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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Civil Jurisdiction
CIVIL CASE No. 35 of 2001
IN THEER OF: ARTICLES 2, 53(1) an1) and (2) OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU
(hereinafter referred to as “the Constitution”)lass="MsoNormal" aal" align="center" style="text-align:center">IN THE MATTER OF:span> SECTIONS 218 AND 219 OF THE CRIMINAL PROCEDURE CODE ACT [CAP 136], as amended
(hereinafter referred to as “the Act”)
BETWEEN:
HON. EDWARD NATAPEI, HON. SILAS HAKWA, HON. REUBEN TITEK,
HON. RIALUTH SERGE VOHOR, HON. JOE BORMAL CARLO,
HON. JACQUE 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
PetitionersAND:
HON. PAUL REN TARI,
Member of Parliament for Maewo Constituency and
Speaker of Parliament of the Republic of Vanuatu
Respondent
Coram: Chief Justice Lunabek
Counsels: Mr. Silas Hakwa & Ms Marie Hakwa for the Petitioners
Messrs John Malcolm & Ishmael Kalsakau for the RespondentDate of Hearing: 11 April 2001
Date of Judgment: 12 April 2001JUDGMENT
INTRODUCTION
Preliminary observations
It is important to bear always in mind that in Court proceedings, and in particular in Constitutional Petitions seeking declarations of rights and their effective enforcement, rules of procedure are created for a purpose: That is to assist the parties before the Court to bring and argue about the substantive action in order to obtain justice. Lawyers in this country, should endeavour to concentrate and spend most of the Court’s time in dealing with the substance of the cases rather than spending the Court’s time and expenses of the parties on the technicalities of the rules.
Nature of the application and relief sought
By Summons dated 11 April 2001 and filed on the same date, the Petitioners apply to this Court seeking for relief against the Respondent as set out in the Summons.
The Petitioners who are all 27 duly elected Members of Parliament (MP) say that on 6 April 2001, the Supreme Court gave judgment in their favour to enforce the breach of their Constitutional right by the action/decision of the Hon. Speaker of Parliament of the Republic of Vanuatu to stop the Sitting of and Closing of Parliament on 6 April 2001, the Petitioners obtain from this Court Orders and Directions as specified in the end of that judgment of 6 April 2001.
On 11 April 2001, the Petitioners return to Court and apply for other relief because they say that the breach of their constitutional right under Art.43(2) of the Constitution is not effectively enforced. The Petitioners, then, apply for:
1. The Writ of Mandamus commanding the Respondent forthwith to do and carry out the following-
(i) to summon Parliament to meet at 2.00pm o’clock in the afternoon on Wednesday the 11th day of April, 2001;
(ii) to place before the Sitting of Parliament referred to in sub-paragraph (i) of paragraph (1) above the Petitioners’ Notice and Motion of No Confidence in Honourable Barak Tame Sope Mautamate, Prime Minister, so that Parliament may debate and deal with the Motion; and
(iii) the Respondent shall allow Parliament such time as shall bell be necessary and/or required in order for Parliament to debate, vote on the Motion and attend to all other matters as specified in the said Motion.
2. An Order that any failure by the Respondent to comply in full with the terms of the Orders referred to in paragraph (1) above is and shall constitute contempt of Court;
3. An Order in the event that the Respondent fails and/or neglects to comply with the Orders referred to in paragraph (1) above, the First Deputy Speaker or in his absence, the Second Deputy Speaker, as the case may be, is commanded and ordered to carry out the terms of the Orders set out in paragraph (1) above;
4. An Order that any failure by the First Deputy Speaker or in his absence, the Second Deputy Speaker, as the case may be, to comply with the terms of the Orders set out in paragraph (1) above is and shall constitute contempt of Court;
5. Such further or other Orders as the Court shall deem fit;
6. Cost of and incidental to this application.
The Petitioners grounded their application on two reasons:
1. Because the Respondent has failed and/or neglected to comply in every respect with the Orders given by this Honourable Court on the 6 day of April 2001.
2. Because the Respondent has failed and/or neglected to comply with the terms of his own undertaking as advised to this Honourable Court by his Counsel, Mr. John Malcolm; and they say more factual details are as set out in the Affidavit of Edward Nipake Natapei filed on 10 April 2001 in support of the Summons.
The defence of the Respondent
The Respondent/Speaker responded and said in substance that he complied with Orders of this Court of 6 April 2001.
On 6 April 2001 he summoned Parliament and advised that the First Session was continued. On 6 April he reviewed Standing Order 23 which allows for debate on Written Motions on Tuesday afternoon from 16.00 to 17.00 and the matter was adjourned according to Standing Orders.
On 10 April 2001 he said he received no amendment on Motion of No Confidence. He considered Court Judgment of 6 April 2001 and in particular page 6 which read:
“The best option is for the Respondent/Speaker to adjourn for 7 days to allow the petitioners to rectify the technical irregularities so that Parliament can proceed with the first motion but not to close Parliament as he did.”
He said in accordance with such direction he adjourned 7 days until Tuesday 17 April. He also declare defunct Summons for extraordinary Session and the Motion “Second Motion” null and void. He expected the Petitioners to file amendments but instead they come to the Court.
Sequence of events
The facts as stated in the affidavit of Edward Nipake Natapei of 10 April 2001 are conceded by the Parties and are not disputed. They are as follows:
1. On Friday 6 April 2001, after the Court had delivered its Judgment on the Petitioners’ Petition, the Respondent did convene Parliament that morning.
2. At 2.00pm o’clock in the afternoon, on Friday 6th April 2001, 29 Members of Parliament representing the Opposition attended in Parliament for the sitting. According to Standing Orders the business on Friday afternoons consists of the following:
(a) 1400 – 1500 hrs – Oral questions
(b) 1500 – 1600 hrs – Statement by Members
(c) 1600 – 1700 hrs – General Debate
3. They waited until about 1450 hrs when the Respondent entered the Chambers of Parliament. At that sitting there were 29 Member of parliament on the Opposition Benches and 12 Members of Parliament on the Government Benches.
4. The Respondent himself said a prayer and then he proceeded to announce that he would suspend Parliament until Tuesday, 10 April 2001. Members of the Opposition tried to raise their hands to speak and/or to raise Points of Order but the Respondent did not give any Member any opportunity to say anything. At 4.00pm o’clock on 10 April 2001, 29 Members of Parliament representing the Opposition attended at Parliament for the Sitting.
5. The Respondent entered the Parliament Chambers at about 16.40pm. First he asked Honourable Barnabas Tabi, Minister of Internal Affairs to open the Sitting with a word of prayer.
6. Immediately after the prayer, the Respondent said words to this effect “Today hemi Tuesday, namba 10 April 2001, taem hemi 4.00pm o’clock mo hemi taem blong written motion. Bae mi ridim olsem we istap.” Thereafter the Respondent proceeded to read from a prepared text. At the end of the text the Respondent said words to this effect “Parliament now stand adjourn until 4.00 o’clock, Tuesday, 17 April 2001.” Immediately thereafter the Respondent closed the sitting. Several Members of the Opposition raised their hands to call out “Point of Order” in order to raise the attention of the Respondent to various Standing Orders of parliament but the Respondent totally ignored them. The Respondent did not permit any Member of Parliament to say anything.
7. Immediately after the Respondent had closed this Sitting on Tuesday, 10 April 2001, Hon. Edward N. Natapei requested and obtained from the Respondent a copy of the said prepared statement which the Respondent’s solicitors had prepared for the Respondent and which the Respondent had read in Parliament at this sitting. A copy of the said statement was annexed to the affidavit of Natapei and marked “Annexure 1”.
PETITIONERS’ SUBMISSION
Mr. Hakwa re-emphasizes the point of law as stated in the Court judgment of 6 April 2001 (at p.6) which reads:
“It is not for the Court to interfere in the internal arrangements of the Parliament but Members of Parliament can never act so as to deny to others (including the Speaker or other Members of Parliament) rights which are provided under the Constitution.”
The parties accepted and conceded the content of Hon. Edward N. Natapei’s affidavit of 10th April 2001. The Respondent accepts what is contained in “Annexure 1” of the said affidavit of Hon. Natapei.
Counsel for the Petitioners Mr. Silas Hakwa told the Court that what happened in Parliament since the Judgment of the Court in Civil Case 35 of 2001 on 6th April 2001 are in Hon. Natapei’s affidavit.
Mr. Hakwa said that in the last sitting of the Court on 4th April 2001 parties made various concessions. The Respondent undertook to abide the Orders of the Court. The parties went through the Motion of No Confidence in Court and rectifying wrong references, wrong numbering and cross-referencing of the Constitution and Standing Orders in the said Motion, the “First Motion”.
Mr. Hakwa said that the same complaints raised by Respondent through his counsels in the Motion and was corrected in the Court has been raised again.
The Petitioners submit that substance of the judgment of Court on 6th April 2001 is about two (2) things:
1. The Court ruled on 6th April 2001 that Notice of Motion is valid; and
2. That the Court ruled that because Parliament has valid business to deal with, the Respondent/Speaker should not close Parliament and the First Ordinary Session of Parliament for 2001 is live and still on.
Mr. Hakwa submitted that Order 5 stated:
“That an Order directed the Respondent/ Speaker forthwith to re-convene Parliament and place before the Parliament the Motion so that Parliament can debate and deal with the Motion in accordance with the law and Standing Orders of Parliament.”
Since the judgment of 6th April 2001, the Respondent was not complying with the above Order. He is taking all the steps not to follow Order 5 of the judgment. The Petitioners in their submission emphasize “forthwith” and submit to the Court the definition in three dictionaries what the term means.
RESPONDENT’S SUBMISSION
1. The Constitutional matters in the petition have been resolved by decision dated 6th April 2001.
2. It is common ground the Court has no jurisdiction over the rules and running of Parliament except where there is a constitutional encroachment.
3. In circumstances where the decision of 6/4 has been ruled upon and where the orders have been complied with it is respectfully submitted this Court has no jurisdiction to order the affairs of Parliament as is being sought in this instance.
4. In particular and in reference to Orders 2 to 5:
(a) Parliament was reconvened on the same date;
(b) The previous orders were quashed;
(c) Pursuant to the Standing Orders the matter was adjourned to the appropriate date and time.
(d) Pursuant to the directions suggested in the decisions there having been no amendment to the Motion and as directed on page 6 of the Judgement the matter was adjourned 7 days for the proper amendments.
(e) There has been no written motion pursuant to standing order 45 challenging that decision.
5. It is respectfully submitted this summons is ill conceived and is no more and no less than an attempt by some of the Members of Parliament and this in effect rule on the running and control of Parliament.
6. The Court record will show there has been no appeal filed by the Respondent nor an application for stay. The respondent having complied with his undertaking and with the Orders of the Court the Constitutional issues are resolved and the only outstanding matters are for Parliament pursuant to its Standing Orders as ruled by this Court.
7. The Respondent respectfully submits the Court ought to dismiss the Summons in its entirety.
FINDINGS OF THE COURT
By concessions of the parties in Court on 4 April 2001, the Respondent/Speaker advised and ruled that the Parliament would not debate and/or deal with the Motion because of some typing errors or incorrect references of the provisions of the Constitution in the content of the Motion of No Confidence. Upon such concessions, the irregularities on the “First Motion” were rectified in Court and by the Court. Hence the Orders issued by this Court and in particular Order 5 of the Orders of this Court of 6 April 2001 were issued to this effect.
I find that the Respondent/Speaker through his legal counsels, misread the judgment of this Court of 6 April 2001 and in particular page 6 as referred to in the Respondent’s affidavit paragraph 8. This is not a direction. This was an observation or a comment made of the best option opened to the Respondent/Speaker on 3 April 2001 instead of closing the Parliament as he did.
I find that the actions of the Respondent/Speaker by continuously adjourning Parliament without allowing the Parliament in Session to debate the Motion of No Confidence as ordered and directed by this Court, constituted tactical delays which in effect, is:
(1) unconstitutional; and
(2) in breach of Order 5 of the Orders of this Court of 6 April 2001.
This finding is finally supported by the concessions/admissions of the Respondent/by Counsel of the acceptance of the affidavit of Edward Natapei of 11 April 2001.
The particular paragraph is paragraph 13, which reads:
“The Respondent has acted in contravention of the Orders of this Honourable Court handed down on 6 April 2001, the Constitution of the Republic of Vanuatu and the Standing Orders of Parliament.
The sole reason for the Respondent’s decision and ruling is to stop the Petitioners from exercising their rights and privileges under the Constitution of the Republic of Vanuatu.”
THE LAW AND ITS APPLICATION
- The Constitutional Provisions
CHAPTER 1
THE STATE AND SOVEREIGNTY
- Republic of Vanuatu
Article 1 provides:
“The Republic of Vanuatu is a sovereign democratic state.”
- Constitution supreme law
Article 2 says:
“The Constitution is the supreme law of the Republic of Vanuatu.”
CHAPTER 2
FUNDAMENTAL RIGHTS AND DUTIES
PART I – FUNDAMENTAL RIGHTS
- Enforcement of fundamental rights
Article 6 provides:
“(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.
The Supreme Court may make orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.”
CHAPTER 8
JUSTICE
- The Judiciary
Article 47(1) provides:
“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…”.
Article 53(1) & (2) provide:
“(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.
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.”
“It is important to understand that in entertaining a Constitutional Petition and in granting relief sought under such a petition, the Supreme Court would not be interfering in any matter the exclusive province of Parliament but would be interfering and upholding the Constitution. The interpretation of the constitution and the granting of relief is self-evidently not a function of Parliament but the responsibilities entrusted to the Court by the people of this country through the Constitution.” [Emphasis added]
“It is not for the Court to interfere in the internal arrangements of the Parliament but members of Parliament can never act so as to deny to others (including the speaker or other members of Parliament) rights which are provided under the Constitution.” [Judgment of Supreme Court, 6 April 2001, pp.5-6 and The President of the Republic of Vanuatu v. Hon. Maxime Carlot Korman MP & Others in Civil Appeal Case No.8 of 1997].
Therefore, as per the Constitution, the Supreme Court of Vanuatu possessed the power to enquire into the correctness and lawfulness of legislative and administrative functions, which affect the whole Republic of Vanuatu and outsiders at large. Such power included complaints by Parliamentary Officials or employees involving allegations of grave injustice done to them by the Parliament as an institution.
The internal arrangements of Parliament belong purely to the internal administrative arrangements and functions of Parliament, such as the date the House adjourned, cost-saving measures, power to remove strangers from the House and myriad of other internal matters (powers and privileges).
The Supreme Court could, nevertheless, intervene in such matters to settle a dispute between Parliament and any aggrieved individuals who claim to have been suffered grave injustice caused by Parliament.
This means that where there is no breach of the Constitution the Courts have no power to inquire into the validity of the Legislative Assembly’s internal proceedings or the actions of Speaker or Committee Chairman in these proceedings; nor to direct the House as to the contents of its journal. [Emphasis added].
But where there is breach of a provision of the Constitution or the infringement of a constitutional right, the Supreme Court has the power to effectively enforce/remedy the breach of the constitutional provision (Article 53) or the constitutional right (Article 6). The Supreme Court is then duty bound to interfere and uphold the constitution. [Emphasis added].
[See two Tongan cases reported in the Commonwealth Law Bulletin (1987) Vol. 13 No.4 pp.1248 and 1249, which allow enquiry into the internal proceedings of Parliament as an exception to the Common law rule where there has been a breach of the Constitution and see also the decision of the High Court of Solomon Islands in Penny Philip v. The Speaker of Parliament in Civil Case No.224 of 1990 at pp.4, 5, 7,8].
In this sense, therefore, Orders of certiorari, mandamus and prohibition may be issued against any Parliamentary Committee or the actions of the Speaker of Parliament which contravene the rights protected and guaranteed under the Constitution.
[See Vanuatu Supreme Court Case No.126 of 1996 Willie Jimmy & Others v. Edward Natapei].
[See also the decision of the High Court of Zambia in M’membe and Another v. Speaker of National Assembly and Others (1996) 1LRC 584 (H.C.) and reported in Commonwealth Law Bulletin, (1997) Vol.23, pp.114, 115, 116].
On the basis of the above considerations, then, the Court grants the relief sought by the Petitioners in the Summons of 11 April 2001.
The Court makes the following ORDERS and DIRECTIONS:
1. THAT the Writ of Mandamus commanding the Respondent forthwith to do and carry out the following:
(i) to summon Parliament to meet at 6.00pm o’clock in the afternoon on Thursday the 12th day of April, 2001;
(ii) to place before the Sitting of Parliament referred to in sub-paragraph (i) of paragraph (1) above the Petitioners’ Notice and Motion of No Confidence in Honourable Barak Tame Sope Mautamate, Prime Minister, so that Parliament may debate and deal with the Motion; and
(iii) the Respondent shall allow Parliament such time as shall be necessary and/or required in order for Parliament to debate, vote on the Motion and attend to all other matters as specified in the said Motion.
2. THAT any failure by the Respondent to comply in full with the terms of the Orders referred to in paragraph (1) above is and shall constitute contempt of Court;
3. THAT in the event that the Respondent fails and/or neglects to comply with the Orders referred to in paragraph (1) above, the First Deputy Speaker or in his absence, the Second Deputy Speaker, as the case may be, is commanded and ordered to carry out the terms of the Orders set out in paragraph (1) above;
4. THAT any failure by the First Deputy Speaker or in his absence, the Second Deputy Speaker, as the case may be, to comply with the terms of the Orders set out in paragraph (1) above is and shall constitute contempt of Court;
5. THAT in the event that a Committal for Contempt is required, then, application by Motion with supporting affidavits be filed immediately to the Supreme Court so that this Court or another Judge of the Supreme Court will deal with the matter as a matter of urgency;
6. THAT the costs of and incidental to this application are awarded in favour of the Petitioners and to be paid by the Respondent. The costs will be taxed failing agreement.
DATED at PORT-VILA, this 12th DAY of APRIL, 2001
BY THE COURT
LUNABEK Vincent
Chief Justice
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