 May 2001 as shown in Annexure 4 of the Affidavit of the Second Respondent, Hon. Irene Bongnaim, which are as follows:
First the Summons for Parliament to meet in its 2001 Second Extraordinary Session:
“Republic of Vanuatu
Parliament House
Port-Vila, P.M.B. 052
Telephone (678) 22229
Telecopie (678) 24530
The Speaker
Our Ref: SP/400/7©-27/01-kui
SUMMONS FOR PARLIAMENT TO MEET
IN ITS 2001 SECOND EXTRAORDINARY SESSION
In accordance with the provisions of Article 21(2) of the Constitution, and Standing Order 14 of the Standing Orders of Parliament of 1982,
I HEREBY SUMMON PARLIAMENT to meet it its 2001 Second Extraordinary Session commencing on TUESDAY, 15TH MAY 2001 AT 8:30 ANTE MERIDIEM IN PORT-VILA.
Honourable Paul Ren Tari, MP
Speaker of Parliament
MADE at Parliament House, Port-Vila, this SEVENTH DAY OF MAY, 2001
CONVOCATION DU PARLEMENT EN REUNION POUR
LA DEUXIEME SESSION EXTRAORDINAIRE DE 2001
Conformement aux dispositions de l’Article 21(2) de la Constitution et de l’Article 14 du Reglement Interieur du Parlement de 1982,
LE PARLEMENT EST PAR LES PRESENTES CONVOQUE a se reunir pour sa Deuxieme Session Extraordinaire qui commencera le MARDI 15 MAI 2001 A 8 HEURES 30 A PORT-VILA.
Honourable Paul Ren Tari, MP
President du Parlement
FAIT a Port-Vila, Edifice du Parlement ce 7 MAI, 2001”
Secondly, the list of Matters to be debated as follows:
“PARLIAMENT OF THE REPUBLIC OF VANUATU
Received:
Dated: 07/05/01
Time: 15:20
SIXTH LEGISLATURE
SECOND EXTRA ORDINARY SESSION OF PARLIAMENT.
MAY 2001
In accordance with Article 21(2) of the Constitution of the Republic of Vanuatu, which clearly states that Parliament may meet in an Extraordinary Session at the request of the majority of its members, the Speaker or the Prime Minister.
And in accordance with Article 22(2) of the Constitution further states that Parliament shall make its own rules of procedure.
And in accordance with Standing Orders 14(1)(2)(3)(4) and (5).
I, PAUL REN TARI, Speaker of Parliament of the Republic of Vanuatu summon Parliament to meet in Extraordinary Session.
And in accordance with Standing Orders 14(2)(a) (b) and (c) I submit the following:
The reasons for which this Extraordinary Session is to be summoned are-
1. Motion to debate and decide on Constitutional breaches of Article 22(2) of the Constitution and Standing Orders of Parliament.
2. Motion to debate and decide on Constitutional breaches of Article 27(1) and (2) of the Constitution and Standing Orders 40.
3. Motion of No Confidence against the Prime Minister Honourable Edward Natapei.
4. Election of a new Prime Minister.
In accordance with Standing Orders 14(2) the duration of this Extraordinary Session of Parliament shall be for seven days and shall commence on 15th May 2001.”
Thirdly, the Notices issued by the Clerk of Parliament subsequently:
“REPUBLIC OF VANUATU
Parliament House
Port-Vila, P.M.B. 052
Telephone (678) 22229
Telecopie (678) 2453
Le Greffier – Secretaire General
SG/C/38/01/LBS/tkm
TO: ALL MEMBERS OF PARLIAMENT
A: TOUT DEPUTE AU PARLEMENT
NOTICE
SECOND EXTRAORDINARY SESSION
OF PARLIAMENT 2001
In accordance with the summons given by the Hon. Speaker of Parliament on Monday 7th May 2001, I HEREBY GIVE NOTICE that Parliament is summoned to meet a second time for its 2001 Second Extraordinary Session on Tuesday 15 MAY 2001 at 8.30AM AT PARLIAMENT HOUSE IN PORT-VILA.
The matters to be discussed by Parliament during the Second Extraordinary Session shall be limited to the study of matters that are listed in the Annexures to this Notice.
Lino BULEKULI dit SACSAC
CLERK OF PARLIAMENT
MADE at Parliament House, Port-Vila, this 8th DAY OF MAY 2001
------------------------------------------------------------------------------------------------------------
AVIS
DEUXIEME SESSIONEXTRAORDINAIRE DE 2001
Conformément à la Convocation faite par l’ Honorable Président du Parlement en date du 7 Mai 2001, IL EST PAR LES PRESENTES DONNE AVIS que le Parlement est convoqué pour la Deuxième Session Extraordinaire de 2001 qui commencera le MARDI 15 MAI 2001 A 8:30 HEURES A PORT-VILA DANS L’EDIFICE DU PARLEMENT.
Les affaires à traiter durant la Deuxième Session Extraordinaire comprendra l’étude des Affaires figurant en Annexe à cet Avis.
Lino BULEKULI dit SACSAC
SECRETAIRE GENERAL
FAIT à Port-Vila, Edifice du Parlement ce 8 MAI 2001”
Further, the two (2) Motions to suspend the 27 Members of Parliament on the Government side of the Parliament Benches:
The Motion… of 2001 (Motion No.1) is set out as follows:
“PARLIAMENT OF THE REPUBLIC OF VANUATU
SIXTH LEGISLATURE
EXTRAORDINARY SESSION OF 2001
MOTION No…… OF 2001
MOVED BY: Hon. Irene Bongnem
First Deputy Speaker
SECONDED BY: Hon. Henry Iaukou
Second Deputy Speaker
SUBJECT:
CONSTITUTIONAL BREACHES OF ARTICLE 27(1) AND (2) OF THE CONSTITUTIONAL AND STANDING ORDER 40
WHEREAS:
1. The Speaker in accordance with Standing Orders 40(2) decided to remove the Hon. Edward Natapei, Hon. Serge Vohor, Hon. Silas Hakwa, Hon. Henri Taga, Hon. Allan Nafuki and Hon. Josias Moli during the First Extraordinary Session of Parliament from this honourable house.
2. The Honourable Speaker had given his reasons for removing the said members of Parliament from this honourable house for breaches of the Constitution and breaches of the Standing Orders.
3. The Honourable Speaker was in accordance with article 22(2) of the Constitution taken the correct action in removing the said members for their breaches of article 27 of the Constitution and Standing Orders 40(2)(b) (c) (d) and (e).
4. This honourable house is also in agreement with the Speaker’s ruling and endorses his reasons that the said members by breaching article 27 of the Constitution and Standing Orders 40(2(b) (c) (d) and (e) have brought disrespect to this honourable house.
5. Article 27(1) of the Constitution clearly states that NO member of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given or votes cast by him in Parliament in the exercise of his office. The Constitution further stated that no member may, during a session of Parliament or of one of its committees, be arrested or prosecuted for any offence, except with the authorization of Parliament in exceptional circumstances.
6. Twenty seen members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor, and Hon. Henri Taga proceeded and prosecuted the Honourable Speaker of Parliament during the First Ordinary Session of Parliament of 2001.
7. Twenty seven members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor, and Hon. Henri Taga obtained Court Orders from the Supreme Court threatening the arrest of the Speaker.
8. Twenty seven members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor, and Hon. Henri Taga had blatantly refused to adhere to Standing Orders 40(2)(b) (c) (d) and (e) thus bringing the respect and the integrity of this honourable house into question and total disregard for the authority of the Speaker.
9. The Mover and Seconder of the Motion of No Confidence in the former Prime Minister Hon. Barak T Sope Maautamate being the Hon. Edward Natapei and Hon. Silas Hakwa, refused to amend or withdraw the contents of the motion, when asked by the Honourable Speaker which is a blatantly disregard of Standing Orders 34 and 35.
10. By prosecuting the Honourable Speaker, the twenty-seven (27) members of Parliament had breached Standing Orders 15(1) and 16(1).
The Supreme Court orders obtained from these members made a mockery of the Standing Orders and the Parliament of the Republic of Vanuatu, by forcing Parliament to meet on the night of the good Friday of year 2001.
NOW THEREFORE PARLIAMENT HEREBY RESOLVES THAT:
In accordance with Standing Orders 40(4) that the Hon. Edward Natapei, Hon. Serge Vohor, Hon. Silas Hakwa, Hon. Henri Taga and the following members of Parliament, Hon. Ruben Titek, Hon. Joe Bomal Calo, Hon. Jacques Sese, Hon. Clement Leo, Hon. Willie Posen, Hon. Donald K. Masikevanua, Hon. Sela Molisa, Hon. Josias Moli, Hon. Joe Natuman, Hon. Jean Allan Mahe, Hon. Allan Nafuki, Hon. Kora Maki, Hon. Wilson Ray Aru, Hon. Jimmy Imbert, Hon. Dan. Avock, Hon. Jimmy Niklam, Hon. Philip Pasvu, Hon. John Morsen Willie, Hon. Willie O. Varasmaite, Hon. Hon. Daniel Bangtor, Hon. George Wells, Hon. Rakorm Foster, and Hon. Amos Titongoa be suspended from attending three (3) Extraordinary Sessions of Parliament and two (2) Ordinary Sessions of Parliament.
Dated at Port-Vila, this 7th Day of May 2001
Mover Seconder
Hon. Irene Bongnem Hon. Henry Iaukou
MP for Ambyrum MP for Tanna”
The Motion…….. of 2001 [Motion No.2] is set out as follows:
“PARLIAMENT OF THE REPUBLIC OF VANUATU
SIXTH LEGISLATURE
EXTRAORDINARY SESSION OF 2001
MOTION No…… OF 2001
MOVED BY: Hon. Irene Bongnem
First Deputy Speaker
SECONDED BY: Hon. Henry Iaukou
Second Deputy Speaker
SUBJECT:
CONSTITUTIONAL BREACHES OF ARTICLES 22(2) OF THE CONSTITUTION AND STANDING ORDERS OF PARLIAMENT.
WHEREAS:
1. Certain members of this honourable house have bestowed upon themselves the responsibility for maintaining order in Parliament.
2. The Prime Minister, Deputy Prime Minister and the Council of Ministers have bestowed upon themselves the responsibility for maintaining order in Parliament.
3. The majority of members of Parliament have bestowed upon themselves the responsibility of maintaining order in Parliament by moving a written motion to remove the Honourable Speaker of Parliament and his deputies from their responsibilities,
4. The Prime Minister and his Councils of Ministers have called an Extraordinary Session of Parliament to punish the Honourable Speaker by removing him from the service of Parliament for seven (7) months.
5. Article 22(2) of the Constitution clearly states that the Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.
6. It is clear that the Constitution does not allow the Prime Minister, the Council of Ministers, the majority of members, the Leader of the Opposition nor each and any single member of Parliament the responsibility of maintaining order in Parliament.
7. That Standing Orders of Parliament does not allow any members of Parliament to maintain order in Parliament.
8. That certain members of Parliament have bestowed upon themselves the role of being Policemen, Judge and Jury and Executioners of this honourable house.
NOW THEREFORE PARLIAMENT HEREBY RESOLVES THAT-
1. Any member of Parliament who pretends or has bestowed upon himself to be responsible for maintaining order in Parliament, has done so in breach of article 22(2) of the Constitution of the Republic of Vanuatu.
2. That any Prime Minister or Council of Ministers that pretends or has unilaterally bestowed upon themselves the responsibility for maintaining order in Parliament have done so in breach of article 22(2) of the Constitution of the Republic of Vanuatu.
3. That any members of Parliament who have bestowed upon themselves to be responsible for maintaining order in Parliament have done so in breach of article 22(2) of the Constitution of the Republic of Vanuatu.
4. That all members of Parliament who have bestowed upon themselves the power to maintain order in Parliament, have done so in contravention of Standing Orders 40(2)(c) (d) and (e) and Standing Orders 45.
5. That any members of Parliament who have breached article 22(2) of the Constitution and Standing Orders 40(2)(c) (d) and (e) and Standing Orders 45 are to be suspended from Parliament in accordance with Standing Orders 40(4) forthwith.
6. That the Honourable Edward Natapei Prime Minister (MP), Honourable Serge Vohor Deputy Prime Minister (MP), the Honourable Henri Taga (MP) be suspended from the service of Parliament in accordance with Standing 40(4). The duration of their suspension shall be for two Ordinary Sessions and three Extraordinary Sessions of Parliament.
Dated at Port-Vila, this 7th of May 2001
Mover Seconder
Hon. Irene Bongnem Hon. Henry Iaukou
MP for Ambyrum MP for Tanna”
It is clearly established that Motions 1 and 2 which were received on 7 May 2001 are brought before Parliament by the First Respondent, Speaker and moved by the Second and Third Respondents, who are respectively the First and Second Deputy Speakers of Parliament of Vanuatu. The very purpose of the said Motions [Motions 1 and 2] is for Parliament to consider and decide on the breaches of Articles 22(2) and 27(1) and (2) of the Constitution [apart from the breaches of Standing Orders of parliament (if any)] resulting in Civil Case No.35 of 2001 against the First Respondent, Speaker. As the affidavit evidence of MP Jacques Sese shows, on 7 May 2001, he has done nothing wrong. He is one of the 27 Members of Parliament on the Government side mentioned in the Motion No.1 of 2001.
IX - THE LAW
RELEVANT CONSTITUTIONAL PROVISIONS
CHAPTER 1 OF THE CONSTITUTION STATES:
“THE STATE AND SOVEREIGNTY”
Republic of Vanuatu
1. The Republic of Vanuatu is a sovereign democratic state.
Constitution Supreme Law.
2. The Constitution is the supreme law of the Republic of Vanuatu.
National Sovereignty
4. (1) National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.”
CHAPTER 2 of the Constitution states:
“FUNDAMENTAL RIGHTS AND DUTIES”
PART I – Fundamental Rights
FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL
5. (1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimated public interest in defence, safety, public order, welfare and health:
(a) ….
(b) ….
(c) ….
(d) Protection of the law;
(e) ….
(f) ….
(g) Freedom of expression;
(h) ….
(i) ….
(j) ….
(k) Equal treatment under the law …”
ENFORCEMENT OF FUNDAMENTAL RIGHTS
6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.
(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.”
CHAPTER 4 OF THE CONSTITUTION STATES:
“PARLIAMENT”
Parliament
16.(1) Parliament may make laws for the peace, order and good government of Vanuatu.
(2) Parliament shall make laws by passing bills introduced either by one or more members or by the Prime Minister or a Minister.”
17.(1) Parliament shall consist of members elected on the basis of universal franchise through an electoral system which includes an element of proportional representation so as to ensure fair representation of different political groups and opinions.”
Procedure of Parliament
21. (1) ….
(2) Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.
(3) ….
(4) Unless otherwise provided in the Constitution, the quorum shall be two third of the members of Parliament. If there is no such quorum at the first sitting in any session Parliament shall meet 3 days later, and a simple majority of members shall then constitute a quorum.
(5) Parliament shall make its own rules of procedure.”
Speaker
22. (1) ….
(2) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.
(3) ….
Privileges of Members
27.(1) No member of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given or votes cast by him in Parliament in the exercise of his office.
(2) No member may, during a session of Parliament or of one of its committees, be arrested or prosecuted for any offence, except with the authorisation of Parliament in exceptional circumstances.”
CHAPTER 7 OF THE CONSTITUTION STATES:
“THE EXECUTIVE”
Executive Power
39.(1) The executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law.
Collective Responsibility of Ministers and Votes of No Confidence
43.(1) The Council of Ministers shall be collectively responsible to Parliament.
Ministers to Remain Members of Parliament
46. Members of Parliament who are appointed Ministers shall retain their membership of Parliament.”
CHAPTER 8 OF THE CONSTITUTION STATES:
“JUSTICE”
The Judiciary
47.(1) The administration of justice is vested in the judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law….
The Supreme Court
49.(1) The Supreme Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law.
Application to Supreme Court Regarding Infringements of Constitution
53.(1) Anyone who considers that a provision of the Constitution has been infringed in 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 jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.”
THE RELEVANT ORDERS OF THE STANDING ORDERS OF PARLIAMENT.
ORDER 34 OF THE STANDING ORDERS STATES:
“ CONTENTS OF QUESTIONS
(2) A question shall not refer to any matter on which a judicial decision is pending or reflect on the decision of a court of law.”
ORDER 35 OF THE STANDING ORDERS STATES:
“WRITTEN MOTIONS
(3) The rules contained in Standing Order 34 shall apply to the contents of any written motion.”
PART VII – DEBATES IN PARLIAMENT
ORDER 38 OF THE STANDING ORDERS STATES:
“QUORUM
If at any time the attention of the Speaker is directed to the fact that a quorum is not present, he shall order the bells to be rung and if at the end of the (5) five minutes, a quorum is not present, he shall adjourn Parliament without question put; but if it be shown at any time that a quorum is present, it shall not be in order to draw the attention of the Speaker to the absence of quorum until after the end of one hour from that time.”
ORDER 39 OF THE STANDING ORDERS STATES:
“CONDUCT OF DEBATES
(1) Any member who wishes to speak shall raise his hand in a clearly visible manner and shall not speak until the Speaker has given him leave to do so.
(2) When speaking, a Member shall address himself to the Speaker and shall speak from the place where he sits in Parliament. A Member shall not interrupt or challenge a Speaker.
(3) No Member shall be entitled to speak more than three (3) times on the same subject excluding questions and answers related to the subject.
(4) The Speaker may call a Member to order if his speech is not relevant to the matter under debate. If the Member does not comply or he persists in speaking after having been requested to conclude his speech, the Speaker may direct him to cease to speak.”
ORDER 40 OF THE STANDING ORDERS STATES:
“ORDER IN PARLIAMENT
(1) The Speaker, after having called the attention of Parliament to the conduct of a Member who persists in irrelevance or tedious repetition either in his own arguments or of the argument used by other Members in debate, may direct him to discontinue his speech.
(2) If any Member:
(a) persistently and willfully obstructs the business of Parliament;
(b) is guilty of disorderly conduct;
(c) uses objectionable words which he refuses to withdraw;
(d) persistently or willfully refuses to conform to any Standing Order;
(e) persistently or willfully disregards the authority of the Speaker;
the Speaker shall order the Member to withdraw immediately from Parliament and its precincts during the remainder of that sitting.
(3) In the case of grave disorder arising in Parliament, the Speaker may adjourn Parliament without question put or suspend any sitting for a time determined by him.
(4) Parliament may, on a motion moved by a Member, suspend any Member from the service of Parliament for such period indicated in the motion. A Member who is suspended shall not be admitted to Parliament or its precincts during the period of suspension.
(5) Any motion presented in accordance with paragraph (4) shall be in writing and seconded and a notice of 2 clear days shall be given thereof to the Speaker.”
ORDER 42 OF THE STANDING ORDERS STATES:
“POINT OF ORDER
(1) The Speaker shall call the attention of Parliament to any violation of the Standing Orders.
(2) A Member may, at any time, call the attention of the Speaker on a point of order. The member shall indicate to the Speaker, as briefly as possible, which Standing Order, practice or procedure has been violated.
(3) The Speaker may allow a point of order to be debated before he makes a decision but such debate shall be strictly confined to the point of order raised.
(4) On a point of order, the Speaker may render his decision either forthwith or at a later sitting. The Speaker shall indicate the reasons for his decision.”
ORDER 43 OF THE STANDING ORDERS STATES:
“MATTERS OF PRIVILEGE
(1) A Member who wishes to raise a matter which he believes to affect the privileges of Parliament or one of its Members shall do so as soon as possible after the matter comes to his attention. Such Member shall verbally inform the Speaker, stating the facts to which he wishes to draw attention at least one hour before the beginning of the sitting at which he proposes to raise the matter.
(2) When a Member is called by the Speaker to raise a matter of privilege, he shall state briefly the facts to which he wishes to draw the attention of Parliament and the brief grounds on which he believes that those facts affect the privileges of Parliament or one of its Members.
(3) The Speaker shall then state whether or not, in his opinion, the matter appears to affect the privileges of Parliament or one of its Members and if the Speaker so decides, the matter may be referred to Parliament.
(4) If the Speaker is of the opinion that the matter raised affects the privileges of Parliament or one of its Members, any Member may move an oral motion without notice, based on that matter of privilege and such motion shall be debated forthwith.
(5) If, during the course of any sitting, a Member raises a matter which, in the opinion of the Speaker, appears to involve the privileges of Parliament or one of its Members and which calls for the immediate attention of Parliament, the Speaker shall interrupt the proceedings, except when a question has been put, and Parliament may proceed forthwith to debate a motion based on such matter.”
ORDER 45 OF THE STANDING ORDERS STATES:
“DECISION OF THE SPEAKER
The opinion or a decision of the Speaker as to any question related to the application or interpretation of these Standing Orders shall not be challenged except on a written motion made in accordance with Standing Order 35.”
X - APPLICATION OF THE LAW TO THE FACTS AS FOUND BY THE COURT
I now propose to deal with the following issues:
A. Suspension of six (6) Petitioners on 7 May 2001.
1. Submissions by Petitioners.
The counsel for the Petitioners submitted that the Speaker has no power to suspend the six (6) Members of Parliament under Standing Order 40(2)(c)(e). He stated that Standing Order 40(1)(2) emphasize “sitting”. He argued that sitting referred to under the Standing Orders of Parliament means “a day or part of a day or any period”. In the recorded statement made by the Speaker regarding the suspension of the six members, during the sitting on 7 May 2001, he submitted that the Speaker agreed that the six suspended members of Parliament did not say anything or disturb the proceeding or meeting on the sitting of 7 May 2001. He said that the Speaker has stated in Court that the main reason of his suspension of the six members of Parliament on 7 May 2001 is because of their (six members of Parliament) involvement in Civil Case 35 of 2001 (case against him).
It is also argued for the Petitioners that the Constitution empowers Parliament to make its own rules of procedure. Those rules of procedure are contained in the Standing Orders of Parliament. He emphasized that the Speaker is not Parliament. Parliament is described under Chapter 4, Article 15 of the Constitution. Parliament is the 52 duly elected Members of Parliament. The Speaker is just a presiding officer.
Further counsel for the Petitioners submitted that the Speaker has not informed the six suspended Members of Parliament of the reasons of their suspension before he suspended them. He said that this was clear when he cross-examined the Speaker in the witness box. The only response he gave was that it was the first and only chance for him to take action against the six members following their actions against him in relation to Civil Case 35 of 2001.
The Speaker agreed that he went to court in Civil Case 35 of 2001 and that he purged the contempt order and agreed to comply with the orders in Civil Case 35 of 2001. He also agreed that he has lodged an appeal in Civil Appeal Case 8 of 2001, which the Court of Appeal ruled and dismissed his appeal. In cross examination, the counsel for the Petitioners asked him whether the Court of Appeal in Civil Appeal Case 8 of 2001 proposed to him avenue to follow if he believes his constitutional rights are breached and he agreed and said his case is now in process.
The parties listened to the taped record of the proceedings of Parliament on 7 May 2001, and the Speaker has agreed that it was the true record of what was happening in the Parliament on 7 May 2001. It is clear that what transpires from the tape record was not disputed as to what the Speaker said or happened.
The counsel for the Petitioners finally submitted that the content of statement made by the Speaker in the affidavit of Hon. Edward Natapei and in his own affidavit are the same except for one word that is missing in second last page in the last line. The words are “mo meeting ia”. From the Speaker’s affidavit he said that he has suspended the six members only for the remainder of the sitting which was denied by the Petitioners.
2. Submissions by the Respondents
The Respondents submitted that the Speaker has the power to suspend the six (6) members of Parliament.
It is also put for the Respondents that the Speaker has power under the Constitution by virtue of Article 22(2) to preside at sittings of Parliament and to be responsible for maintaining order in Parliament. He also submitted the Speaker has power under Order 40 of the Standing Orders of Parliament to suspend the six (6) members of Parliament.
It is further put for the Respondents that the Speaker’s ruling in Parliament on 7 May 2001 to suspend the six (6) members of Parliament namely Hon. Allan Nafuki and Hon. Josias Moli on grounds of disorderly conduct and also Hon. Silas Hakwa, Hon. Edward Natapei, Hon. Serge Vohor and Hon. Henry Taga on the grounds that they were guilty of breaching Standing Order 40(2)(c), (d) and (e) are lawful. The counsel for the Respondents also submitted that when the Speaker made his ruling to suspend the six (6) members of Parliament, they (suspended members) may appeal against his ruling by making a motion under Order 45 of the Standing Orders of Parliament. He said that the suspended members have however, did not do this but chose to go to court.
The Counsel for the Respondents finally submits that the decision of the Speaker to suspend the six (6) members of Parliament was in accordance with the Constitution and the Standing Orders.
3. Considerations by the Court
Article 22(2) of the Constitution says that the Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order. On the basis of Article 21(5) of the Constitution, the Standing Orders of Parliament provide the detailed mechanisms. Order 40 of the Standing Orders of Parliament deals with Order in Parliament. Order 40(1) says that:
“(1) The Speaker, after having called the attention of Parliament to the conduct of a Member who persists in irrelevance or tedious repetition either in his own arguments or of the arguments used by other Members in debate, may direct him to discontinue his speech.”
Order 40(2) says:
“(2) If any member:
(a) persistently and willfully obstructs the business of Parliament;
(b) is guilty of disorderly conduct;
(c) uses objectionable words which he refuses to withdraw;
(d) persistently or wilfully refuses to conform to any Standing Order;
(e) persistently or wilfully disregards the authority of the Speaker;
the Speaker shall order the Member to withdraw immediately from Parliament and its precincts during the remainder of that sitting.”
Order 40(3) provides that:
“In the case of grave disorder arising in Parliament the Speaker may adjourn Parliament without question put or suspend any sitting for a time determined by him.”
Order 40(1), (2) and (3) apply to the conduct or action of a Member of Parliament in Parliament when the Parliament sits. They provide also the power to the Speaker to act or intervene in the following manner:
Firstly, the Speaker… may direct the Member to discontinue his speech (Order 40(1);
Secondly, the Speaker shall order the Member to withdraw immediately from Parliament and its precincts during the remainder of that sitting;
Thirdly, the Speaker may adjourn Parliament or suspend any sitting for a time determined by him.
The First Respondent suspended the 6 Petitioners on basis of Order 40(2)(c)(e) of Standing Order of Parliament as he said. However, on 7 May 2001, none of the six (6) suspended Petitioners say anything or do anything wrong. This was confirmed by the First Respondent’s own admission to this effect.
It is to be reminded that Standing Orders of Parliament are not laws of the Republic of Vanuatu. Standing Orders of Parliament are only internal rules of Parliament.
When the Speaker rules on procedural matters, the Court has no jurisdiction to enquire further but if that ruling interferes with constitutional right of the person involved, the Supreme Court does have the power/right to enforce that right [Article 6(1) and 53(1) of the Constitution]. Further, in order to investigate and enforce effectively the contravention/breach of a constitutional right, the Supreme Court has the right to examine the proceedings in Parliament and this extends to the actual decision made by the Speaker whether or not the ruling is correct. If it is, there will be no contravention of the members’ rights. If the ruling is wrong, the Supreme Court has the power/right to make orders, issue writs and give directions, including the payment of compensation, as it considers appropriate to enforce that right which is guaranteed and protected under the Constitution [Article 6(2) of the Constitution]. Furthermore, the Supreme Court has jurisdiction to determine the matter and to make order as it considers appropriate to enforce the contravention/breach of the provisions of the Constitution [Article 53(2)].
The First Respondent ordered the six (6) Petitioners to withdraw from Parliament and its precincts for the remainder of “the sitting and the meeting”. Order 40(2) does give the power to the Speaker to order a Member of Parliament to withdraw from Parliament and its precincts for the remainder of the sitting. This does not extend to a “meeting” of Parliament. As the evidence show, the Speaker ordered the 6 Petitioners to withdraw immediately from Parliament and its precincts for the remainder of the sitting and meeting of the Parliament.
This amounts to a de facto suspension. The Speaker does not have the power under Order 40(2)(c), (e) to suspend a member. Further there are no grounds for the Speaker to so order against the six (6) Petitioners as he did on 7 May 2001.
The sitting referred to under the Standing Orders of Parliament means “a day or part of day or any period” as submitted by the Petitioners. On each day when Parliament assembles and the Speaker takes the chair, there is a sitting.
A parliamentary session may be divided into meetings; meetings may be divided into sittings. [See Maxime Carlot & Others v. Attorney General & Others (1988), Van. C.A., App. Case No.4 of 1988, Van.L.R. Vol. 1, 1980-1988 at 409].
Order 40(4) provides that:
“Parliament may, on a motion moved by a Member, suspend any Member from the service of Parliament for such period indicated in the Motion. A Member who is suspended shall not be admitted to Parliament or its precincts during the period of suspension.” (Emphasis added)
As it transpires from the perusal of Order 40 and in particular Order 40(2)(c) & (e) of the Standing Orders of Parliament, the Speaker has no power to suspend a Member of Parliament. Parliament only has that power as provided under Order 40(4). The Speaker is not Parliament. Parliament is composed of all Members of Parliament, currently there are 52 Members.
The Speaker is an officer of the Parliament and he has important functions and responsibilities. The Speaker is responsible for the organisation of the Parliamentary work, in particular summoning Parliament to hold its sessions. He presides at sittings of Parliament and is responsible to maintain order in Parliament, when Parliament sits. When the Speaker presides at the sittings, he determines the order of intervention of the Members who speak, controls the right to speak. The Speaker has also the right to close or stop the debate and/or discussion and maintain the order in Parliament as provided under Order 40(1), (2) and (3). The Speaker is responsible for the security in Parliament and represents Parliament before the Courts of law.
The misinterpretation and misapplication of Standing Order 40(2)(c)(e) had then the effect of infringing the rights of the 6 Petitioners:
(1) to lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu;
(2) to the protection of the law, freedom of expression and equal treatment under the law or administrative action [Article 5(1)(d), (g) and (k) of the Constitution].
As to the submission that the First Respondent Speaker failed to provide to the six (6) suspended members, an opportunity to be heard or no reasons provided to them, is rejected. The right to be heard or the right to be informed of the reasons of the suspension before the Speaker suspended the 6 members, is governed by Standing Orders, and while the six (6) members should have been given the opportunity to have their say or be informed of the reasons of their suspension does not go to the validity of the Parliament proceedings. In any event, the Court cannot enquire into that matter.
In this case, the suspension of the six (6) Petitioners on 7 May 2001 is invalid, void and of no effect.
B. Closing of the First Extraordinary Session of Parliament
1. Submissions of the Petitioner
The Petitioners alleged that the first extra ordinary session of Parliament was not properly closed according to law, as there was no quorum.
They submitted also that the quorum of Parliament is half plus one, which is twenty-seven (27) members of Parliament. He said that when the Speaker closed the first extra ordinary session of Parliament, there were only twenty members plus the Speaker himself present in the chambers. Since there was no quorum, the Speaker should not have closed the first extra ordinary session of Parliament.
They further submitted that on 7 May 2001 when the Speaker suspended the six members, twenty other members on government side have walked out from the Parliament Chamber. The Speaker proceed and continued on with the proceeding after they walked out and Hon. Willie Ollie Varasmaite MP who was the only member on government side raised the point of quorum. When the Speaker asked the Hon. Varasmaite about what happened to the government business or government bills he replied him saying that the leader of the government business was among those whom he (Speaker) just suspended and ordered to leave the Parliament. Hon. Willie Varasmaite left the chambers after he replied the Speaker.
Despite the walking out of the members of the government side, the Speaker continued on with the sitting. He has allowed and sought Hon. Sato Kilman and Hon. Willie Jimmy to give their views of the issue of quorum. Hon. Willie Jimmy referred to Standing Order 17 of the Parliament and said that order of business of the day has been decided already and that the Speaker suspended six members only and the twenty-one (21) members should not have walked out. He said, since they decided to walk out, the Speaker should continue with the sitting and close the first extra ordinary session and call the second extra ordinary session.
It is finally said for the Petitioners that from the Speaker’s evidence he said that he has sought advice from 3 people; Clerk of Parliament, Hon. Sato Kilman and Hon. Willie Jimmy. The statement of the Speaker was typed and prepared for 3 May 2001 and altered in handwriting to 7 May 2001. The Speaker conceded and agreed to this. He said on 3 May 2001 there was no quorum.
2. Submissions of the Respondent
The Respondents submitted that the First Extra Ordinary Session of Parliament was properly closed by the Speaker on 7 May 2001.
They further submitted that the Speaker properly and legally convened the First Extra Ordinary Session and the notice and the list of items to be discussed at Session was in order. However, there is dispute whether the Speaker was properly and legally closed the First Extra Ordinary Session. It was submitted that the Speaker had properly and legally closed the Session on the following basis:
(i) The Clerk of Parliament advised the Speaker during the five minutes break following the walk out of twenty one members on the Government side, the right hand of the house, meant there was no member from the right side of the House to introduce business before the House.
(ii) Member of Parliament Willie Oli Varasmaite was out of order pursuant to Standing Order 38 which provides among other things that “If it be shown at any time that a quorum is present, it shall not be in order to draw the attention of the Speaker to the absence of quorum until after the end of 1 hour from that time”. Therefore, Hon. Varasmaite’s intervention should have been made 1 hour afterwards, and the fact that he made his statement to the alleged lack of quorum misled the Speaker into making a hasty and ill-advised decision.
(iii) In the Speaker’s evidence he said that whether there was a quorum or not following the walk out from Parliament of the twenty one members on the government side did not change the fact that the business before Parliament could not be transacted because there was no one to introduce the original business to be transacted.
(iv) The Speaker also said in his evidence that in his view when a member of Parliament is suspended from Parliament his or her absence from Parliamentary proceedings pursuant to the suspension decision and the grounds for the suspension means that the suspended member is not included in the calculation or estimation of the quorum. Effectively this means that when the Speaker suspended the six members the number of members to be included in the estimation of the quorum for Parliament dropped from fifty two (52) members of Parliament (the total Constituent of Parliament) down to forty six (46). On that basis the twenty five (25) members of Parliament who remained inside of the Parliament chambers following the walk out of 21 members on government side and suspension of six members did form a quorum.
(v) Standing Order 14(4) states that “An ordinary session shall be limited to one meeting of Parliament unless the Speaker decides for special reasons". The Speaker gave evidence that the Parliamentary bells were rung after 5 minutes break following the walk out to allow the twenty one members who had walked out to return to the chambers so the proceedings may continue. However, the twenty-one members did not return when the Speaker and the twenty-four members of Parliament of the opposition were present. At that stage, the Speaker decided to close the first extra ordinary session and announced that he will call the second extra ordinary session of Parliament.
The counsel for the Respondents submitted that although, the Speaker did not mention to the members present in the chambers, in fact he had been advised by the Clerk of Parliament that he should close the first extra ordinary session because there was no one to introduce the government business. This appeared to be the correct decision because there was no other business to be dealt with except the government business set out in the list of matter contained in Annexure 1 to the affidavit of the Hon. Prime Minister Edward Natapei sworn on 7 May 2001.
It was clear from the evidence of Hon. Prime Minister that neither he nor any member on the government side made any attempt to advise or persuade the twenty one members who walked out to return to the chamber, therefore, the decision of the Speaker to close the first extra ordinary session of Parliament was proper, as the Speaker did not receive any advice or indication as to when the twenty one members would return to the chambers. The counsel for the Respondents submit that the Petitioners’ claim in regard to the issue that their constitutional rights were infringed because of the closing of the first extra ordinary session cannot stand up because they themselves contributed to the closing, not only by their absence but also because of the fact that in the absence of any indication from them as to how long they will be out of the chambers, the Speaker cannot be held to ransom the absent members.
Finally, the counsel for the Respondents submit that there is nothing preventing the government side from introducing the same list of matters in another extra ordinary session of the present Parliament given the fact the twenty seven members of Parliament still form the majority government of the country.
3. Considerations by the Court
The question to be determined by the Court is whether the First Extraordinary Session of Parliament was properly closed according to law? The answer to this question is in the negative (NO). The First Extraordinary Session of Parliament was not properly closed by the Speaker according to law, as there was no quorum. The evidence is overwhelming to this effect.
When Parliament assembled on 7 May 2001, all 52 Members of Parliament were present. When the Speaker suspended the six Members/Petitioners, and ordered them to leave Parliament and its precincts, twenty (20) other Members on Government side walked out from the Parliament Chambers in solidarity with the suspended members and to protest against the decision of the Speaker which is unlawful and has the effect of contravening the rights of the 6 members. The Speaker knew this as he was presiding at the sitting of 7 May 2001. He then proceeded and continued on with the proceedings after 20 Members walked out. Hon. Willie Varasmaite MP who was the only Government Member of Parliament, raised the issue of quorum and informed the Speaker that the Leader of the Government business was among those whom the Speaker had suspended and ordered to leave Parliament. Hon. MP Varasmaite, then, left Parliament. After this, 25 MPs including the Speaker were present in Parliament.
Article 21(4) of the Constitution provides that:
“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 3 days later, and a simple majority of members shall then constitute a quorum.”
Parliament was summoned for the First Extraordinary Session of 2001 on 3 May 2001. Some Members of Parliament boycotted the Session. The Speaker adjourned it to 7 May 2001 in accordance with Article 21(4) of the Constitution. On 7 May 2001, the quorum is a simple majority of members which is half of the total members present plus one (1): [52:2=26+1=27 members].
The quorum of Parliament is half plus one, which is 27 Members of Parliament.
As the evidence shows, despite the walking out of the Members of the Government side, the Speaker continued on with sitting.
He adjourned the sitting for 5 minutes and sought advice from the clerk and other Members of Parliament who were present, namely Sato Kilman and Willie Jimmy on the issue of quorum.
After the short break of 5 minutes, the Speaker and 24 other Members of Parliament went into the Parliament. At that point in time, the number of Members in Parliament was 25 including the Speaker. It is common ground, the Speaker knew this as he sought advice on that very issue of quorum. Further, in his evidence while cross-examined, he admitted to the effect that on 7 May 2001, after the short adjournment of Parliament, Parliament was not quorate and Parliament should not proceed with any business.
However, on 7 May 2001, despite his knowledge of the lack of quorum, after the suspension of the 6 members and the walking out of Parliament of 20 other members, he decided to close the First Extraordinary Session of Parliament of 2001 as he so did. He further made an announcement that he will call the Second Extraordinary session of Parliament of 2001. After the short adjournment of 5 minutes, Parliament resumed again but there was no quorum.
The Respondents’ submissions that the estimation of quorum for Parliament on 7 May 2001, dropped from fifty two (52) Members of Parliament down to forty six (46) so that twenty five (25) members who remained in Parliament Chambers following the walk out of 21 members on Government side and suspension of six (6) members did form quorum cannot stand and is rejected. The decision of the Speaker to close the First Extraordinary Session of Parliament of 2001 was unlawful and unconstitutional because it was contrary to Article 21(4) of the Constitution as there was no quorum.
[See Court of Appeal in Re Maxime Carlot v. A.G. A.C. No.4 of 1988, and also C.A. Barak Sope & Ors v. AG & Ors, Appeal Case No.3 of 1988. Van.L.R. pp. 405 to 410].
Consequently, it follows that as there was no quorum at the part of the sitting after the short adjournment, on 7 May 2001, all business which included, the closing of the First Extraordinary Session of Parliament of 2001 and the announcement by the Speaker to call a Second Extraordinary Session of Parliament, were invalid.
The decision of the Speaker on 7 May 2001 to close the First Extraordinary Session of 2001, when Parliament is not quorate has the effect of denying to the Petitioners as lawfully elected Members of Parliament the following constitutional rights:
(1) to lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu;
(2) rights guaranteed under the provisions of paragraphs (d), (g) and (k) of sub-article (1) of Article 5 of the Constitution;
(3) right under Article 21(2) of the Constitution;
(4) right guaranteed under the provisions of Article 22(2) of the Constitution;
(5) to permit Parliament to meet and continue to meet when Parliament was not quorate, such act and/or omission being in contravention of Article 21(4) of the Constitution;
(6) right guaranteed under the provisions of Article 27(1) of the Constitution;
(7) Right to exercise its lawful and constitutional duty, function and/or responsibility.
The cases in support are as follows: Hon. Edward Natapei and Ors v. Hon. Paul Ren Tari, Speaker, Civil Case No.35 of 2001 (Supreme Court judgment), Hon. Maxime Carlot Korman MP & Ors v. Hon. Edward Natapei MP, Speaker & Ors, Civil Appeal Case No.168 of 1997 – Van Appeal Case No.8 of 1997.
C. Summons of Notice of the Second Extraordinary Session
1. Submissions of the Petitioners
The Petitioners claimed that calling of the second extra ordinary session of Parliament was not proper since the first extra ordinary session of Parliament still alive and on.
The counsel for the Petitioners submitted that the Speaker announced on 7 May 2001, that he would call the Second Extra Ordinary Session of Parliament on 8 May 2001. Written notice of the Second Extra Ordinary Session was issued on 8 May 2001.
In Hon. Irene Bongnem’s affidavit, it is clear that the Speaker has signed the notice of the Second Extra Ordinary Session on 7 May 2001 (see Annexure “4”). Annexures “5” and “6” are summons of the Clerk of Parliament issued on 8 May 2001. Annexure “7” is the list of matters for the second Extra Ordinary session and Annexure “8” is the two motions. Annexure “10” is the motion of no confidence against the Prime Minister Edward Natapei.
In the summons received by the 52 members of Parliament, it is clear that the Speaker has signed the document on 7 May 2001 as shown in Annexure “5”.
The counsel for the Petitioners submitted that the Speaker was wrong to call the Second Extra Ordinary Session for the Opposition to put a vote of no confidence against the government who have the majority.
2. Submissions by the Respondents
It is submitted for the Respondents in substance that the Speaker has the power to summon Parliament in the Second Extraordinary Session in accordance with Article 21(2) of the Constitution. The Summons of Notice of the Second Extraordinary Session was valid.
3. Considerations by the Court
The Constitution provides by Article 21(2) that Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.
It is clear that the Speaker has the right/power to request Parliament to meet in an extraordinary session.
However, in this case while the subject matter of the First Extraordinary Session of Parliament are pending before the Courts on 7 May 2001, the Speaker summons Parliament for the Second Extraordinary Session of Parliament of 2001 and Notices were signed by the Speaker on 7 May 2001.
Order 34(2) of the Standing Orders of Parliament says that:
"A question shall not refer to any matter on which a judicial decision is pending or reflect on the decision of a Court of law” and this includes written motion in accordance with Standing Order 35(3).
Can the Court interfere with the Summons of Notice of the Second Extraordinary Session of 2001 issued by the Speaker?
The general rule is 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… It is plain that the Court has a (constitutional) duty to interfere “if the constitutionally required process of law-making is not properly carried out”. [Court of Appeal, decision No.7 of 1996, Attorney General and Natapei v. Willie Jimmy and Barak Sope & Ors].
I will add to the above principle that where there is no breach of the Constitution, the Supreme Court has no power to interfere into the validity of the Parliament’s internal proceedings or the actions of the Speaker in the proceedings of Parliament. However, where there is a breach of a provision of the Constitution or the infringement of a constitutional right guaranteed and protected under the Constitution, the Supreme Court is then duty bound by the Constitution to interfere and enforce the breach of the constitutional provision (Article 53) or the constitutional right (Article 6). [See judgment of the Supreme Court in Hon. Edward Natapei & Ors v. Hon. Paul Ren Tari, Speaker of Parliament, Civil Case No.35 of 2001 (judgment of 12 April 2001) at p.12].
The evidence shows that on 7 May 2001 there is no breach of Order 40(2)(c)(e) as the Speaker admitted, none of the Petitioners say anything or do anything wrong or disturb him on 7 May 2001 at that sitting of Parliament.
The evidence also shows that the two (2) Motions were moved to debate and decide on the breaches of Article 22(2) and Article 27(1) and (2) of the Constitution, and the subsequent suspensions of all the 27 Petitioners.
It is fundamentally important to bear in mind that Parliament has no power to interpret and decide on the breaches of the Constitution. If the Parliament does so, its decision or action is ultra vires.
The interpretation and application of the Constitution (by granting relief) are self-evidently not a function of Parliament but the responsibilities entrusted to the Supreme Court by the people of this country through the Constitution. [See Supreme Court judgment of 6 April 2001 – Civil Case 35 of 2001 – Hon. Edward Natapei & Ors v. Hon. Paul Ren Tari, Speaker].
The 27 Petitioners apply to the Supreme Court because they say that by the action of the Second and Third Respondents, their constitutional rights are likely to be infringed (Article 6(1)). Although the First Respondent says in his evidence that if the Petitioners are not happy with his decision, they must challenge by motion under Standing Orders of Parliament, instead of going to the Court, the evidence shows also and it is more probable than not that, by the conduct of the Speaker and the two (2) Deputy Speakers and the misinterpretation by the Speaker of the Standing Orders of Parliament about his role in the sitting of Parliament, it will be difficult or impossible for the Petitioners to get justice according to law. Without the Court’s intervention the effect of the two motions would be unconstitutional because by doing so, they will affect the constitutional rights of the 27 Petitioners in Parliament.
It was wrong for the Speaker to call the Second Extraordinary Session of Parliament for the Opposition to put a vote of no confidence against the Government who has the majority. This was contrary to Articles 22(2) and 43(2) of the Constitution in the circumstance of this case. The majority of Members of Parliament have the right to put a vote of no confidence against the Government (Article 43(2) of the Constitution and request to debate the motion in an Extraordinary Session. (Vanuatu Court of Appeal judgement, Appeal Case No. 7 of 1996 – Attorney General & Edward Natapei v. Willie Jimmy & Ors). But it was wrong for the Speaker to do so as he did in this case.
D. Privileges/Immunity and the Jurisdiction of the Court to reinstate suspended Member of Parliament.
1. Submission of the Petitioner on Privilege/Immunity
In respect of Privileges and Immunities, the counsel for the Petitioners said that the Speaker has no immunity. The Member of Parliament including Hon. Paul Ren Tari as a Member of Parliament has equal rights. The Hon. Tari as Speaker has no special immunities and privileges. If he said he has any, he is wrong.
He said that Hon. Paul Ren Tari as Member of Parliament has privileges and immunities. It is wrong for the Speaker of Parliament to use the Parliament wrongly. He has a duty to look after the Parliament and to use Parliament to make decision. As the Speaker, he should not hide behind Article 27 of the Constitution for his actions, which is totally wrong and irresponsible.
The Counsel for the Petitioner has raised that the Court of Appeal had given an option for the Speaker in his appeal against ruling of Supreme Court in Civil Case 35 of 2001. He was represented by a lawyer and knows what to do but chose not to follow. Instead, on 3 May 2001, he prepared a statement to suspend the six members and on the 7 May 2001 has suspended them.
When the Petitioners filed a petition by virtue of Article 6(1) (2) and Article 53 (1)(2) against the Speaker for his unlawful actions, he said that court could not hear the matter because he is protected by Article 27 of the Constitution.
The statement made by the Speaker was prepared and signed on 3 May 2001, which was 4 days earlier. The Speaker said that it was his first opportunity to take the action against the six (6) suspended members. He said that they could not bring action against him in Court because he was protected by the immunity under Article 27, which is wrong. He further said that, there is no separation of powers. The counsel for the Petitioners said that Speaker was totally wrong and irresponsible in that regard.
The counsel for the Petitioners said that the Speaker as the presiding officer who has ultimate authority to rule on Standing Orders should make a ruling when he found and knew that there was no quorum on 7 May 2001. Instead, he ruled and decided to close the First Extra Ordinary Session and called the Second Extra Ordinary Session of Parliament with hope that the members of Parliament would receive their papers on 8 May 2001.
2. Submissions of the Respondents on Jurisdiction of the Supreme Court to reinstate suspended Members of Parliament.
The counsel for the Respondents submitted that if the court finds that the ruling of the Speaker was not in accordance with the Constitution or the Standing Orders, the court could not reinstate them because the court cannot interfere with the decisions of the Speaker in this respect. Unless the Constitution and or the Standing Orders or any other law of the Republic of Vanuatu clearly states that the court can so intervene the court should never interfere with the ruling of the Speaker. This is because Standing Order 45 states that the opinion or the decision of the Speaker as to any question related to the application or interpretation of the Standing Orders cannot be challenged except on a written motion made pursuant to Order 35.
The counsel for the Respondents submitted that the Speaker has complied in all respects with the Standing Orders in relation to suspension of the six (6) members of Parliament. He said that their suspension (six members) was made pursuant to Standing Orders 40(2) as previously mentioned. If the court were to find that the Speaker did not comply in all respect with the Standing Orders of Parliament in relation to suspension of the six (6) members, the court cannot reinstate them because the court would be unable to enforce its ruling in that respect because of the wide and strict provisions of Article 27(1) of the Constitution.
3. Considerations by the Court
The question to be determined by the Court is twofold:
(a) Is the Speaker of Parliament covered/immune under Article 27(1) of the Constitution for his unlawful actions?
(b) If the answer to question 1 is NO, then, can the Court intervene to correct the unlawful actions of the Speaker when called upon to do so by the Members of Parliament who are affected by such actions?
Article 27(1) of the Constitution provides:
“(1) No member of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given or votes cast by him in Parliament in the exercise of his office.”
The submissions on the question of privilege/immunities of the Members of Parliament are based on common law (English) approach.
It is important to have a brief history of the development of Parliamentary privilege in the United Kingdom in order to appreciate the existence, extent and exercise of the privilege of Parliament and its members in the Republic of Vanuatu.
In the United Kingdom, privilege evolved from a history of conflict between the Houses of Parliament, the Crown and the Courts. In essence, it was a struggle for independence as between the different branches of government. In earlier times, particularly prior to 1640, the Crown and the Courts showed no hesitation to intrude into the sphere of the Houses of Parliament. Nor did the Houses of Parliament hesitate to intrude into the sphere of the Courts. For example, in 1629, Charles I had Sir John Eliot and two other members charged and imprisoned for sedition for words spoken in debate in the House. For their part, the Houses of Parliament often used their penal jurisdiction to imprison sheriffs, magistrates and even judges of the Superior Court – as in 1689 when two (2) judges of King’s Bench were imprisoned for their decision in Jay v. Tophan (14 East 102, 104 E.R. 540).
Initially, the Houses simply claimed privilege on their own behalf. They did not request its recognition by the Crown in statute, or by the Courts in common law. Thus parliamentary privileges were in a sense outside the law, or a law unto themselves. It was referred to as part of the lex parliamentis or the law of the parliament, not as part of statute or common law. When a member was arrested in violation of privilege, the House would not turn to Crown or Courts for his release. It would not make an application for habeas corpus before the Courts and argue it on the basis of a doctrine of privilege, it would simply send the Sergeant-at-Arms with the ceremonial mace to the prison to demand the member’s release on its own authority.
Over time, with some acquiescence on all sides, the exercise of privilege became less confrontational. With the acquiescence of the Crown, much of the law relating to privilege was codified in statute. For example, the ninth article of the English Bill of Rights of 1689 provided that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.” The Courts conceded some jurisdiction to the Houses of Parliament through the common law. In turn, the Houses conceded some jurisdiction to the Courts, appearing before them pleading privilege and trusting them to dismiss an inappropriate claim on that basis. Finally, in 1704, the commons undertook not to claim any privilege in the future not already established by custom and usage. For a more detailed account of this historical evolution, see Erskine May’s Treatise on the law, Privileges, Proceedings and usage of Parliament (21st ed. 1989), at pp. 69-83.
Thus, privilege in the United Kingdom currently finds its source in the lex Parliamentis, the common law and statute law.
The same cannot be said of parliamentary privilege as it developed in the Republic of Vanuatu.
In Vanuatu, parliamentary privileges are derived from the Constitution (Article 27). Parliament is a creature of the Constitution and its powers/rights including privileges are created by the Constitution and their existence, and exercise are subject to the Constitution as it is the supreme law of the Republic of Vanuatu (Article 2).
Thus the inherent powers of Parliament of Vanuatu are not broad as those of the Houses of Parliament of the United Kingdom for three (3) reasons. First, the relatively shorter histories of such bodies had not given rise to a similar claim by way of custom and usage. Second, the same powers were not perceived to be justified by necessity. The last but not least, unlike the traditional British concept of the judicial role, Vanuatu has a written Constitution which inevitably enhance judicial authority by instituting a power of judicial review [Articles 6(1)(2); 16(4) and 53(1) (2) of the Constitution], because it falls to the judges to determine questions which arise as to the exercise of constitutional functions and, in doing so, to interpret the constitutional provisions. This role is entrusted to the Supreme Court of Vanuatu. Therefore, the “supremacy” (or even, misleading, “sovereignty”) of Parliament has long been one of the doctrines offered by British constitutional lawyers, including Dicey, could not survive transplantation into the political order of a new state such as the Republic of Vanuatu, established by a written Constitution which imposed a variety of limitations upon the legislative power: for example by enforceable guarantees of fundamental rights (Article 6) and effective enforcement of the provisions of the Constitution (Article 53) and the control of constitutionality of the legislative functions(Article 16(4)) and internal proceedings in the light of the constitutional rights provisions.
The case (English) of Stockdale v. Hansard [(1839), 9 Ad.4 e.1, 112 E.R. 1112], constitutes a major turning point in respect to the claims to jurisdiction made in the name of privilege by the House of Commons. In that case, Lord Denman CJ found first that the House’s Contention that its orders could not be questioned was untenable. To find otherwise would be to hold that the House of Commons is supreme when only Parliament is supreme. Thus when a case involving privilege is brought before them, the Courts must look at the grievance of the plaintiff to determine if it is indeed a matter of privilege. Otherwise, the House could bring any matter within its jurisdiction simply by declaring it to be so. If, upon examination, the subject matter does fall within the jurisdiction of the House, then the Courts cannot question its judgements. If, however, a claim of privilege is not valid, then the Courts can decline to enforce it. In that particular case, Lord Denman CJ embarked on that enquiry and determined that the House’s claim that it had the privilege of publishing defamatory material with immunity was not proven.
It follows from the above and subsequent English case law that Courts will enquire into the existence and extent of privileges, but not its exercise. This rule does not always provide a clear guide, however, as the existence, extent and exercise of privilege tend to overlap (example of free speech). Another general rule of the English case law is that Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the Parliament than at those which involve matters entirely internal to the Parliament. Here, the rule is not clear either though.
In the light of the above two (2) general rules, the position of the Courts in Vanuatu derives from the Constitution itself (Article 6 and 53). Therefore, in my view, the Courts will enquire into the existence, extent of the privilege and also its exercise this, irrespective of whether the issue of privilege is about members of Parliament or persons outside Parliament and/or internal proceedings of Parliament.
The judgment of the Vanuatu Court of Appeal in Attorney General & Nipake Edward Natapei v. Willie Jimmy & Others, Appeal Case No.7 of 1996 is in support of the above view and the Court of Appeal held (at p.10):
“We do not believe that the technicalities of the common law, and the limitations upon the English Courts’ power to direct the King which for good and sufficient historical reasons those Courts recognise, have any relevance to the proper interpretation of the Constitution of Vanuatu. The powers expressly given to the Courts by Articles 6 and 53 to enforce the provisions of the Constitution makes reference to other approaches unhelpful. It would be wrong in principle to limit the plain terms of those articles by reference to the ancient history of a very different society, and on that account to stultify the intention of the Constitution that the Court should play a significant role in supporting the rights created by the Constitution.”
Applied in this case the evidence is overwhelmingly against the Respondents.
While the Petition in the present case were placed before the Court, the Court issued Interim Orders to maintain the status quo by keeping the First Extraordinary Session of Parliament still alive and on and reinstated the six (6) suspended Petitioners pending the outcome of the merit of the case.
Two motions were listed among other matters to be placed before the Parliament in its Second Extraordinary Session of 2001. The two motions are about the same issues which are pending before the Supreme Court. The purpose of the two (2) motions were for the Parliament to debate and decide on the breaches of Articles 22(2) and 27(1), (2) of the Constitution and also the consequent suspensions of all 27 Members of Parliament including the 6 Members of Parliament unlawfully suspended by the Speaker on 7 May 2001. The Speaker issued a statement in Parliament on 7 May 2001 and suspended six (6) Members of Parliament because he was not happy that the said members issued constitutional Petition against his decisions and also the First Respondent is not happy about the outcome of the Civil Case No.35 of 2001 against him. The Court of Appeal advised him to file a constitutional Petition if he wishes to pursue his claim, which he did.
In the present case, the Petition was filed on 7 May 2001 while the matter is pending before the Court on the question of the validity of the action of the Speaker to suspend the 6 Members of Parliament, and despite the provision of Standing Orders 34(2) which is also extended and applied to written motions under Order 35(3) of Standing Orders of Parliament, the First Respondent signed the Notice of the Second Extraordinary Session of Parliament of 2001 on 7 May 2001. The 27 Petitioners constitute/represent the majority Government in Parliament on 7 May 2001. The direct effect of this exercise is to oust the majority Government and for Parliament to elect a new Prime Minister. As it is said above, the Second Extraordinary Session of Parliament was summoned at the request of the Speaker of Parliament, the First Respondent with the support and assistance of the First and Second Deputy Speakers (Second and Third Respondents).
The whole exercise was made by the First Respondent/Speaker and his two (2) Deputy Speakers (second and third Respondents). This is so as it transpired on the Summons to convene Parliament for the Second Extraordinary Session for 2001 that the said Summons was dated 3 May 2001 but hand written corrections made to cross the date 3 replacing by (7 May 2001) and this 4 days earlier although the Summons was signed by the First Respondent on 7 May 2001.
Is the Speaker covered under Article 27(1) of the Constitution?
My answer to this question is in the negative (No).
All Members of Parliament including Hon. Paul Ren Tari as a Member of Parliament have equal rights (as the First Respondent conceded to this effect during the hearing of the case before this Court). The Hon. Paul Ren Tari as Speaker has no special immunities and privileges.
The statement read by the Speaker leading to the suspensions of the 6 members of Parliament, amount to an opinion given by the Speaker on 7 May 2001. However, that statement/opinion was not made in the exercise of legislative function of Parliament for the Speaker as a Member of Parliament to be protected under Article 27(1) of the Constitution.
Article 27(1) only protects members of Parliament when they express/give opinions or cast vote in the exercise of their legislative functions (either by enquiring into legislative acts or into the motivation for their actual performance of legislative acts) but it does not protect them from other activities they undertook that were political rather than legislative in nature. This was the situation of the statement read by the First Respondent as established by the evidence in the present case.
The First Respondent Speaker cannot claim protection under Article 27(1) of the Constitution. This is equally so for the Second and Third Respondents.
If that interpretation is wrong, because the parliamentary privilege is provided under Article 27(1) of the Constitution, then, the rights provisions under Article 5 of the Constitution must prevail if they are in conflict with Article 27(1) of the Constitution.
In my view, the First Respondent Speaker, as an officer of Parliament, could not hide behind Article 27(1) of the Constitution for his unlawful and unconstitutional actions. This is equally so for the Second and Third Respondents.
XI - THE CONSTITUTIONAL QUESTIONS (ISSUES)
I would answer the constitutional questions (issues) modified in light of these reasons as follows:
Issues for Petitioners
1) Does the First Respondent Speaker have the power to suspend and exclude six (6) Petitioners from proceedings of Parliament either for a session or a meeting?
The answer to the first constitutional question is NO. Parliament only has.
2) If the answer to question 1 is yes, in what circumstances does the Constitution permit him (R1) to exercise such power?
There is no need for me to answer question 2 in the light of my answer to question 1.
3) Did the First Respondent comply in all respects with the Standing Orders of Parliament in relation to the six (6) Petitioners?
The answer to question 3 is NO. The Speaker misinterprets and misapplies Standing Order 40 in relation to the six(6) Petitioners on 7 May 2001.
4) If the answer to question 3 is NO, then does such failure amount to, or can be taken to be or (as representing) a breach of the following constitutional rights of the six (6) Petitioners as Members of Parliament?
(a) right to attend the First Extraordinary Session of Parliament of year 2001;
(b) right to take part in the proceeding s of Parliament;
(c) right to except and be afforded protection of the law;
(d) right to a fair hearing before any disciplinary action is taken against any of the six (6) Petitioners.
The answers to question 4 are as follows:
§ 4(a) - yes;
§ 4(b) - yes;
§ 4(c) - yes;
§ 4(d) - yes.
5) At what point of the proceedings on 7 May 2001 was Parliament quorate?
The answer to question 5 is: at the beginning of the sitting of 7 May 2001 until the walking out of 20 Members of Parliament from Parliament but before the closing of Parliament.
6) At what point of the proceedings, on the 7 May 2001, Parliament was not quorate?
The answer to question 6 is: when the Speaker closed the First Extraordinary Session of Parliament on 7 May 2001, Parliament was not quorate.
7) Can the First Respondent close the First Extraordinary Session 2001 when Parliament still has business attending?
The answer to question 7 is: NO.
8) Can the First Respondent close Parliament when Parliament was not quorate?
The answer to question 8 is: NO.
9) Can the Second Respondent and the Third Respondent place before Parliament the motions 1 and 2 and in the circumstances given?
The answer to question 9 is: NO.
10) Can the First Respondent call a Second Extraordinary Session of Parliament and list therein, an opposition motion for a vote of No-confidence in the Prime Minster?
The answer to question 10 is twofold:
(a) At the request of the Speaker, my answer is: No. (as in this case).
(b) At the request of the majority of Members of Parliament: yes but (that is not the case here – quite the opposite as in(a) above).
Issues for the Respondents
1) Suspension of the Petitioners-
(a) Can the Speaker suspend Members of Parliament from Parliament and how?
(b) Can such suspensions be challenged? How?
(c) Does the suspension amount to breach of Constitution? How?
I answer to question 1 as follows:
§ 1(a) - No. Parliament only can (Standing Order 40(4)).
§ 1(b) - yes. As provided under Articles 6 and 53 of the Constitution if Standing Orders of Parliament are misinterpreted and misapplied as in this case.
§ 1(c) – yes because the effect of the suspension infringes the constitutional rights. When the Speaker misinterprets and misapplies the Standing Orders of Parliament, the effect of such misinterpretation and misapplication of the Standing Orders of Parliament which results in suspension affects the constitutional rights of a Member of Parliament in Parliament.
2) Issue of First Extraordinary Session of Parliament of 2001-
(a) Was it properly convened?
(b) Was it properly closed?
If yes – why and how?
If not – why not?
I answer the question 2 in the following way:
§ 2(a) - yes.
§ 2(b) - No. Reason: Lack of quorum.
3) Quashing of suspension by the Courts-
(a) Can the Courts/the Judiciary intervene to quash the First Respondent’s ruling to suspend?
If yes – why and how?
If no – why not?
I answer to question 3 as follows:
§ 3(a) - yes. Reasons: The misinterpretation of Standing Orders 40 by t he Speaker affects the constitutional rights of the 6 Petitioners. The Courts have the power to quash the rulings of the First Respondent/Speaker (Articles 6 and 53 of the Constitution).
4) Can the Courts/the Judiciary intervene to direct Parliament to convene or to reconvene a sitting, meeting or Session of the House?
If yes – why and how?
If no - why not?
The answer to question 4 is: yes if the closing of Parliament is done unlawfully as in this case.
5) Motion No.1
(a) Can the First Respondent suspend twenty seven (27) Members of Parliament?
(b) If the answer is yes – can such suspensions be challenged?
(c) Do such proposed suspensions amount to a breach of Constitution?
My answers to question 5 (Motion No.1) are as follows:
§ 5(a) - No. Only Parliament can (Standing Order 40(4) and on lawful grounds.
§ 5(b) - Given my answer to 5(a), it is not appropriate or necessary for me to answer 5(b).
§ 5(c) – yes. They will have the effect of denying the Petitioners their constitutional rights if carried out as planned. The rights of the petitioners are being or likely to be infringed (Article 6(1)). Parliament has no power to interpret and decide on breaches of the Constitution which constitute the ground/basis for subsequent suspension of the Petitioners as intended in the 2 Motions.
6) Motion No.2 (same question as to 5).
My answers to question 6 are the same as to question 5.
7) Can the Courts/the Judiciary intervene to cancel or invalidate the calling of a Session of Parliament which has been constitutionally and properly summoned?
If yes – why and how?
If not – why not?
I answer question 7 in this way:
In principle: No. But the circumstances of this particular case require the intervention of the Courts in order to ensure that Parliament exercises its duties and responsibilities in accordance with the Constitution. In the present case, the answer is: yes.
These are the reasons of the Orders issued by the Court on 12 May 2001.
DATED at PORT-VILA, this 23rd DAY of OCTOBER, 2001
BY THE COURT
LUNABEK Vincent
Chief Justice
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2001/113.html