Supreme Court of Vanuatu

19. The state of the evidence as filed which is relevant for consideration in relation to Article 28 (3) is first, Mrs. Nadine Alatoa in her first sworn statement filed on 8 December 2015 deposes that she is the COM Secretary and says that she was at the COM meeting on 15 October 2015 when the COM resolved that Parliament be dissolved. She said after that meeting she served the Prime Minister with a copy of the decision. Annexure "NA4" to her sworn statement is the agenda for the COM meeting on 15 October 2015 and agenda item J was the submission for the dissolution of Parliament. The minutes of that COM meeting are annexed as Annexure "NA5" which shows that ten (10) Ministers were in attendance at that meeting with two (2) officials being Mrs. Alatoa, as the COM Secretary and the Acting Attorney General. The minutes reflect that after discussing the submission, a motion was moved by the Minister of Finance and seconded by the Minister of Climate Change and the COM approved the submission in the following terms:-
    

"Appruvum blong Praem Minista I advasem Presiden blong Ripablik blong hemi dissolvem Palamen olsem we I stap long Japta 4, Atikel 28 (3) blong Konstitusen."

(Approved for the Prime Minister to advise the President of the Republic to dissolve Parliament as provided under Chapter 4 Article 28 (3) of the Constitution.)

(translation added)

20. Annexure "NA6" to the sworn statement of Mrs. Alatoa is her letter to the Prime Minister dated 15 October 2015 advising the Prime Minister of the COM decision.
    
21. The Prime Minister, Mr. Sato Kilman also filed a sworn statement on 9 December 2015. In his evidence he deposes at Paragraphs 3 to 6 of his sworn statement as follows:-
    

".....

2. I make this statement from matters within my own knowledge and from the records of the Prime Minister's Office, unless other wise stated.

3. On 15 October 2015, the Council of Ministers (COM) during its meeting and in particular on the submissions in regard to dissolution of Parliament approved that the Prime Minister would relay to H.E the President the COM's advice that he dissolve Parliament. A true copy of the submission paper to the COM is attached and marked as "SKL1" and the COM minutes is attachment "NA5" to the sworn statement of Nadine Alatoa filed herein.

4. It was during the COM that I learned that Alfred Carlot had signed a motion of no confidence against me as the Prime Minister. After the COM meeting, I removed Hon Alfred Carlot as a Minister. A copy of the instrument of removal is attached as and marked "SKL2".

5. Following the COM meeting on 15 October 2015, I received from the Secretary of the COM the COM decision in relation to COM's advice that the President dissolves Parliament . A true copy of the COM decision is attachment "NA6" to the sworn statement of Nadine Alatoa filed herein.

6. Following the COM meeting and COM decision dated 15 October 2015, on 16 October 2015 I attended the President's Office with my letter to H.E the President in relation to the dissolution of Parliament and the COM decision ("NA6"), and related to him the advice of the COM to dissolve Parliament. A true copy of my letter is attached and marked "SKL3.

....."

22. The last paragraph to the Prime Minister's letter of 16 November 2015 to the President states:-
    

".....

In light of the above valid points and arguments and pursuant to Chapter 4 Article 28 (3) of the Constitution of the Republic of Vanuatu, the Council of ministers has unanimously approved on Thursday 15 October 2015 for the dissolution of Parliament with immediate effect. [Vide attachments] Attached hereto is an instrument for dissolution of Parliament prepared by the office of the State Law.

Yours faithfully

Hon Meltek Sato Kilman Livtuvanu (MP)

Prime Minister"

(emphasis added)

23. The next piece of evidence is that of Father John Coleridge Sovan. He filed a sworn statement of 9 December 2015. He deposes in his sworn statement that he is the President's Principal Private Secretary. He says that the Prime Minister met with the President on 16 October 2015 and annexes as Annexure "A" to his sworn statement a letter dated 16 October 2015 that was sent by the Prime Minister to the President advising of the COM resolution on 15 October 2015 for the President to dissolve Parliament.
    
24. Fr. Sovan further deposes in his sworn statement that prior to the dissolution, the President also met with the Applicants on four occasions. He annexes at Annexure "C" to his sworn statement the instrument of dissolution and at Annexure "D" the President's public address to the nation. The instrument of dissolution of Parliament states:-
    

"In exercise of the Powers conferred on me by Article 28 (3), I His Excellency WOMTELO REV. BALDWIN JACOBSON LONSDALE, President of the Republic of Vanuatu, on the advice of the Council of Ministers, dissolve Parliament.

This instrument commences on the day on which it is made.

Made at Port Vila this 24th day of November, 2015

(sign)

His Excellency WOMTELO REV. BALDWIN JACOBSON LONSDALE

President of the Republic of Vanuatu."

(emphasis added)

25. In his public address to the nation, the President stated as follows:-
    

"Fellow sitisens, good day long yumi everiwan long Vanuatu stat long Hiu long Torres long North, iko kasem Matthew mo Hunter Islands long South. Tudei, mi kambak wan moa taem long Radio blong mekem Pablik Address blong mi long situeson we mi bin livim wetem Kavman moa Opposition blong kam antap wetem wan amikebol solution, afta 14 MP's I bin sentenced mo oli bin ko long Correctional Sentas long 22nd October, 2015. Afta long wan manis, 2 days Vanuatu I no lukim yet wan new Kavman we yumi everi wan I bin stap hope from. Mi bin mekem best blong helpem tuketa saed blong foketem ol differences blong tufala mo fomem wa kavman blong servem nasonal interest blong ol pipol blong yumi, be kam kasem tudei, situeson I stap sem mak nomo.

Taem mi stap kwaet plante blong prey mo seekim maen blong God long Politikol situeson blong yumi, we yumi se; "Long God yumi Stanap", motto ia hemi no realised long ol Kaontri blong yumi. Concern we hemi stap naoia long Vanuatu, se taem Kavman wetem Opposition I stap raorao from ol posision long Kavman, situeson blong livelihood blong pipol I continue blong affected. Yumi stap experiencem tudei, ol Natural Disastas we I bin affectem yumi mo I stap affectem yumi yet.

1. After long Cyclone Pam long 13th mo 14th March 2015, Vanuatu hemi no fully recovered yet. Vanuatu I just start blong go insaed long Recovery plan blong hem nomo, El Nino too hemi hitim yumi bakegen. Plante pipol blong yumi I stap safa yet long tufala Natural Disastas ia yet, Politikol Impasse I hitim yumi we I lukim 14 MP's I bin sentenced blong go long jail, mo saed ino gat namba blong servem ol Pipol blong Vanuatu.
   
2. Impact blong Climate change long sea level rise too hemi continue blong affektem ol Pipol blong yumi, mo Kavman.
   
3. Servis Delivery iko long ol pipol blong yumi hemi slow mo hemi no effective.
   
4. Dry Sison or Drought hemi stap hitim yumi fullwan naoia, mo hemi affecktem plante Communities long Kaontri, we plante aeland ino gat sef Water mo ino gat inaf kakai. Samfala Pikinini I bin passaway finis long Tanna mo sam narafala Province long North.
   
5. Tudei, taem mi stap givim address ia long Neson, Meteorological Department I stap soundem alarm long Kaontri, se bai I save gat 6-7 cyclone long sison ia, mo I save gat tu or tri cyclones I save hitim Vanuatu, mo pawa blong hem yumi no save yet.
   
6. Follem Political Instability long Vanuatu we hemi wan Man-Made Disaster, whole neson hemi kam olsem ol victim blong issue ia, mo Service delivery Ino save ko long ol pipol from lack blong Good Governance Principles mo quality blong strong Lidaship.
   
7. 2015 Vanuatu I bin go through finis tufala elections long Luganville Municipality, mo Port Vila Bye-Election long 15th October, mo long 17th December bambai Sanma Province I holem Election blong hem. Wetem ol Elections ia, cost blong ranem ol Elections ia hemi expensive.
   
8. Wetem 14 Former MP's we oli stap long jail naoia, after oli lusum seat blong olgeta olsem ol MP's long 21st November 2015, bambai I gat nid blong holem wan Bye Election. Cost blong Bye-election blong 14 MP's, I save costem kaontri long ova 50 million vatu. After samfala manis, bambai I gat General Elections we bambai hemi save kostem ova long 280 million Vatu.
   
9. Taem mi stap givim address blong mi ia, mi andastan se I gat summon blong kolem Parliament long 14 December 2014, mo wan Urgent Constitutional Application we hemi bin serviced I kam long offis blong mi yesterday 23rd November 2015, mi bin givim longfala taem finis, mekem se mi disaet long option we mi givimnaot naoia.
   

Follem ol issues ia, mo afta long cereful Consideration long samfala Consequences we I stap affectem current Political situeson blong Vanuatu olsem;

• Unity blong neson blong yumi; follem stampa toktok long Japta 1 blong Constitution, Article 4, sub- Article (1) we hemi talem olsem; "National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives";
  
• Public interest, Pablik Order mo welfare blong Majority blong Pablik long Vanuatu;
  
• Cost blong Neson sapos Dissolution hemi no save happen from tuketa saet I no save fomen wan Kavman;
  
• Olgeta risons blong Advaes blong Council of Ministas we I bin kol for Dissolution we mi bin holem taet kasem tudei;
  
• Options blong Parliament hemi mas dissolve mo ko long General Election follem Article 28 (4) blong Konstituson we I mas happen within 30 days mo not later than 60 days, bambai hemi helpem Vanuatu moa sapos yumi enta long General Elections;
  
• Instability blong term blong Kavman we I stat long 2012 kam kasem tedei we Kaontri hemi witnessem 4 Prime Ministas finis,
  
• Mo follem toktok blong Electoral Ofis we hemi talem se Ofis hemi gat mane blong ranem General Elections anytaem nawia iko; mi mekem decision olsem:
  

Follem Article 28 (3) blong Constitution blong Ripablik blong Vanuatu, we hemi talem olsem; "The President of the Republic may, on the advice of the Council of Minister dissolve Parliament", we hemi discretionary Pawa blong mi olsem President, mo follem last part blong Article 5 (1) long Constitution we hemi tokbaot; "the Legitimate Public Interest in Public Order and Welfare of the people of Vanuatu",

• after we Ofis blong mi I bin exhaustem everi avenue blong tekem Kaontri blong yumi I kambak long normalcy bakegen,
  
• mo afta we everi efforts mo ol attempts blong faenem possibol solution afta failed dialogues mo negotiations wetem tuketa saed;
  
• mo olsem we mi bin talem long las Address blong mi se, Dissolution hemi save kam Olsem las Resort;
  
• mo blong putum bak intergrity blng neson blong yumi, mo safeguardem Sovereignty blong Kaonri blong yumi, mo alloem Kaontri I nomo go thru long continued Politikol Instability,
  
• Mo givim bak Confidens long ol Donor Partners mo ol Investas blong yumi; hemi givim mi mandate blong eksaeaem pawa ia.
  

Follem pawa we hemi vested wetem Ofis blong mi olsem President blong Ripablik, mi stap tekem taem ia tudei blong announsem se tudei 24th November 2015, mi stap Dissolvem Parliament blong Ripablik blong Vanuatu.

Thank yu tumas."

COM advice to the President invalid

26. The first ground of challenge was that the COM advice to the President was invalid. The Applicants submitted that section 15 of the Government Act was breached when the COM met to consider the Submission for the dissolution of Parliament pursuant to Article 28 (3) without any advice from the Attorney General and the Director General of Finance. This submission clearly undermines the supremacy of the constitution and is rejected. There is no ambiguity in the reading of Article 28 (3). In Korman the court of appeal stated that:-
    

"Article 28(3) provides a discretion to the President which is subject only to his first receiving advice from the Council of Ministers."

27. Even if the Applicants submission is accepted, the issue before the COM was a legal issue and the Acting Attorney General was present in the meeting and gave legal advice.
    
28. The Minutes of the COM meeting on the 15 October 2015 record the COM decision for the President to dissolve Parliament. It also records the presence of the Acting Attorney General (the principal legal advisor to the Government) who was there and advised that the President has a discretionary power to dissolve Parliament upon the advice of the COM.
    

COM meeting of 15 October 2015 not properly constituted

29. The second ground of challenge is that the Applicants submit that the COM meeting of 15 October 2015 was not properly constituted as only ten (10) members attended the meeting instead of all the Ministers. Secondly it was submitted that five of the ministers who attended the meeting were convicted in the bribery case Criminal Case No 73 of 2015.
    
30. The argument is rejected. The evidence shows that there was a COM meeting on 15 October 2015 with 10 Ministers which is more than half of the members out of 13 in attendance including the Prime Minister. The fact that five were convicted in the bribery case is of no significance as they were still members of Parliament at that stage and remained as Ministers. They were yet to be sentenced.
    

The President infringed Article 28 (3) in dissolving Parliament

31. Thirdly, the Applicants submit that the President infringed Article 28 (3) of the constitution in dissolving Parliament. It was submitted that when he received the advice from the COM he should have acted immediately but waited for 5 weeks. Furthermore it was submitted that he considered other factors such as the Government of national Unity and waited until the appeal against sentence of the convicted members of Parliament were dismissed then he dissolved Parliament. It was also submitted that the President was conflicted in his decision due to his exchange of pigs with the Prime Minister.
    
32. The First Respondent submits that the evidence about the custom ceremony in which pigs were exchanged cannot be elevated to a status more than a mere appreciation of the prevalence of custom in Vanuatu society. I accept this submission.
    
33. The Prime Minister in his evidence at paragraphs 8 to 13 confirms that the reasons for the exchange of pigs was to settle their differences with the President over the cancellation of their meeting on 26 October 2015 and the adverse coverage by the media over the cancelled meeting.
    
34. As to the timing to act, Article 28 (3) does not set a timeframe as to when the President should act after receiving advice from the COM to dissolve Parliament. Therefore the suggestion that the President should act immediately or the same day or a day after is flawed. The Court of Appeal in Korman confirmed that the President has a wide discretion when it said:-
    

"Article 28(3) vests a wide and extensive discretion in the President. There is a heavy burden on anyone who asserts that there has been an improper exercise of that discretion."

(emphasis added)

President's exercise of Article 28 (3) power was irrational

35. The final ground of challenge by the Applicants is they submit that the President's exercise of discretion was irrational. It was submitted that the features of irrationality or unreasonableness in the President's exercise of discretion under Article 28 (3) were as follows:-
    
    • There was a delay of 5 weeks from 16 October to 24 November 2015 when the President received the COM's advice to dissolve Parliament;
      
    • The President accepted and acted upon the COM advice to dissolve Parliament when he knew that the COM consisted of convicted MPs;
      
    • The President was concerned about the budget yet he dissolved Parliament;
      
    • The President knew that Parliament was summoned to meet in its second ordinary session;
      
    • The President knew that the Government was a minority Government;
      
    • The dissolution of Parliament was not compatible with the President's speech;
      
    • The President knew that Kenneth Natapei was yet to be sworn in;
      
    • The President waited for the outcome of the bribery case before dissolving Parliament.
      
36. In Korman the court said "Where the Constitution provides such a wide and unfettered discretion it is necessary to show that in legal terms the decision taken by the President was irrational and unsustainable". The court reiterated this position again in Abiut that:-
    

"Provided that he lawfully performed the functions of the President under the Constitution, and provided that the decision which he made was not irrational or unsustainable or that he was not acting in a conflict of interest situation under Article 66 (1) (a) in his performing of the functions, his actions cannot be challenged, in our view."

37. The President's speech details the factors he took into account. In their oral submissions, the Applicants stressed that dissolving Parliament was a serious matter. The speech in my view indicates that the President turned his mind to the seriousness of dissolving Parliament and took careful consideration of the factors he mentions in his speech which when read as a whole the speech indicates a proper appreciation and exercise of discretion by the President.
    
38. I am therefore not satisfied that the Applicants have discharged the burden that there has been an improper exercise of discretion.
    

Findings

39. I therefore make the following findings that:-
    

1).The COM was lawfully constituted on 15 October 2015 when it resolved to advise the President to dissolve Parliament;

2).That the COM advice was delivered to the President on 16 October 2015 by the Prime Minister in his letter of the same date when he met the President;

3).The President in exercise of his discretion upon the advice of the COM dissolved Parliament on 24 November 2015.

40. Having made the above findings, the main issue as to whether Parliament was lawfully dissolved by the President on 24 November 2015 must be answered in the positive, that yes, Parliament was lawfully dissolved by the President on 24 November 2015 upon the advice of the COM. The other orders sought and grounds raised are consequential upon the determination of this one issue, therefore having determined that Parliament was lawfully dissolved, I need not consider the rest of the grounds and the orders sought.
    

Conclusion

41. The orders I make are as follows:-
    
    1. The Applicants Constitutional Application is hereby dismissed.
       
    2. The First and Second Respondents are entitled to costs on a standard basis to be paid by the Applicants jointly and severally and to be taxed failing agreement.
       
42. A final observation that I would make is that given the circumstances and the time frame set for general elections to be held, I would urge all counsels and parties that should you intend to appeal this decision that you do exercise your appeal rights within forty eight (48) hours irrespective of the statutory appeal period so that the urgency is managed and any appeals filed are appropriately dealt with.
    

DATED at Port Vila, the 16 day of December, 2015

BY THE COURT

D. ARU
Judge