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Public Prosecutor v Vohor [2004] VUSC 22; Criminal Case 033 of 2004 (23 September 2004)

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

Criminal Case No. 33 of 2004

PUBLIC PROSECUTOR

-v-

RIALUTH SERGE VOHOR

Coram: Mr. Justice H. Bulu

Mr. John William Timakata for the Public Prosecutor
Mr. Sampson Endehipa, the Attorney General for the Defendant

Hearing Date: 11 September 2004.
Judgment Date: 23 September 2004.

Decision on application FOR COMMITTAL ORDER

INTRODUCTION

1. On 27 August 2004, Vincent Lunabek, Chief Justice of the Republic of Vanuatu ordered in Civil Case No. 154 of 2004 at paragraph 8 as follows:-
   

“The Clerk of the Parliament be directed to immediately after the issuance of these orders to summon Parliament to meet on the said Wednesday 1^st September 2004 at half past eight o’clock in the morning for Parliament to continue and complete its debate on the said Motion of no confidence in the Prime Minister.”

2. In compliance with the Order Parliament was summoned on Wednesday 1^st September, 2004 for the purpose of debating the Motion of no confidence. The proceedings were nationally televised.
   
3. During the debate the Defendant, the Public Prosecutor submitted, made comments in relation to the Court decision requiring the Parliament to sit and debate the motion that the Chief Justice was:-
   
   • (i) acting for foreign interests in Vanuatu;
     
   • (ii) had black skin but white heart;
     

(iii) the child of a white man “pikinini blong whiteman”.

ISSUES

4. The issues to be determined is firstly whether the statements made by the defendant amounts to a “contempt”; secondly, whether article 27 (1) of the Constitution protects the Defendant from prosecutions.
   

PUBLIC PROSECUTOR’S POSITION

5. On 11^th September, 2004 the Public Prosecutor applied for committal orders to commit the defendant to prison.
   
6. The Public Prosecutor had charged the Defendant for contempt pursuant to section 32 of the Judicial Services and Courts Act No. 54 of 2000 and applied for committal orders pursuant to sections 28 and 32 of that Act and section 82 (3) of the Penal Code Act [CAP. 135] and the inherent powers of the Supreme Court of the Republic of Vanuatu.
   
7. The Prosecution said it is a serious contempt and is being prosecuted in order to maintain the integrity and confidence in the proper administration of the Judiciary’s function.
   
8. In support of his application the Public Prosecutor had filed a sworn statement by Ms. Kayleen Tavoa that had with it annexure “A”, a copy of orders of 27^th August 2004 in Constitutional Case No. 154 of 2004; and annexure “B”, a video tape containing relevant portion of the statement by the Defendant on 1^st September 2004; and a sworn statement of urgency by John William Timakata.
   
9. The Public Prosecutor submitted that the statements made on 1^st September 2004 by the Defendant amounted, to a serious criminal contempt. This is so because the statements amounted to scandalizing of the Supreme Court and in particular the Chief Justice. The statements were calculated to impair the confidence of the people of the Republic of Vanuatu in the Courts judgment and the authority and influence of the Judicial determination.
   
10. The Public Prosecutor submitted that it is a serious contempt which must be dealt with as a matter of urgency in order to maintain the integrity and confidence in the proper administration of the Judiciary’s functions.
    

Do the statements amount to “contempt”?

11. Contempt of Court is a doctrine of common law according o which Courts are empowered to inflict summary punishment on those who interfere with the administration of justice. There are different types of conduct that may constitute contempt. The Public Prosecutor submitted that comments by the Defendant falls into the category of contempt by publication. This can be
    
    • (a) publishing material which tends to prejudice the fair trial of a case;
      
    • (b) publishing allegations tending to undermine public confidence in the administration of justice;
      
    • (c) publishing an account of the deliberations of a jury;
      
12. At common law, the comments would be viewed as contempt by “scandalizing the Court”. The Public Prosecutor referred the Court to the decision of Killowen CJ in Regina v. Gray [1900] 2 QB 3640 where he said:-
    

“Any act done or writing published calculated to bring a Court or a judge of the Court into contempt or to lower his authority, is a contempt.”

13. The Public Prosecutor further drew the attention of the Court to a statement in the “Law of Contempt” by Borrie and Lowe, Butterworths 1973 as to what amounts to contempt. It reads:-
    

“In short, the integrity of both the law and the judges must be maintained not for the personal satisfaction on the part of the judges themselves, but for the benefit of the community as a whole. Thus, personal abuse of a judge can amount to contempt because it tends to bring the administration of justice generally into disrepute.”

14. The statements by the Defendant impugned the impartiality of the judge including impropriety, submitted the Public Prosecutor.
    
15. The imputation of improper motives to a judge is the classic illustration of criminal contempt committed by “scandalizing the Court”. The Public Prosecutor referred the Court to the Privy Council decision of Ahnee at paragraph 21, AG v Ulakai [1999] TOSC 86 (15.12.99) (Supreme Court of Tonga), Namoa v AG [2000] TOCA 14 (21.7.00) (Court of Appeal of Tonga), DPP v Solomon Islands Broadcasting Commission [1985] SBHC 1 (High Court of the Solomon Islands).
    
16. The Public Prosecutor submitted that Criminal Contempt is provided for in Vanuatu in section 32 of the Judicial Services and Courts Act. Section 32 of that Act provides for an offence of contempt of Court as follows:-
    

“The Supreme Court has power to punish summarily a person for contempt of court by imprisonment of a term not exceeding one year or a fine not exceeding VT100,000.”

17. That section does not distinguish between civil contempts and criminal contempts. Civil contempts are generally failure to comply with orders of the Court. Criminal contempts may be defined as other acts which tend to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation.
    
18. The Public Prosecutor further argued that:-
    
    • (a) Part 4 Division 1 of the Judicial Services and Court Act provides for the constitution, jurisdiction and powers of the Supreme Court. The Part provides for the civil and criminal jurisdiction of the Supreme Court without any demarcation or delineation;
      
    • (b) Section 32 provides for terms of imprisonment to be imposed which is consistent with the existence of the offence of criminal contempt; and
      
    • (c) To find that the provision includes criminal contempt is consistent with the rationale of the Privy Council decision of Ahnee where it was found that the Judiciary must, as an integral part of its constitutional function, have the power and duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it (paragraphs 13 to 16 of the judgment).
      

Does Article 27 (1) of the Constitution protect the Defendant from prosecutions?

19. In Natapei v Tari [2001] VUSC 113; Civil Case No. 59 of 2001, the Supreme Court considered the extent of parliamentary privilege in the context of the legality of the actions of the Speaker of Parliament in closing a session of Parliament. The Court considered and rejected the submissions put before the Court that the British absolute privilege applied to Vanuatu (page 55). The Court went on to state as follow:-
    

“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.”

20. And further, more importantly in the specific area of speeches made in Parliament, the Supreme Court stated as follows at page 57:-
    

“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.”

21. The case went to the Court of Appeal (Tari v Natapei [2001] VUCA 18; Civil Appeal Case No. 11 of 2001 (1^st November, 2001) where the Court of Appeal confirmed the decision of the Supreme Court and stated in relation to Article 27 (1) of the Constitution as follows:-
    

“In our judgment the immunity which is provided under Article 27 does not mean that a person can do what they like in Parliament without anyone being able to have recourse to the Court for a breach of their constitutional rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all time for all citizens. The Standing Orders of Parliament are the rules which apply within Parliament. Like all other legal rights and responsibilities they must be at adhered to.

It would make a mockery of the Standing Orders if Article 27 was interpreted and used as a devise to read down the rights guaranteed by Article 5 of the Constitution so as to deny the constitutional rights of others which are preserved to them under Article 6 and 53 of the Constitution.

Accordingly we are satisfied that in the very unusual circumstances which had developed, notwithstanding the reluctance which the Court will always have about any interference with the sovereignty of the Parliament when it has applied all proper legal rules and procedures, and even recognizing the essential supremacy of Parliament within the framework of rights and duties in the Constitution, there was no option but for the Court to intervene to ensure that the rule of law was adhered to and maintained.” (Emphasis added to show the principle established by that case).

22. In the context of Tari’s case Article 27 (1) did not protect a parliamentarian (the Speaker) where his conduct amounts to a breach of the standing orders of Parliament.
    
23. The Public Prosecutor argued that Article 27 (1) does not protect the Prime Minister, where comments made clearly amount to contempt of the court. He submitted that the reasoning contained in Tari’s case was not expressed in a limited way in either the Supreme Court or the Court of Appeal.
    
24. Further that the Supreme Court’s decision limited the protection to where the Parliamentarian is “enquiring into legislative acts or into the motivation for their actual performance of legislative acts” and specifically exempted from protection activities that were political rather than legislative in nature. Clearly, the speech of the Prime Minister would not be protected when tested against the rationale of the Supreme Court's decision and Court of Appeal decision.
    
25. The Public Prosecutor finally submitted that the Court of Appeal’s position, after approving the decision and reasoning of the Supreme Court was that there was a need to ensure that there was an adherence to the Rule of Law. The comments of the Prime Minister, scandalizing the Court are to be viewed as bringing the administration of justice into disrepute. There could not be a stronger case of the need to ensure Rule of Law by limiting the privileges in Article 27 (1) to exclude the contemptuous comments of the Prime Minister towards the Chief Justice.
    

DEFENDANT’S POSITION

26. The Honourable Sampson Endehipa, the Attorney General appeared for the Defendant. Submissions on behalf of the Defendant can be summarized as follows:-
    
    • (1) The matter was brought to his attention only a few hours before proceedings started;
      
    • (2) The Defendant must be given the right to be heard.
      

THE LAW

27. Section 28 (1) and 32 of the Judicial Services and Courts Act No. 54 of 2000 provides:-
    

“28. Unlimited jurisdiction throughout Vanuatu –

(1) The Supreme Court has –

• (a) Unlimited jurisdiction throughout Vanuatu to hear and determine any civil or criminal proceedings, including matters of custom; and
  
• (b) All jurisdiction that is necessary for the administration of justice in Vanuatu.”
  

“32. Contempt

The Supreme Court has power to punish summarily a person for contempt of Court by imprisonment for a term not exceeding one year or a fine not exceeding VT100,000.”

28. Section 82 (3) of the Penal Code Act [CAP. 135] provides:-
    

“Offences relating to Judicial Proceedings –

82. (1) ...

(2) ...

(3) The provisions of this section, shall be in addition to and shall not derogate from the power of the Supreme Court to punish for contempt of Court.”

DISCUSSIONS

29. I must remind myself that this is a criminal matter and the standard of proof is beyond reasonable doubt. I further remind myself that proceedings for contempt is done summarily and not otherwise. The authority for that is section 32 of the Judicial Services and Courts Art No. 54 of 2000 and the Supreme Court has jurisdiction to try contempt offences.
    
30. The Court has taken into account submissions made by both parties. The Public Prosecutor has made an application for committal order. He has made written submissions and oral submissions in support of his application. Prior to doing so, he had notified and served counsel for the Defendant.
    
31. Counsel for the Defendant in essence made two submissions on behalf of his client. Firstly, that he hasn’t had much time or any time at all to peruse the documents served on him. Secondly, that his client ought to be given an opportunity to put his case. Counsel for the Defendant did not ask the Court for an adjournment to allow him to prepare the Defendant’s case, it he thought the defendant had a case.
    
32. The Public Prosecutor had maintained in his submission that this is a summary proceedings and the Defendant will still have his right to put his case before the Court, when he appears to show cause why he should not be committed to prison for contempt.
    
33. The Extra Ordinary session of Parliament continued on the 1^st of September 2004 on the orders of the Court. This followed findings by the Court:-
    
    • (a) That the closing of the First Extra Ordinary Session of Parliament by the Speaker on 26^th August 2004 was in breach of the rights of the Applicants under Article 42 (2) of the Constitution to debate the motion against the Prime Minister; and
      
    • (b) That the Speaker had closed the First Extra Ordinary Session of Parliament unlawfully.
      
34. The motion of no confidence was in the Defendant as the Prime Minister of this country. He was not happy that Parliament had been told to debate the no confidence motion in him.
    
35. In his statement in Parliament to Parliament and the nation, as the debate was televised, the Defendant said of the Chief Justice –
    
    • (a) that he was acting for foreign interests in Vanuatu;
      
    • (b) that he had black skin but white heart;
      
    • (c) that he was the child of a white man;
      

words to that effect.

Do the statements amount to contempt?

36. Vanuatu is a young small jurisdiction with very little history behind it as compared to the United Kingdom or other bigger English Common Law jurisdictions. The Privy Council decision of 1999 in Ahnee at paragraph 21 after agreeing that “the offence of scandalizing the Court exists in principle to protect the administration of justice” went on to say this about the need for the offence of scandalizing the Court:-
    

“That leaves the question whether the offence is reasonably justifiable in a democratic society. In England such proceedings are rare and none have been successfully brought for more than sixty years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalizing the Court on a small island is greater.”

37. Of course it must be remembered that it does not extend to comments about the conduct of a judge that is not related to his performance on the bench. It must exist solely to protect the administration of justice and not the feelings of judges. Privy Council in that case went on to say that “There must be a real risk of undermining the public confidence in the administration of justice.” Untrue allegations of bias or impropriety will amount to a serious contempt because of the tendency to undermine the very basis of the judge’s function.
    
38. The principal phrase of concern and of which complain is made is that “the Chief Justice is acting for foreign interests in Vanuatu.” That phrase must be considered in the totality of the circumstances in which it was made. That basically is this. Parliament had just resumed meeting in its First Extra Ordinary Session of 2004 as ordered by the Supreme Court, because the closure of that session earlier by the Speaker was found by the Chief Justice to be unlawful and breached constitutional rights of petitioners to debate a motion of no confidence in the Prime Minister. The Defendant is the Prime Minister of Vanuatu. During the debate he criticized the Chief Justice and said that he was “acting for foreign interests in Vanuatu”. That statement can only be made as a consequence of the decision of the Chief Justice ordering the Speaker to summon Parliament to debate the motion of no confidence against the Defendant.
    
39. That statement bears the allegation of impropriety that the Chief Justice, in that particular case and or in other cases was not deciding cases according to law. That the Chief Justice took into account matters that he should not have taken into account. That the foreign interests influenced him to take into account such matters to make his decisions.
    
40. Is there a real risk of undermining public confidence in the administration of the Judiciary? The statement that the Chief Justice was acting for foreign interests in Vanuatu is both a personal attack on the person of the Chief Justice and an attack on the Judiciary. That in my view is a statement calculated to undermine the confidence of the people of this young democracy in the judiciary and the pronouncements of the judiciary beginning with the decision which ordered the Speaker to continue with the First Extra Ordinary Session of Parliament of 2004. Article 47 (1) of the Constitution declares that:-
    

“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.”

41. The implication of the statement by the Defendant on 1^st September 2004, is that the Chief Justice and the Courts do not resolve proceedings according to law but according to foreign interests in Vanuatu. The maker of the statement is no one other than the Prime Minister, head of the executive, the most powerful figure in the Republic. It is easy for citizens to believe in what the Prime Minister says to be true.
    

Findings on whether statement amounted to contempt.

42. My view is this:
    
    • (1) Given the circumstances in which the comments were made there is a real risk of undermining the public confidence in the administration of justice in this nation.
      
    • (2) The statements made in Parliament on 1^st September 2004 amounts to contempt as it is aimed at scandalizing the Court of this land. Whether it is a slander on the good name of the Chief Justice is another matter and since it is not raised before this Court, I do not aim to say anything about it.
      

Does Article 27 (1) of the Constitution protect the Defendant from prosecutions?

43. The Public Prosecutor submitted that Article 27 (1) of the Constitution does not provide a protection for the Defendant. Article 27 (1) states:-
    

“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.”

44. The subject matter before the House for debate was a motion of no confidence in the Prime Minister. It was not the decision of the Chief Justice. Article 27 (1) has been the subject of scrutiny by the Courts as to whether the immunities provided by that article is absolute. The Courts have said no.
    
45. In Natapei v Tari [2001] VUSC 113; Civil Case No. 59 of 2001 the Supreme Court at page 57 of its judgment said:-
    

“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.”

46. The case went to the Court of Appeal where the Court of Appeal confirmed the decision of the Supreme Court and stated in relation to article 27 (1) of the Constitution as follows:-
    

“In our judgment the immunity which is provided under Article 27 does not mean that a person can do what they like in Parliament without anyone being able to have recourse to the Court for a breach of their constitutional rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all time for all citizens. The Standing Orders of Parliament are the rules which apply within Parliament. Like all other legal rights and responsibilities they must be at adhered to.”

47. The principle as laid down by the decision of the Court of Appeal referred to above is that “the rule of law is ensured in all places at all time for all citizens”. This in my view is a very clear distinction that goes to the heart of the immunities accorded to Members of Parliament under Article 27. A Member of Parliament cannot use Article 27 (1) as a shield to defame a person or as in this case scandalize the Courts of this land.
    

Findings as to whether Article 27 (1) of the Constitution protect Mr. Vohor from prosecutions.

48. My view is this.
    
    • (1) The case of Tari v Natapei [2001] VUSC 113; Civil Appeal Case No. 11 of 2001 is authority on whether Article 27 immunities applies to opinions made by Members of Parliament in Parliament.
      
    • (2) The statements made by the Defendant on 1^st September 2004 in the First Extra Ordinary Session of Parliament, in Parliament that the Chief Justice:-
      
      • (a) was acting for foreign interests in Vanuatu;
        
      • (b) had black skin but white heart;
        
      • (c) was the child of a white man;
        

are “political rather than legislative in nature” and are therefore not protected by the immunities and privileges provided to Members of Parliament under Article 27 (1) of the Constitution of this Republic.

Is there an urgency to hear the application by Public Prosecutor for Committal Orders?

49. The Public Prosecutor submitted that there is an urgency in dealing with the matter as the statements by the Defendant on 1^st September 2004 amounted to contempt. The specific type of contempt is one of scandalizing the Courts. That the longer it remains, the greater the damage will be on the Judiciary as a whole. The Public Prosecutor submitted that the statements were calculated to undermine the confidence of the Judiciary. That is a really serious matter. If the public confidence is eroded in the Judiciary the ramifications for this young Republic is huge.
    
50. I have made findings on the evidence before this Court that the statements made by the Defendant on 1^st September 2004 amounts to contempt.
    
51. I find that there is an urgency in the matter being determined by the Court.
    

CONCLUSIONS

52. The Defendant was represented in this proceeding. He did not ask the Court for any adjournment.
    
53. Proceedings for contempt is by way of summary proceedings under Section 32 of the Judicial Services and Courts Act No. 54 of 2000, and Section 82 (3) of the Penal Code Act [CAP. 135].
    
54. I am satisfied on the evidence before this Court that the Public Prosecutor has proved the case beyond reasonable doubt.
    

FORMAL ORDERS

55. The Defendant is to be arrested by members of the Police Force of the Republic of Vanuatu immediately upon his arrival at the Bauerfield International Airport from an international visit and is to be brought before the Supreme Court to show cause why he should not be committed for contempt.
    
56. Costs of this application in favour of the Public Prosecutor.
    

DATED at Port Vila, this 23^rd day of September 2004.

H. BULU
Judge.