Robati v Privileges Standing Committee - Judgment 3 [1994] CKHC 1 (7 February 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
CA 156/93

BETWEEN

PUPUKE ROBATI
Plaintiff

AND

THE PRIVILEGES STANDING COMMITTEE
of The Parliament of The Cook Islands
First Defendant

AND

THE SPEAKER
of the Parliament of the Cook Islands
Second Defendant

Coram: Quilliam JA (Presiding)
Barker JA
Dillon JA

Counsel: Mr McFadzien, Solicitor General, and
Dr GP Barton QC for the defendants in support
BH Giles, MC Mitchell and Mrs SRA Anderson for the plaintiff to oppose

Hearing: 17 December 1993
Date of Judgment: February 1994

JUDGMENT OF BARKER JA

I agree with the judgment of Quilliam JA which I have read in advance. However, in view of the importance of the issue, I add some observations of my own.

Quilliam JA's judgment sets out the relevant constitutional provisions, and the allegations in the statement of claim which the defendants seek to have struck out. It is not necessary therefore for me to reproduce these.

Nor is it necessary to discuss the hallowed English authority of Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1881) 12 QBD 271, accepted in all Commonwealth jurisdictions where the matter of Parliamentary privilege has been considered by the Courts.

The essential point is to distinguish between "the intra-mural deliberative activities of the Parliament" and "the constitutionally required process." Barwick CJ in Cormack v Cope, (1974), 131 CLR 432, 453, was the author of the expressions just used. He was referring to the process of law making but his comments apply to the constitutionally required processes:

(a) that Parliament, within its intra-mural deliberative activities tries persons for offences which were offences at the time of commission; and

(b) that the punishment imposed by Parliament be one which comes within the limits that Parliament had placed on itself. The Court can interfere only when the constitutionally required process has not been honoured.

The landmark case in the Supreme Court of Zimbabwe, Smith v Mutasa (1990) 1 LRC (Const) 87 is totally appropriate since Zimbabwe, like the Cook Islands, has a written constitution. The Court held it could interfere where a Parliamentary Privileges Committee had imposed a penalty which, under the relevant legislation, the Committee had no power to impose. The Court made clear that it could not interfere with the process whereby a Parliamentary Committee dealt with a member, provided its processes were valid in law, and that the penalty was one open to the Committee to impose. However, in this case, it is alleged by the plaintiff that there was no offence in existence at the time of the incident for which he appeared before Parliament, and, more importantly, that there was no power for the Parliament to impose an indefinite suspension.

Counsel for the defendants sought to distinguish Smith v Mutasa on the basis there was no equivalent in Zimbabwe to Article 47(2) of the Cook Islands Constitution. I fail to see how that omission is material. Counsel submitted that, in s36(1) of the Constitution, the word "valid" should be inserted before the word "proceedings" if the plaintiff were to succeed. I do not find this result surprising. It is a necessary consequence of holding that the Constitution entitles the Court to consider whether Parliament is acting within its rights.

As was pointed out in Mutasa's case, the Court can declare whether or not a particular matter comes within the scope of Parliamentary privilege, but the control of Parliament over internal proceedings is absolute on the Bradlaugh v Gossett authority.

So far as the recommendation that the plaintiff apologise, the Committee could doubtless make a recommendation but it had no power of punishment if the recommendation were not accepted by the plaintiff. The right to counsel before the Parliamentary Committee was a matter for the internal forum of Parliament; it is not something which the Courts can consider.

I agree with Quilliam JA that the defendants' application should be dismissed. I express the hope that a sensible resolution of this matter can now eventuate without the need for continuing the litigation. Apart from anything else, it is unfortunate that the citizens in the electorate represented by the plaintiff should be deprived of representation in Parliament because Parliament has imposed a suspension on their member which it was not entitled to impose.

BARKER JA

Solicitors:
MC Mitchell & Co, Avarua for plaintiff
Crown Law Office, Avarua for defendants