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Kilman v Moli; Vohor v Attorney General [2004] VUSC 16; Civil Case 221 of 2004 (7 December 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)


Civil Case No. 221 of 2004.


BETWEEN:


HON. SATO KILMAN, MP for Malekula and Leader of Opposition
and 34 Honourable Members of Parliament
Applicants


AND:


THE HON. JOSIAS MOLI,
Speaker of Parliament
Respondent


Civil Case No. 223 of 2004.


BETWEEN:


HON. SERGE VOHOR,
Prime Minister of Vanuatu (MP)
Applicant


AND:


THE ATTORNEY GENERAL
First Respondent


AND:


THE HON. JOSIAS MOLI,
Speaker of Parliament
Second Respondent


AND:


HON. SATO KILMAN, MP for Malekula and Leader of Opposition
and 18 others members of Parliament


Counsels: Mr. Ronald Warsal for the Applicant in CC 221/04
Mr. Dudley Aru and Mr. Frederick Gilu for the State Law Office for the First Respondent in CC 223/04
Mr. Bill Bani and Mr. James Tari for the Second Respondent in CC 223/04 and the Respondent in CC 221/04
Mr. Ishmael Kalsakau for the Third Respondents in CC 223/04 and the Applicants in CC 221/04


Hearing Date: 5 December 2004
Judgment Date: 7 December 2004


JUDGMENT


INTRODUCTION: NATURE OF APPLICATION AND RELIEF SOUGHT


Before me are two (2) Constitutional Applications. The first constitutional application is filed by Mr. Kalsakau on 3rd December 2004 on behalf of 35 Applicants/Members of Parliament against the Speaker of Parliament in Civil Case No. 221 of 2004. The second constitutional application is filed by Mr. Ronald Warsal on 3rd December 2004 o behalf of the Applicant/Prime Minister of Vanuatu against the Attorney General, the Speaker of Parliament and some of the members of Parliament in Civil Case No. 223 of 2004.


In Civil Case No. 221, the Applicants apply for the following declarations and/or orders:-


“1. That the Speaker of Parliament is served a valid Notice of Motion and Motion of No Confidence against the incumbent Prime Minister of Vanuatu dated the 23rd November 2004;


  1. That the Speaker has on the 24th November 2004 ruled the Notice and Motion of no confidence complies with the provisions of Article 43 of the Constitution and has validly included the motion on the list of Agenda for the sitting of the Second Ordinary Session commenced the 30th November 2004 for the sitting of Thursday 2nd December 2004;
  2. The decision of the Speaker to adjourn the proceedings of parliament on 2nd December 2004 is infringing upon the rights of the Applicants under Article 43 (2) of the Constitution;
  3. That the Speaker of Parliament reconvene Parliament immediately forthwith for Parliament to continue its debate on the Motion of no confidence listed for debate on the 2nd December 2004;
  4. Costs;
  5. Such further and/or other declaration or Orders the Court may be pleased to make;

UPON THE GROUNDS


  1. Thirty five members of Parliament have declared their willingness to debate the motion of no confidence;
  2. Once the Speaker of Parliament receives a notice of and motion of no confidence and places the motion of no confidence before Parliament it is for Parliament to debate and dispose of it and the Speaker is not competent to preclude a debate on the motion of no confidence.
  3. The Applicants contend the Respondent has withdrawn his acceptance of the Notice of motion taking into account irrelevant considerations.
  4. The withdrawal of the Notice by the Respondent does not affect the Motion validly before Parliament for debate.
  5. As further espoused in the Sworn Statements of Sato Kilman and the other Applicants filed therein.”

The Applicants in Civil Case No. 221 of 2004 rely on Article 43 (2) of the Constitution which provides as follows:-


“Collective Responsibility of Ministers and Votes of No Confidence


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


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


In Civil Case No. 223 of 2004, the applicant/Prime Minister of Vanuatu applies for the following declarations and/or orders:-


“1. That the Speaker of Parliament was served an invalid Notice of Motion and Motion of No Confidence against the Applicant, the Prime Minister of Vanuatu dated 23rd November 2004;


  1. That the Speaker of Parliament erred in accepting the Notice of Motion and Motion of No Confidence dated November 23, 2004 to be debated in Parliament on December 2, 2004;
  2. That amendments to Article 43 of the Constitution of the Republic of Vanuatu has been duly passed by Parliament and be given legal effect;
  3. That the Notice of Motion and the Motion of no confidence dated November 23, 2004 there does not comply with the provisions of the amended Article 43 of the Constitution;
  4. That the Speaker of Parliament be restrained hereinafter from putting the Motion of no confidence on the list of agenda for the Ordinary Session of the Parliament pending the outcome of this Application;
  5. The earlier decision of the Speaker of Parliament to allow Parliament to debate the motion and motion of no confidence on December 2, 2004 infringed the rights of the Applicant under the amended Article 43 of the Constitution;
  6. Such further and/or other declaration or orders the Court may be pleased to make.

UPON THE GROUNDS


  1. The amended Article 43 of the Constitution prohibits and protects the rights of the Applicant for moratorium period of 12 months and the Speaker of Parliament was therefore not allowed to accept any motion of no confidence for the period stated therein;
  2. The acceptance by the Speaker of Parliament of the Motion tabled for debate in Parliament thereby infringed upon the rights of the Applicant;
  3. Further grounds to be contained in the Sworn Statement of the Hon. Rialuth Serge Vohor to be filed within 7 days of the filing of this Application; and
  4. Any other grounds to be advanced by counsel. “

The applicant in Civil Case No. 223 of 2004 relies on Article 43 (2) as Amended by the Constitutional (Fourth Amendment) Act No. 1 of 2004 which provides as follows:-


“Article 43 (2)


Before “Parliament” (first occurring), substitute “Subject to subarticle (3)”.


At the end of Article 43


Add


“(3) Parliament shall not pass a motion of no confidence in the Prime Minister:-


(a) within 12 months of a general election following a dissolution under subarticle 28 (2) or (3); or

(b) within 12 months of any other general election; or

(c) within 12 months of the formation of any Government; or

(d) within 12 months before the end of the life of a Parliament.”

It transpires from both applications that they are dealing with the same subject-matter, same parties, involving the legislative and executive arms of the Republic and raising fundamental constitutional and legal issues warranting for urgent consideration and determination.


The resolution of these matters will have a detrimental effect on one and/or the other application. On that basis, the first application is adjourned pending the determination of the issues raised in the application in Civil Case No. 223 of 2004.


HEARING OF CONSTITUTIONAL APPLICATION IN CIVIL CASE No. 223 OF 2004


Counsel for the respondents in Civil Case No. 223 of 2004 are required to file and serve responses and submissions before the hearing date on Saturday 5th December 2004.


The hearing took place on Saturday 5 December 2004 at 10 a.m. as a matter of urgency because of the reasons mentioned above.


ISSUES


The issues for the Court to determine are as follows:-


  1. Whether the Constitutional (Fourth Amendment) Act No. 1 of 2004 items 3 and items 4 fall within the interpretation of “Parliamentary system” under Article 86 of the Constitution?
  2. If the answer to question 1 is in the affirmative (yes) whether items 3 and 4 of the Constitutional Amendment No. 1 of 2004 are enforceable;
  3. If the answer to question 2 is in the negative (no) what would be its effect in the light of a presidential assent to the Constitutional Amendment Act No. 1 of 2004 and the publication of such constitutional amendment Act No. 1 of 2004.

BACKGROUND INFORMATION


The following constitute brief background information leading up to the two (2) applications before the Court:-


  1. On or about 18 October 2004, Parliament passed a Bill for the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  2. The Bill was voted by 50 out of the 52 Members of Parliament on 18 October 2004;
  3. The Bill for Constitutional Amendments were votes by the Third Respondents after they obtained assurance from the Applicant/Prime Minister that the amendments would not come into effect until they had acquired the support of a national referendum;
  4. On the 23rd November 2004, 18 Members of Parliament served upon the Speaker of Parliament a Notice of Motion and a Motion of no confidence written in English and French languages.
  5. On 24th November 2004 the Speaker of Parliament accepted the Motion of no confidence filed by the 35 Members of Parliament against the incumbent Prime Minister in compliance with Article 43 (2) of the Constitution and included the Motion on the list of Agenda for the sitting of Thursday 2 December 2004;
  6. On the morning of the 2nd December 2004 Parliament met, there was quorum as Parliament met to continue the business in Parliament second ordinary session which was commenced on 30th November 2004;
  7. In Parliament 35 Members of Parliament on the opposition side and 14 Members of Parliament on the government side were present;
  8. After the opening prayer, the Prime Minister addressed the Speaker disclosing the lack of Members of Parliament on Government side and requested that Parliament adjourned until that afternoon;
  9. The Speaker adjourned Parliament to 4 p.m. in the afternoon of the same day (2 December 2004);
  10. When Parliament resumed at 4 p.m. that afternoon, the Members of Parliament sitting either side remain unchanged;
  11. The Speaker entered Parliament Chambers and proceeded to read a statement in English;
  12. The effect of what he read was that he was withdrawing his acceptance of the Notice of Motion and that he was going to refer the matter for adjudication by the Judiciary;
  13. The reason being that there may be a discrepancy on the application of Article 43 of the Constitution given that Parliament had very recently passed the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  14. On 12th November 2004, the President of the Republic assented to the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  15. On 15th November 2004, the Attorney General advised the office of the Prime Minister is writing that it is his opinion that the State Law Office should only gazette and bring into force items 1 and 2 of the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  16. On 16th November 2004, the Office of the Prime Minister expressly says that items 3 and 4 of the Constitutional (Fourth Amendment) Act No. 1 of 2004 may need to go for a referendum;
  17. On 17th November 2004, the Attorney General, pursuant to the instructions from the Prime Minister’s Office dated 16th November 2004, gazetted the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  18. Upon the gazettal of the Constitutional (Fourth Amendment) Act No. 1 of 2004 and pursuant to his advise to the office of the Prime Minister, the Attorney General published in the Official Gazette a public notice saying the gazettal of the Act only brings into force items 1 and 2 of the Act. Items 3 and 4 will only come into operation when supported by a national referendum pursuant to Article 86 of the Constitution;
  19. On 3rd December 2004, the 35 applicants/Members of Parliament filed their constitutional application in Civil Case No. 221 of 2004 against the Speaker of Parliament.
  20. On 3rd December 2004 in the afternoon, the applicant/Prime Minister of Vanuatu, filed his constitutional application in Civil Case No. 223 of 2004 against the Attorney General, the Speaker of Parliament and the Third Respondents (18 Members of Parliament).

The relief sought in the application in Civil Case No. 223 of 2004 are set out earlier.


They are reproduced below:-


“1. That the Speaker of Parliament was served an invalid Notice of Motion and Motion of No Confidence against the Applicant, the Prime Minister of Vanuatu dated 23rd November 2004;


  1. That the Speaker of Parliament erred in accepting the Notice of Motion and Motion of No Confidence dated November 23, 2004 to be debated in Parliament on December 2, 2004;
  2. That amendments to Article 43 of the Constitution of the Republic of Vanuatu has been duly passed by Parliament and be given legal effect;
  3. That the Notice of Motion and the Motion of no confidence dated November 23, 2004 there does not comply with the provisions of the amended Article 43 of the Constitution;
  4. That the Speaker of Parliament be restrained hereinafter from putting the Motion of no confidence on the list of agenda for the Ordinary Session of the Parliament pending the outcome of this Application;
  5. The earlier decision of the Speaker of Parliament to allow Parliament to debate the motion and motion of no confidence on December 2, 2004 infringed the rights of the Applicant under the amended Article 43 of the Constitution;
  6. Such further and/or other declaration or orders the Court may be pleased to make.

UPON THE GROUNDS


  1. The amended Article 43 of the Constitution prohibits and protects the rights of the Applicant for moratorium period of 12 months and the Speaker of Parliament was therefore not allowed to accept any motion of no confidence for the period stated therein;
  2. The acceptance by the Speaker of Parliament of the Motion tabled for debate in Parliament thereby infringed upon the rights of the Applicant;
  3. Further grounds to be contained in the Sworn Statement of the Hon. Rialuth Serge Vohor to be filed within 7 days of the filing of this Application; and
  4. Any other grounds to be advanced by counsel. “

The Applicant filed a sworn statement dated 4th December 2004 in support of it.


RESPONSES


The First Respondent, Attorney General responded to the application in Civil Case No. 223 of 2004 as follows:-


“1. On 11th August 2004 the Attorney General provided a written advice to the Hon. Barak T. Sope the Minister for Foreign Affairs that a bill to amend Article 43 of the Constitution would need to be supported by a national referendum;


  1. On the 15th November 2004 the Attorney General in writing advised the office of the Prime Minister that it is the opinion of the Attorney General that the State Law Office should only gazette and bring into force items 1 and 2 of the constitutional (Fourth Amendment) Act No. 1 of 2004;
  2. On 16th November 2004, the first respondent received written instructions from the Office of the Prime Minister to Gazette the Constitutional (Fourth Amendment) Act No. 1 of 2004;
  3. The written instructions from the Office of the Prime Minister expressly, as advised by the Attorney General, says items 3 and 4 of the Constitutional (Fourth Amendment) Act No. 1 of 2004 may need to go for a referendum;
  4. On the 17th November 2004, the Attorney General, pursuant to the instructions from the Prime Ministers Office dated 16th November 2004, gazetted the Constitution (Fourth Amendment) Act No.1 of 2004;
  5. Upon the gazettal of the Constitution (Fourth Amendment) Act No. 1 of 2004 and pursuant to the Attorney General’s advice to the Prime Ministers office, the Attorney General published in the official Gazette a public notice saying the gazettal of the Act only brings into force items 1 and 2 of the Act. Items 3 and 4 will only come into operation when supported by a national referendum pursuant to Article 86 of the Constitution;

Therefore the first respondent seeks orders as follow:-


  1. That the advice of the Attorney General to the Hon. Barak T. Sope dated 11th August 2004, and to the Prime Minister dated 15th November 2004 on the gazettal and operation of the Constitutional (Fourth Amendment Act) is pursuant to Article 86 of the Constitution;
  2. That to allow items 3 and 4 of the Constitutional Amendment Act to come into operation without a national referendum would be contrary to Article 86 of the Constitution;
  3. That the Attorney General’s Public Notice in the Official Gazette concerning the operation of the Constitutional Amendment Act upholds Article 86 of the Constitution;
  4. The gazettal of the Constitutional (Fourth Amendment) Act does not bring into effect items 3 and 4 of the Act;
  5. That for items 3 and 4 of the Act to come into effect, they need to be supported by a national referendum pursuant Article 86 of the Constitution;
  6. Any other orders the Court deems appropriate.”

The First Respondent, Attorney General filed a sworn statement dated 4th December 2004 in support of his response to this application.


The Second Respondent, Hon. Speaker of Parliament filed no response to the application in Civil Case No. 223 of 2004 but his counsel filed submissions which will be considered at a later stage.


The Second Respondent Speaker filed a sworn statement dated 4th December 2004 in support of his position.


The Third Respondents filed the following response to the application:-


“The Third Respondents deny the applicant is entitled to the declarations and/or orders sought by his Constitutional Application and in respect of each of the orders/declarations sought the Third Respondents say:-


(1) The motion served with Speaker was not invalid but in accordance with law;

(2) The Speaker did not err in accepting the Notice and Motion as it was validly served and furthermore when he accepted the motion it became a matter for Parliament alone;

(3) Notwithstanding its passage in Parliament no legal effect can be given thereto;

(4) Given the unenforceability and unconstitutionality of the Amendment the Motion remains valid and Article 43 (2) applies;

(5) No restraint can be sought against the Speaker in relation to the Notice and Motion of no confidence as there is no impediment upon Parliament to debate the said Motion of no confidence;

(6) No infringement lies against the Applicant Prime Minister;

AND IN RESPONSE TO THE GROUNDS ESPOUSED the Third Respondents say:-


(1) The Amended Article 43 is unenforceable until approved by a national referendum in accordance with Article 86 of the Constitution and no impediment lies against the Speaker’s acceptance of the said Notice and Motion of no confidence;

(2) The Amended Article 43 infringes more against the fundamental rights of the majority of Parliament as guaranteed by Article 5 of the Constitution in particular;

5 (1) (d) The right to protection of the law;

5 (1) (g) The right to freedom of expression;

5 (1) (h) The right of freedom of association;

5 (1) (i) The right of freedom of movement.


And their rights under Vanuatu’s Parliamentary System to express non confidence against the Government of the day.


(3) No infringement lies against the Applicant as the Amended Article 43 remains unenforceable.”

Hon. Sato Kilman MP and leader of the Opposition filed a sworn statement in support of their response to this application.


THE LAW


  1. Relevant Provisions of the Constitution

“Chapter 1

The State and Sovereignty


Republic of Vanuatu


  1. The Republic of Vanuatu is a sovereign democratic state.

Constitution Supreme Law


  1. The Constitution is the supreme law of the Republic of Vanuatu.

Fundamental Duties


  1. Every person has the following fundamental duties to himself and his descendants and to others –

Fundamental Duties Non-justiciable but Public Authorities to Encourage Compliance


  1. Except as provided by law, the fundamental duties are non-justiciable. Nevertheless it is the duty of all public authorities to encourage compliance with them so far as lies within their respective powers.

Parliament


  1. The legislature shall consist of a single chamber which shall be known as Parliament.

Power to make laws


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;


(3) When a bill has been passed by Parliament it shall be presented to the President of the Republic who shall assent to it within 2 weeks.

...


Life of Parliament


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


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


(3) The President of the Republic may, on the advice of the Council of Ministers, dissolve Parliament;


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


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


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.


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.


AMENDMENT OF THE CONSTITUTION


Bills for Amendment of Constitution


84. A bill for an amendment of the Constitution may be introduced either by the Prime Minister or any other member of Parliament;


Procedure for Passing Constitutional Amendments


85. A bill for an amendment of the Constitution shall not come into effect unless it is supported by the votes of no less than two-thirds of all the members of Parliament at a special sitting of Parliament at which three-quarters of the members are present. If there is no such quorum at the first sitting, Parliament may meet and make a decision by the same majority a week later even if only two-thirds of the members are present.


Amendments Requiring Support of Referendums


86. A bill for an amendment of a provision of the Constitution regarding the status of Bislama, English and French, the electoral system, or the parliamentary system, passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum.


2. Relevant Legislative Provisions


A. Acts of Parliament [CAP. 116]


The Assent


9. (1) The President shall show that he assents to a Bill by signing on each copy prepared in accordance with section 4 a statement to that effect in the form set out in Schedule 3;


(2) A Bill shall become an Act of Parliament on the signing by the President of the assent on the first of the copies.


Publication


8. Every Act shall be published as soon as practicable after the President’s assent with –


(a) the omission of the statements contained in the original copies by virtue of the provisions of sections 4 and 5 of this Act;


(b) a statement of the date on which the President’s assent was signified, and the date of commencement contained in the margin thereof.


Commencement


10 (1) Subject to the provisions of this section, commencement of an Act shall be such date as is provided in or under the Act, or where no date is so provided, the date of its publication as notified in the Gazette;


(2) Every Act of Parliament shall come into force immediately on the expiration of the date next preceding its commencement;


(3) A provision in an Act regulating the coming into force of an Act or any part thereof shall have effect notwithstanding that the part of the Act containing the provision has not come into operation;


(4) Where an Act is made with retrospective effect the commencement of the Act shall be the date from which it is given or considered to be given such effect;


(5) The provisions of subsection (4) shall not apply to an Act until there is notification in the Gazette as to the date of its publication and until date is specified the Act shall be without effect.


Certification of Special Votes and Referendums


13 (1) Where the Constitution requires that a Bill is passed by Parliament after being supported by a special majority with a special quorum present or with such requirements and supported by a national referendum the Speaker, or the Deputy Speaker if the Speaker is absent or otherwise unable to act shall, before the Bill is presented to the President for his assent, certify in whatever form he considers appropriate that the Bill was passed after having been so supported and with such special quorum or with those requirements and the support of a national referendum.


(2) A copy of the certificate given under subsection (1) signed by the Speaker or the Deputy Speaker, as the case may be, shall be prima facie evidence of the facts stated therein.


B. INTERPRETATION ACT [CAP. 132]


Acts Subordinate to the Constitution


9. (1) Every Act shall be read and construed subject to the Constitution and where any provision of an Act conflicts with a provision of the Constitution the latter provision shall prevail;


(2) Where a provision in an Act conflicts with a provision in the Constitution the Act shall nevertheless be valid to the extent that it is not in conflict with the Constitution.


SUBMISSIONS


Counsel for the Applicant submitted in substance as follows:-


The Applicant relies on the Constitutional (Fourth Amendment) Act No. 1 of 2004. That Act has received the President’s assent and thereby has become an Act of Parliament. It must commence upon the notification in the Gazette. As a valid Act of Parliament, it must be enforced. They say there is no need to examine or interpret any articles of the Constitution to give effect to this Act of Parliament.


It is also submitted for the Applicant that if the Court is against them on the first argument, they can only proceed to examine if Article 86 of the Constitution applies to the Applicant's case.


It is said Article 84 to 86 relates to a bill for amendment of the Constitution. This means that Parliament cannot proceed to remove a motion for a bill to be passed in certain cases unless Article 86 applies. It is said that Bill has now became an Act of Parliament .


What this Court may wish to look at is whether the amended Article 43 comes within the ambit of Article 86 by falling within the interpretation of “parliamentary system” therein.


They further say that what is clear is that Article 84 to 86 of the Constitution does contemplate a situation that certain amendments to the Constitution does not require public referendum.


Counsel for the Applicant further submitted that Article 43 (as amended) does not take away any right of the Parliament to remove the Prime Minister. It seeks, for all intents and purposes, to regulate for reasons of good order and accountability, when this right should be exercised. Basically, Parliament can still pass a motion of no confidence against the Prime Minister but that cannot be prematurely executed.


They further say that Parliament is not rid if its entrenched rights to remove the Prime Minister. All Parliamentarians except a deliberated and voted this amendment upon without the need for a public referendum. They are not wrong if everyone thought fit there was no need for a public referendum.


Counsel for the Applicants, also challenge the power of the Attorney General to selectively gazette parts of an Act of Parliament. They say the Attorney General’s role to gazette is purely administrative in that it decides the commencement date of the said Act of Parliament in pursuant to the Acts of Parliament [CAP. 116].


They finally submitted that the First Respondent, Attorney General, acted ultra vires in putting a caveat to Constitutional Amendment Act No. 1 of 2004 by declaring that the amended article 43 is not to come into operation.


They further say that the Second Respondent, Speaker of Parliament was correct to have retracted his position rejecting the motion of no confidence against the Prime Minister by virtue of the amended Article 43.


Counsel for the Second Respondent submitted to the same effect as counsel for the Applicant. They say a Bill of the Constitutional (Fourth Amendment) Act No. 1 of 2004 has been gazetted and became the Constitutional (Fourth Amendment) Act No. 1 of 2004. This defeats the purpose of Article 86 which requires a national referendum. They submitted that the Constitutional (Fourth Amendment) Act No. 1 of 2004 does not alter the parliamentary system of Vanuatu as provided under Article 15 of the Constitution.


They further provide details submissions on section 10 of the Acts of Parliaments Act [CAP. 116]. Finally, they submitted that the Constitutional (Fourth Amendment) Act No. 1 of 2004 came into force on the date of its published in the Gazette which was 17th November 2004 and applied retrospectively to item 4 on the 6th July 2004 general election.


Counsel for the First Respondent submitted as follow:-


They query whether or not the Constitutional (Fourth Amendment) Act No. 1 of 2004 items 3 and 4 are enforceable.


They submitted that although the Act provides that it comes into force on the date on which it is published in the Gazette, Article 86 is still in operation and requires items 3 and 4 to be supported in a national referendum before it can come into effect.


They submitted that Article 86 of the Constitution provides for three matters which must go to a referendum:-


They say items 3 and 4 of the Constitutional (Fourth Amendment) Act No. 1 of 2004 are matters which affect the status of the Parliamentary system as is entrenched in the Constitution.


They submitted therefore that Article 86 is quite clear that any amendment regarding the status of the parliamentary system as is currently provided for in the Constitution must be supported in a national referendum.


They say further that a bill becomes an Act of Parliament on the signing by the President (section 5 (2) of the Acts of Parliament Act [CAP. 116].


Section 13 (1) of the Acts of Parliament Act provides for certification of special votes and referendums. They submitted therefore that Section 13 of the Act should be read in conjunction with Article 86 of the Constitution.


The effect of both provisions is that once the Bill is passed, before being presented to the President, the Speaker must certify that the Bill was supported by a national referendum. They say there is no evidence before the Court that his was done. They submitted that such a bill should not be forwarded to the President until a referendum has been held to support the Bill.


As to the gazettal of the Constitutional (Fourth Amendment) Act No. 1 of 2004, counsel for the First Respondent say once a Bill is assented to by the President the Bill is then sent by the clerk of Parliament to the State Law Office of await gazettal of the Act. The State Law Office does not gazette Laws on its own initiative. It has been the accepted practice since independence that the State Law Office only gazettes Act when the gazettal officer receives instructions from the Minister responsible to gazette the Act.


They further say that section 3 of the Constitutional (Fourth Amendment) Act No. 1 of 2004 provides that the Act comes into force on the date on which it is published in the gazette. Following instructions received from the office of the Prime Minister and in line with the standard practice, the Act was gazetted.


They further say that with the gazettal, the Attorney General put out the Public Notice in the Official Gazette No. 6 of 2004 stating that the gazettal only brings into force items 1 and 2 and not items 3 and 4 of the Constitutional (Fourth Amendment) Act No. 1 of 2004.


They finally say that as the Principal Legal Advisor to the Government, the Attorney General must uphold the Constitution at all times therefore it was his duty to ensure that the public was informed on the application of the new Act. The Attorney General put out the Notice to uphold Article 86 of the Constitution which requires items 3 and 4 to be supported in a national referendum in order for the items (3 and 4) to come into force.


Counsel for the Third Respondents submitted as follow:-


The Third Respondents deny the Applicant is entitled to the declarations and/or orders sought by his constitutional application.


In respect to the orders/declarations sought, the Third Respondents say:-


Counsel submitted in essence that the Amended Article 43 is unenforceable until approved by a national referendum in accordance with Article 86 of the Constitution and no impediment lies against the Speaker’s acceptance of the said Notice and Motion of no confidence.


It is also submitted that the Amended Article 43 infringes more against the fundamental rights of the majority of Parliament as guaranteed by Article 5 of the Constitution in particular:-


5 (1) (d) the right to protection of the law;

5 (1) (g) the right to freedom of expression;

5 (1) (h) the right to freedom of association;

5 (1) (i) the right to freedom of movement.


Finally, it is said the Amended Article 43 of the Constitution infringes the right of the majority of Parliament under Vanuatu’s Parliamentary system to express non confidence against the government of the day in a regulated manner.


There is no infringement lies against the Applicant as the Amended Article 43 remains unenforceable.


COURT CONSIDERATIONS


Chapter 14 of the Constitution sets out the relevant provisions and the procedure for passing constitutional amendments and the constitutional amendments requiring support of referendum. The relevant provisions are set out below:-


“Amendment of the Constitution


Bills for the Amendment of Constitution


  1. A bill for an amendment of the Constitution may be introduced either by the Prime Minister or any other Member of Parliament.

Procedure for Passing Constitutional Amendments


  1. A bill for an amendment of the Constitution shall not come into effect unless it is supported by the votes of no less than two-thirds of all the members of Parliament at a special sitting of Parliament at which three-quarters of the members are present. If there is no such quorum at the first sitting, Parliament may meet and make a decision by the same majority a week later even if only two-thirds of the members are present.

Amendments Requiring Support of Referendums


  1. A bill for an amendment of a provision of the Constitution regarding the status of Bislama, English and French, the electoral system, or the parliamentary system, passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum.”

Article 86 of the Constitution provides, among other matters, that a bill for an amendment of a provision of the Constitution regarding the status of ... “the parliamentary system” passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum.


Is Article 43 (2) (as amended) by the Constitutional (Fourth Amendment) Act No. 1 of 2004 items 3 and 4 of the Amendment Act – fallen within the interpretation of “Parliamentary system” under Article 86 of the Constitution?


Article 43 of the Constitution provides for the collective responsibility of Ministers before Parliament and votes of no confidence in the Prime Minister in Parliament.


Article 43 is the backbone of the parliamentary system of government as set out in the Constitution.


The power of the President to dissolve Parliament under Article 28 of the Constitution constitutes the other component of the parliamentary system of government and its natural consequence that follow in the event Article 43 cannot operate in such a Parliamentary system of government.


As such Article 43 (2) of the Constitution (as amended) falls within the interpretation of Parliamentary system under Article 86 of the Constitution.


The words of Article 43 are clear.


Article 43 says:-


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


The procedure for Article 43 (1) is set out under Article 43 (2) (as amended).


As such, the Constitutional (Fourth Amendment) Act No. 1 of 2004 is subject to Article 86 of the Constitution. It requires a national referendum before it be enacted and published in the Official Gazette.


Article 86 of the Constitution requires that a bill for an amendment of a provision of the Constitution regarding the status of “the Parliamentary system”, passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum.


It is said for the Applicant that the amendment of Article 43 (2) do not affect the right of the Members of Parliament to remove a Prime Minister. Article 43 (2) as amended regulate the time frame of such exercise.


If that being so, the amended Article 43 (2) affects the right of majority of the Members of Parliament under Article 43 of the Constitution to exercise such right at any time warranted for such a purpose. If any change or amendment to Article 43 (2) is needed, such amendment falls within the interpretation of “Parliamentary system” under Article 86 of the Constitution and must be made in accordance with the Constitution.


The submissions of counsel on behalf of the Applicant and the Second Respondent must fail and are rejected on that ground.


I now go to the next question which is whether Article 43 (2) (as amended) by the Constitutional (Fourth Amendment) Act No. 1 of 2004 items 3 and 4 of the Act, is enforceable.


The Constitutional (Fourth Amendment) Act No. 1 of 2004 items 3 and 4 are in conflict and in breach of Article 86 of the Constitution.


The Constitution is the Supreme Law of Vanuatu (Article 2). In the event of a conflict between a provision of an Act of Parliament and a provision of the Constitution, the Constitution must prevail.


This is spelt out under section 9 of the Interpretation Act [CAP. 132].


Section 9 of the Act says:-


“(1) Every Act shall be read and construed subject to the Constitution and where any provision of an Act conflicts with a provision of the Constitution, the latter provision shall prevail.”


It follows that Article 43 (2) (as amended) by the Constitutional (Fourth Amendment) Act No. 1 of 2004 in items 3 and 4, is not enforceable and cannot be enforced.


The submissions put on behalf of the First and Third Respondents must be accepted to this effect.


The last question for consideration is what would be the effect of the Article 43 (2) (as amended) in the light of the presidential assent to the Constitutional (Fourth Amendment) Act No. 1 of 2004 and the publication of such an Act.


Counsel for the Applicant and the Second Respondent submitted that the Constitutional (Fourth Amendment) Act No. 1 of 2004 was signed by the President on 12 November 2004 and published in the Official Gazette on 17 November 2004 and come into force on 17 November 2004, which is the date of its publication in the Gazette.


There is no dispute as to the validity of the Constitutional (Fourth Amendment) Act No. 1 of 2004 although substantial part of the submission time by counsel were made on that point.


What was in dispute is the enforceability of Article 43 (2) (as amended) in items 3 and 4 of the Constitutional (Fourth Amendment) Act No. 1 of 2004 and its constitutionality in respect to Article 86 of the Constitution.


The answer to the problem is provided under section 9 (2) of the Interpretation Act [CAP. 132].


Section 9 provides:-


“(2) Where a provision in an Act conflicts with a provision in the Constitution the Act shall nevertheless be valid to the extent that it is not in conflict with the Constitution.”


The effect of the Presidential assent and publication of the Constitutional (Fourth Amendment) Act No. 1 of 2004 is that this Act must be read down to the extent of its validity.


This means that although the Constitutional (Fourth Amendment) Act No. 1 of 2004 is valid and enforced, the Amended Article 43 (2) of the Constitution has no effect until the defects are cured in accordance with the relevant provisions of the Constitution.


Counsel for the Applicant and the Second Respondents submitted virulently against the manner in which the Attorney General selectively issue the publication and the gazettal of parts of the Constitutional (Fourth Amendment) Act No. 1 of 2004. In particular the public notice issued by the Attorney General to the effect that Article 43 (2) (as amended) by the Act items 3 and 4 are not enforceable as they require the support of a national referendum.


In general, there is no power for the Attorney General to do so as spelt out in an Act.


However, such notice does not take away the enactment of the provisions of the Constitutional (Fourth Amendment) Act No. 1 of 2004. Its very purpose is to inform the public about a likelihood of a breach of the provisions of the Constitution. The Attorney General is duty bound to uphold the Constitution which was what he did by the issuance of the Notice in the Official Gazette in accordance with Article 8 of the Constitution.


On the basis of the foregoing considerations, the Court makes the following DECLARATIONS AND/OR ORDERS:-


  1. In relation to the Declarations and/or Orders sought by the Applicant
    1. That the Speaker of Parliament was served and invalid Notice of Motion and Motion of No Confidence against the Applicant, the Prime Minister of Vanuatu dated the 23rd November 2004, is refused;
    2. That the Speaker of Parliament erred in accepting the Notice of Motion and Motion of No Confidence dated November 23, 2004, to be debated in Parliament on December 2, 2004, is refused;
    3. That amendments to Article 43 of the Constitution of the Republic of Vanuatu has been duly passed by Parliament and be given legal effect. Yes, it is duly passed by Parliament in accordance with Article 85 but it is subject to a national referendum under Article 86 of the Constitution;
    4. That the Notice of Motion and the Motion of No Confidence dated November 23, 2004, therefore does not comply with the provisions of the amended Article 43 of the Constitution. Yes, as Article 43 (2) (as amended) is not enforceable;
    5. That the Speaker of Parliament be restrained hereinafter from putting the Motion of No Confidence on the list of Agenda for the Ordinary Session of the Parliament pending the outcome of this application, is refused;
    6. The earlier decision of the Speaker of Parliament to allow Parliament to debate the Motion and Motion of No Confidence on December 2, 2004 infringed the rights of the Applicant under the amended Article 43 of the Constitution, is refused. The amended Article 43 of the Constitution is not enforceable.
  2. In relation to the Declarations and/or Orders sought by the First Respondent
    1. That the advice of the Attorney General to the Hon. Barak T. Sope dated 11th August 2004, and to the Prime Minister dated 15th November 2004 on the gazettal and operation of the Constitutional (Fourth Amendment) Act is pursuant to Article 86 of the Constitution is granted;
    2. That to allow items 3 and 4 of the Constitutional Amendment Act to come into operation without a national referendum would be contrary to Article 86 of the Constitution, is granted;
    3. That the Attorney General’s Public Notice in the Official Gazette concerning the operation of the Constitutional Amendment Act upholds Article 86 of the Constitution, is granted;
    4. The gazettal of the Constitutional (Fourth Amendment) Act does not bring into effect items 3 and 4 of the Act, is granted;
    5. That for items 3 and 4 of the Act to come into effect, they need to be supported by a national referendum pursuant to Article 86 of the Constitution, is granted.
  1. In relation to the Declarations and/or Orders sought by the Third Respondents
    1. The Motion served with Speaker was not invalid but in accordance with law, is granted;
    2. The Speaker did not err in accepting the Notice and Motion as it was validly served and furthermore when he accepted the motion it became a matter for Parliament alone, is granted;
    3. Notwithstanding its passage in Parliament no legal effect can be given thereto, is granted;
    4. Given the unenforceability and unconstitutionality of the Amendment, the Motion remains valid and Article 43 (2) applies, is granted.
    5. No infringement lies against the Applicant Prime Minister, is granted;
    6. The First and Third Respondents are entitled to costs against the Applicant. Such costs be determined failing agreement.

DATED at Port Vila, this 7th day of December 2004.


BY THE COURT


Vincent LUNABEK
Chief Justice.

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