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Kalsakau v Speaker of Parliament [2025] VUSC 339; Constitutional Case 3507 of 2025 (10 December 2025)

IN THE SUPREME COURT OF Constitutional
THE REPUBLIC OF VANUATU Case No. 25/3507 SC/CNST
(Civil Jurisdiction)

Before: Hon Justice Oliver A Saksak

Counsel: Mr Sakiusa Kalsakau for the Applicants
Mr Garry Blake for the First Respondent
Mrs Florence William Samuel, Solicitor General and Mr Sammy Aron for the Second
Respondent

Date of Hearing: 9^th December 2025
Date of Judgment: 10^th December 2025

________________________________________________________________________________________________________________________________

JUDGMENT

Introduction

1. On 14^th November 2025 the Speaker of Parliament gave his ruling that Motion No.9 of 2025 which he had received that morning was not in order and therefore the Speaker closed the Fourteenth Legislature of Parliament’s Second Ordinary Session of 2025.
   
2. The applicants challenge that ruling pursuant to Articles 6 and 53 asserting that their constitutional rights were breached when the Speaker closed Parliament, so that Motion No. 9 of 2025 could not be debated.
   

Reliefs Sought

3. They seek orders that:
   
   1. The Ruling of the Speaker dated 14^th November 2025 holding that Motion No. 9 of 2025 being a motion of no confidence in the Prime Minister is not in order and should be set aside as being unconstitutional and in breach of Article 43 (2) of the Constitution.
      
   2. A declaration that the Speaker’s ruling closing Parliament without debating Motion No. 9 of 2025 is unconstitutional and a breach of Article 43 (2) of the Constitution.
      
   3. A declaration that Motion No. 9 of 2025 is in Order and that it must be immediately debated and voted on by Members of Parliament in accordance with Article 43 (2) of the Constitution.
      
   4. An Order that the Speaker immediately summon Parliament to debate and vote on Motion No. 9 of 2025.
      
   5. An Order for costs.
      

Facts

4. Parliament in its 14^th Legislature was summoned to sit in its second Ordinary session from Thursday 6^th November 2025.
   
5. The business to be transacted during this Ordinary Session at its sitting on 14^th November 2025 were:
   • - Confirmation of Minutes of the Year 2023;
   • - Tabling of Reports of Parliamentary Standing Committee for the Year 2025;
   • - Motions for approval of workplans of Parliamentary Standing Committees.
   • - Tabling of the Bill of National Product Stewardship Scheme Fund, and
   • - Withdrawals of the remaining Government Bills.
     
6. Altogether a total of 9 Bills were listed on the agenda for debate, however 8 of them were withdrawn by the Government at the sitting of Parliament held at 8:42am on 14^th November 2025.
   
7. The applicants however lodged a motion of no confidence in the Prime Minister on 14^th November 2025. It was received at 9:05am that day and registered as Motion No.9 of 2025.
   
8. The mover of motion was Hon. Alatoi Ishmael Kalsakau Maau’Koro as the Opposition Leader and the Seconder was Hon. Jay Ngwele, Deputy Leader of the Opposition.
   
9. The Motion was signed by seven other members of Parliament making up one sixth of the members as required.
   
10. The motion was deposited in both French and English by Hon. Gracia Shadrack to the Secretary to the Parliament Secretariat, Louise Loloma Vere.
    
11. The motion was not dated in both texts.
    
12. Parliament resumed its sitting on Friday 14^th November 2025 at 3:23pm. The Minutes of the Proceedings that day was authenticated by the Clerk of Parliament pursuant to Standing Order 22. The Minutes have not yet been approved by Parliament.
    
13. The Minute records the Speaker’s statement and introduction of the Motion to the House, his views , opinions and findings and the reasons for his findings, and rulings.
    
14. After making his decision, the speaker subsequently closed the ordinary Session of Parliament.
    

Issues

15. The issues raised for determination by the applicants are:
    
    • - Is Motion No. 9 of 2025 in accordance with Article 43 (2)?
    • - Was the Speaker correct when he ruled that that Motion No. 9 of 2025 was not in order because he was not given 7 days notice of the motion?
    • - If the motion is an order, was the Speaker’s ruling to close Parliament’s second ordinary session constitutionally valid?
    • - If there has been an infringement, what is the appropriate remedy?

Evidence

16. The applicants filed evidence by sworn statements in support of their application from Gracia Shadrack, Andrew Wilbur Napuat, Jay Ngwele, Alatoi Ishmael Kalsakau, Allan Liki, Anatol Hymak, Jesse Luo, Marc Muelsul and Micah Oliver respectively on 18^th November 2025.
    
17. The applicants filed written skeleton submissions on 26^th November 2025.
    
18. The First respondent filed evidence by sworn statements on 4^th November 2025 from Louise Loloma Vere, Secretary to the Parliament Secretariat, from Maxime Banga, Clerk of Parliament and from Hon. Stephen Felix, Speaker of Parliament.
    
19. On 5^th December 2025 at 9:00am the First respondents filed a Response to the urgent constitutional application and the synopsis of submissions.
    
20. The Second Respondent filed its evidence by sworn statement from Maxime Banga, Clerk of Parliament on 5^th December 2025 at 4:30pm. And at 5:00pm the Republic filed its Response to the application and its written submissions.
    
21. I heard Counsel for the parties orally in relation to the application and the written submissions filed.
    

The relevant Constitutional provisions.

22. Before I discuss the issues I will state the constitutional provisions relevant to the claims and the issues together with the relevant provisions of the standing Orders of Parliament as follows:
    1. Article 5 (1) (d) of the Constitution states-

“Fundamental rights and freedoms of the individual

(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health –

(a) ..............;

(b....................;

(c) ...............;

(d) protection of the law;”

2. Article 6 of the Constitution states-

“6. Enforcement of fundamental rights

(1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.”

100. Article 21(1) states-

“21. Procedure of Parliament

(1) Parliament shall meet twice a year in ordinary session.

(2) Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.

(3) Unless otherwise provided in the Constitution, Parliament shall make its decisions by public vote by a simple majority of the members voting.

(4) Unless otherwise provided in the Constitution, the quorum shall be two-thirds of the members of Parliament. If there is no such quorum at the first sitting in any session Parliament shall meet 3 days later, and a simple majority of members shall then constitute a quorum.

(5) Parliament shall make its own rules of procedure.”

4. Article 22 of the Constitution states-

“22. Speaker and Deputy Speakers

(1) At its first sitting after any general election Parliament shall elect a Speaker and one or more Deputy Speakers.

(2) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.

(3) The functions of Speaker may be exercised by a Deputy Speaker.”

5. Article 43 of the Constitution states-

“43. Collective responsibility of Ministers and votes of no confidence

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.”

23. The relevant provisions of the Standing Orders of Parliament for considerations are:-
    1. Standing Order 10: Powers and duties of the Speaker

“Powers and duties of the Speaker

10. (1) The Speaker presides at sittings of Parliament and is responsible for maintaining order. In exercising this duty, the Speaker may where the circumstances are deemed necessary request assistance from officers of Parliament.

(2) The Speaker may, if the circumstances deemed necessary, request assistance from the Members of the Police Force

(3) The Speaker presides over debates in Parliament and ensures that the Standing Orders, practices and procedures of Parliament are respected and observed by all Members.

(4) Where a Member of Parliament raises a point of order concerning the interpretation of a provision of the Standing Orders, the Speaker may suspend the proceedings temporarily to obtain advice from or through the Clerk prior to making a ruling on the issue.

(5) The Speaker does not participate in any debate before Parliament or vote. In the case of an equality of votes, the Speaker must give a casting vote and any reason stated by the Speaker must be entered in the Minutes of Proceedings.

(6) The Speaker shall read or cause to be read by the Clerk the results of any vote or debate of the Parliament.

(7) The Speaker represents the Parliament on all official occasions and signs any official document originating from the Parliament.”

2. Standing Order 11: Office of the Clerk provides:

Office of the Clerk

11. (1) The Clerk is appointed by the President of the Republic on the advice of the Parliamentary Management Board.

(2) The Clerk is responsible for keeping the Minutes of Proceedings of Parliament. The Minutes must record in respect of every sitting, the attendance of Members, all decisions taken, and details of every vote held. The Minutes of Proceedings are printed and distributed to all Members and a record of the Minutes is tabled at the beginning of the next following session.

(3) The Clerk is responsible for the safekeeping of all records in written, audio and electronic form, books, bills and any other documents tabled in Parliament, which are open to inspection by Members at all reasonable hours.

(4) The Clerk is responsible, under the direction of the Speaker, for the administration of the secretariat of the Parliament and subject to the Parliamentary Management Board, has direction and control over all officers and staff of Parliament.

(5) The Clerk is responsible, under the direction of the Parliamentary Management Board for the administration of the budget of Parliament and must keep adequate accounting records and prepare an estimated budget of expenses for each financial year which must be submitted to the Parliamentary Management Board for prior approval.

(6) The Clerk performs such other duties arising under these Standing Orders, and all other duties in the service of Parliament assigned to the Clerk by Parliament, the Parliamentary Management Board or the Speaker.

(7) Whenever the Clerk is absent, incapable of performing the duties of the office of the Clerk, or the office of the Clerk becomes vacant, the powers, functions and duties of the Clerk are exercised and performed by a Deputy Clerk, or a person nominated for that purpose by the Speaker.

100. Standing Order 13: Ordinary Sessions provides:

“13. (1) Parliament must meet in two (2) ordinary sessions during one calendar year. Each session must be divided into one or more meetings as the case may be.

(2) The first ordinary session of Parliament must commence on the second Thursday of May in the calendar year.

(3) The second ordinary session of Parliament must commence on the first Thursday of November in the calendar year.

(4) The Speaker must summon Parliament to meet in an Ordinary Session as specified in paragraph (2) and (3) at least fifteen (15) days before the specified date.

(5) The Clerk must send to each Member a notice stating an ordinary session will commence on the date specified in paragraphs (2) and (3).

(6) The notice containing the list of all bills to be considered in the session must be given at least fifteen (15) days before the date appointed for the opening of the session.

(7) When at the end of any meeting, an ordinary session is adjourned to be continued during another meeting, the Speaker informs the Members of the date on which the next meeting commences.

(8) Under normal circumstances Parliament and its committees do not meet in the periods of December 15^th to January 15^th or July 15^th to August 15^th.

(9) The dates of the first and second ordinary sessions referred to in paragraphs (2) and (3) apply unless Parliament approves by resolution a sitting calendar with alternative dates for the first and second ordinary sessions.

(10) A sitting calendar referred to in paragraph (9) must be approved at the second ordinary session in a calendar year to operate for the following calendar year, except where there is an election in the following year.

(11) The sitting calendar is prepared in the following manner:

(a) Government must submit to the Speaker a proposed sitting calendar for the Parliament no later than fifteen (15) days before the date appointed for the opening of the second ordinary session;

(b) the Speaker must prepare a sitting calendar of the proposed dates of sitting for the Standing Committees no later than fifteen (15) before the date appointed for the opening of the second ordinary session;

(c) the proposed sitting calendar for the Parliament and for the Standing Committees must be sent to each Member with the notice for the second ordinary session under paragraph (6).

(12) If Parliament is dissolved on the date of commencement of the first ordinary session or the second ordinary session in a calendar year as specified under paragraphs (2) or (3), the next ordinary session commences no earlier than thirty (30 )days before and no later than sixty (60) days after the date of the last day of the first sitting after an election.”

4. Standing Order 20: provides for Order of Business at a sitting:

“Order of business at a sitting

20. (1) The Clerk prepares an agenda for each sitting day showing the business to be placed before Parliament, together with such other information as the Speaker may, from time to time, direct.

(2) Except at the first sitting of an ordinary session or for an extraordinary session, the business of each sitting day is transacted in the following order:

(a) The Prayer
(b) Reading of the agenda by the Speaker;
(c) Confirmation of minutes;
(d) Business having precedence;
(e) Announcements by the Speaker;
(f) Presentation of Petitions;
(g) Statements by Ministers;
(h) Tabling of documents;
(i) Urgent debates;
(j) Business to be transacted on that sitting day pursuant to Standing Order 27;
(k) Announcement of Order of Bills for the next sitting day;
(l) Closing Prayer.
(3) A provisional agenda must be circulated at the end of the sitting day for the next sitting day. The final agenda for each sitting day must be circulated as early as possible before Parliament sits.
(4) For the purposes of paragraph (3), the Government must advise the Clerk as soon as possible the order in which the bills are to be placed on the agenda in accordance with Standing Order 29(2).

5. Standing Order 21: Business having precedence provides:

“Business having precedence

21. The following matters take precedence on any sitting day and must be listed for debate immediately following the reading of the agenda by the Speaker:

(a) No confidence in the Prime Minister;
(b) No confidence in the Speaker;
(c) Dissent from a ruling of the Speaker;
(d) Condolence or congratulatory motion.”

6. Standing Order 27: Order of Business During a week provides:

“Order of business during a week

(1) When the sitting day business has been transacted in accordance with Standing Order 20, Parliament shall proceed with its business, day by day, in the following order:

7. Standing Order 43: Written motion provides:

“Written motions

43. (1) A Member who wishes to move a written motion must give written notice by delivering to the Clerk a copy of the motion in French and English signed by the Member and by one other Member acting as seconder, not less than two (2) days before the day on which the Member intends to move the motion.

(2) The Clerk must give a copy of the motion to each Member within one day of receiving the motion.
(3) A motion for debate must contain only one topic and the rules contained in Standing Order 42 apply to the contents of any written motion.
(4) When a written motion has been moved and seconded, the Speaker proposes the question on it to Parliament in the same terms as the motion and a debate may then take place. The mover, or in the mover’s absence the seconder, is entitled to open such debate and has a right of reply.
(5) When the debate on the motion has been concluded, the question is put forthwith by the Speaker.
(6) A motion may be withdrawn by the mover with the consent of the seconder, and with the leave of the Speaker, before the question has been fully put on it, but if so withdrawn, the motion may be moved again at some other sitting after due notice.
(7) Should either the mover or the seconder withdraw support for the motion, the motion then lapses.”

8. Standing Order 44: Motions of no confidence provides:

“Motions of no confidence

44. (1) A Member who wishes to move a motion of no confidence must give written notice by delivering to the Clerk a copy of the motion in French and English signed by the Member and by one other Member acting as seconder, not less than seven (7) days before the day on which the Member intends to move the motion.

(2) The Clerk must give a copy of a motion of no confidence to each Member at least one day before the motion is to be debated.
(3) The rules contained in Standing Order 43(4)-(7) apply accordingly to any motion of no confidence.”

1. Standing Order 59: Ruling of the Speaker provides:

“Ruling of the Speaker

59. The ruling of the Speaker as to any question related to the application or interpretation of

these Standing Orders must not be challenged except on a written motion made in accordance with Standing Order 43.”

Discussion

24. Mr Kalsakau submitted that Motion No. 9 of 2025 was made in compliance with Article 43 (2) of the Constitution and that the Speaker’s ruling that the motion was not in order because no prior notice had been given to the Speaker was not in accordance with Article 43 (2), and that having closed Parliament on 14 November 2025 when Parliament was still sieged of the Motion was a denial of the applicant’s constitutional rights.
    
25. Mr Kalsakau placed reliance on the case authorities of Carcasses v Republic [2008] VUSC 79, Republic v Carcasses [2010] VUCA 34 and Natapei v Tari No. 1 [2001] VUSC 29 and Natapei v Speaker [2015] VUSC 12.
    
26. The submissions by the Attorney General in general support the submissions of Mr Kalsakau based on the same case authorities of Carcasses and Natapei.
    
27. Mr Blake on the other hand submitted that Article 43 (2) of the Constitution was not complied with by the applicants and that therefore there was no breach of any constitutional rights of the applicants. Counsel argued there was no notice issued by the applicants based on the evidence of Louise Loloma Vere and of Maxime Banga, the Clerk of Parliament. Mr Blake submitted that Court should note the phrase “ ..... a motion shall be given to the Speaker” used in Article 43 (2) of the Constitution which Mr Blake submitted should be construed sue generis according to Kilman v Speaker [2011] VUCA 15.
    
28. Mr Blake placed reliance on the case authorities of Shadrack v Simeon [ 2019] VUSC 173, Shadrack v Speaker [2020] VUCA 14, Kilman v Speaker of Parliament [2011] VUCA 15 and Weibur v Speaker of Parliament [ 2023] VUSC 119.
    
29. Mr Blake submitted that there was no impediment to the Parliamentary session being closed once all the business before it had been completed. As such counsel submitted no constitutional rights were breached.
    
30. I beg to differ with Mr Blake. From the evidence of Ms Louise Loloma Vere, copies of the Motion were given or served on her by Shadrack Gracia at 9:05am on 14^th November 2025. She receipted the Motion in English and French by stamping them with the Receipt showing “ RECEIVED 14/11/25 9:05AM”. She further registered the Motion and numbered it as Motion No. 9 of 2025.
    
31. Ms Vere then informed Mr Banga by SMS and provided him with a copy who deposed that he received a text message from Gracia Shadrack about the Motion at about 9:15am on 14^th November 2025. Subsequently he took the copy of the motion and made it available to the speaker.
    
32. The Speaker deposed to at paragraph 7 of his statement that at or around 10:50am on 14^th November 2025 he received a note about the Motion and that Mr Banga approached him and spoke to him about it. He then decided to suspend Parliament for 15 minutes resuming at 11:15am. However after considering Article 43 (2) further, the Speaker adjourned Parliament to 3:00pm that day. There is no evidence from the Speaker that he objected to the receipt and the registration of the Motion by Ms Vere at anytime.
    
33. These evidence show Parliament was seized of Motion No. 9 of 2025 when it was receipted and registered by the Secretary. When the speaker was informed of it by text message from Mr Banga, he had been notified. As a result he subsequently suspended Parliament at 11:15am which he extended to 3:00pm that day. By his actions the Speaker had acknowledged he received the Motion and he intended that it be placed before Parliament. The minute of proceedings deposed to by Mr Banga in his statement of 5^th December 2025 in paragraph 58, second part, reads:
    

“... I have only now been notified of it. In light of the earlier suspension of Standing Order 44 and today’s suspension of Standing Order 27, I intend to bring this Motion before Parliament and deal with it today if the House finds it appropriate rather than concluding the session with an unresolved Motion... “ ( my emphasis)

34. Mr Blake raised in his submissions some valid points when he argued that a motion of no confidence in the Prime Minister is a serious and important matter and that it should not be sufficient or adequate that service of the Motion should be done through a secretary, a cleaner or the clerk but directly to the Speaker himself, to satisfy the requirement of Article 43 (2) which states “ a motion shall be given to the Speaker”. Counsel submitted the case of Carcasses v Speaker set the precedence of how the mover of the Motion taking the courtesy to effect service personally on the Speaker.
    
35. That is the trite legal position as regards service of motions of no confidence but this case was not one where the Speaker had not been notified at all of the Motion. In the Minutes of Proceedings it is recorded he was notified and his intention was to bring the Motion to Parliament for debate that day, so it should not be left unresolved.
    
36. To submit therefore that there was no notice is clearly wrong and untenable.
    
37. With that said, the expectations by the applicants were that the motion was to be debated that day. However that was not to be when at 3:00pm the situation took a different turn. Instead, the speaker ruled Motion No. 9 of 2025 was not in order and closed Parliament.
    
38. The issues therefore are whether:
    
    1. Motion No. 9 of 2025 made in accordance with Article 43 (2) of the Constitution? The answer is “ Yes”. The cases of Carcasses and Natapei v Tari No.1 [2001] and Natapei v Speaker[ 2015] VUSC 92 reinforce this finding.
       
    2. The Speaker was correct in ruling that Motion No. 9 of 2025 was not in order because he was not given 7 day’s notice?
       

The answer is “ No”. He was given 7 days notice of the Motion from 14^th November. Parliament became seized of the Motion once it was receipted and registered by allocating a number at 9:05am. The Speaker stated his intention clearly at 11:15am that day and adjourned to 3:00pm that day. Sadly at 3:00pm that day the Speaker did the opposite. He ruled inconsistently with Article 43 (2) and the closed Parliament.

100. Having done so, the closure of Parliament at 3:00pm on 14^th November 2025 when Motion No. 9 of 2025 was still alive, the ruling and closure was unconstitutional as it breached the rights of the applicants to have the Motion debated by Parliament to complete the process in Article 43 (2).
     

4. The remedy is that Parliament must be reconvened to debate Motion No. 9 of 2025 as was decided in Natapei v Speaker [2015] VUSC 92.
   

39. The case authorities of Shadrack v Simeon [ 2019] and Shadrack v Speaker [2020] differ on their facts and do not assist the First respondent.
    
40. The case authorities of Kilman and Wiebur are in my opinion cases in favour of the applicants rather than the First Respondent.

The Result

41. The applicants are successful in their Constitutional application and it is allowed.
    
42. The formal declarations and orders are:-
    
    1. The First Respondent was and is incompetent of ruling on and disposing of Motion No. 9 of 2025 on his own motion and will.
       
    2. The Ruling of the Speaker dated 14^th November 2025 in summarily closing Parliament is unconstitutional and in breach of Article 43 (2) of the Constitution.
       
    100. The Ruling of the Speaker ruling out Motion No. 9 of 2025 and closing Parliament is unconstitutional and in breach of Article 43 (2) of the Constitution and are hereby set aide.
         
    4. Motion No. 9 of 2025 is in order and must be debated and voted on by Parliament in accordance with Article 43 (2) of the Constitution.
       
    5. The Speaker of Parliament be hereby required to immediately summon Parliament to debate on Motion No. 9 of 2025 on Tuesday 16^th day of December 2025 at 10:30am.
       
    6. The applicants are entitled to their costs on the standard basis as agreed, or taxed.
       

DATED this at Port Vila this 10^th day of December 2025

BY THE COURT

Hon Justice Oliver A Saksak