2 MILR 134

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 98-04
(High Ct. Civil No. 1998-215)
(High Ct. Civil No. No. 1998-214)

In The Matter of the 19th Nitijela Constitutional Regular Session,

By

Litokwa Tomeing in his official capacity as Senator of the Nitijela,
Petitioner,

and

In The Matter, of the 19th Nitijela Constitutional Regular Session,

By

Attorney General, ex parte,
Petitioner.

APPEAL FROM THE HIGH COURT

SEPTEMBER 8, 1999

FIELDS, C. J.
GOODWIN, A.J. pro tem,1 and KING, A.J. pro tem2

SUMMARY:

The Supreme Court affirmed the High Court's ruling that Members of the Nitijela are constitutionally required to vote on motion of no confidence and the attempts to boycott such votes are illegal.

DIGEST:

1. COURTS - Jurisdiction - Nitijela Proceeding Non justiciable: Procedural matters, as distinguished from legislative acts, are committed to the discretion of the Nitijela are not subject to judicial review.

2. CONSTITUTIONAL LAW - Construction - Rules of Interpretation: In the absence of some textual or logical support, the Supreme Court will not read into the Constitution a provision not contained therein.

3. CONSTITUTIONAL LAW - Nitijela - Vote of No Confidence: Members of the Nitijela are under an obligation to vote on a motion of no confidence once noticed. The language of Article 1, § 2(2) that requires the vote to be held not earlier than 5 days nor later than 10 days is not permissive and suggests that prompt action by the Nitijela is not only recommended but required.

4. COURTS - Jurisdiction - Nitijela Proceeding Non justiciable: Internal matters of voting and procedure (i.e., voting by secret ballot or roll call) appear to be easily resolvable by the Nitijela according to its own procedural rules, without the assistance of the Court, and indeed considerations of separation of powers leaves the matter exclusively in the hands of the Nitijela.

OPINION OF THE COURT BY GOODWIN, A.J.

Petitioners appeal the judgment of the High Court (Chief Justice Cadra, presiding) which essentially denied declaratory relief to the petitioners in a controversy among Senators after six members of the Nitijela brought a motion of no confidence against the President. Before a vote was taken, a number of Senators walked out of the session, at the direction of the President, and refused to return. This resulted in less than a quorum remaining. In the absence of a quorum, the ten-day voting period, specified by the Constitution for a vote on such a motion, expired.

The parties sought relief by way of declaratory judgment before the High Court, which accepted jurisdiction and entered judgment against petitioners on September 29, 1998. We have jurisdiction, and for the reasons which appear below, dismiss the appeal.

The Controversy

As noted, six members of the Nitijela, including Senator Tomeing, brought a motion of no confidence in the Cabinet, pursuant to Article V, § 7(1) of the Constitution. A contemporaneous motion demanding a secret ballot was filed. Members opposed to the no confidence motion demanded a roll call vote. The Speaker ruled that the vote would be by secret ballot and called a recess so that ballots could be distributed. No appeal was taken from this ruling. Instead of appealing the ruling of the Speaker, Senators loyal to the President walked out of the session and refused to return.

The Constitution provides that the Nitijela cannot transact business without a majority of the senators being present Article IV, § 15(8). The walkout of the Senators loyal to the President left less than a quorum and thus prevented the Nitijela from considering any business, including the motion of no confidence. The Constitution explicitly states that a motion of no confidence "shall be voted on at a meeting of the Nitijela held not earlier than 5 days nor later than 10 days after the date of the giving of the notice." Art V, § 7(2).

After the 10-day voting period had passed, the Senators loyal to the President claimed that the motion had "lapsed" and was therefore moot. The Senators who brought the motion disagreed, claiming that the motion was still pending and had to be voted upon by the Nitijela before any further business could be transacted.

The Complaint for declaratory judgment asked the High Court to decide whether the vote on the motion should be by roll call or by secret ballot, and whether the motion had "lapsed." The High Court declined to answer the question of the method of voting on the ground that it was an internal-procedure question which the Nitijela should answer by following its own rules of procedure. The court answered the collateral question by holding that the motion had not "lapsed," but the Court did not dispose of the controversy.

While the parties do not agree on the characterization of the issues we are asked to decide, the following questions are presented by the record:

(1) Is there a judicial remedy for Nitijela's failure to act on the motion of no confidence within the 10-day time frame specified by the Constitution?

(2) Did the motion lapse, or is it still pending?

(3) Did the High Court correctly refuse to issue an advisory opinion on voting procedure?

Discussion

The Constitution of the Marshall Islands does not speak directly to the issues presented in this case, and the briefs of the parties and the opinion on of the High Court reveal little relevant case law from the Marshall Islands. We begin with the proposition that we have a duty under the Constitution, Article VI, Section 1, to review a judgment of the High Court that declares unconstitutional an act of the Nitijela, or that enforces an act of the Nitijela over the protest of an appellant who asserts that the act is unconstitutional. Obviously, neither constitutional issue is presented in this appeal. The legal, as distinguished from constitutional, questions remaining for judicial review after the High Court declined to rule on the internal housekeeping questions that were presented in the Complaint for Declaratory Judgment, are essentially legislative procedural questions rather than substantive questions arising under the constitution and laws of the Republic.

A. Constitutional Provisions

Article IV, Section 13 provides, in part:

(1) The President may, by writing signed by him, dissolve the Nitijela if:

(a) a motion of no confidence in the Cabinet has twice been carried and has twice lapsed, and no other President has held office in the interval between the two votes of no confidence ....

Article V, Section 7 provides:

(1) At any meeting of the Nitijela, any 4 or more members ... may give notice of their intention to make a motion of no confidence in the Cabinet.

(2) Any such motion shall be voted on at a meeting of the Nitijela held not earlier than 5 days nor later than 10 days after the date of the giving of the notice.

(3) If the motion of no confidence is carried by a majority of the total membership of the Nitijela, the President shall be deemed to have tendered his resignation from office.

(4) If the Nitijela has not elected a President at the expiration of 14 days after the date on which the President is so deemed to have tendered his resignation from office, the vote of no confidence and the tender of the President's resignation shall lapse.

(5) In any case where a vote of no confidence has lapsed, notice of intention to make a motion of no confidence in the Cabinet may not again be given until the expiration of 90 days after the date on which that vote of no confidence lapsed, unless there has sooner been an appointment of the members of the Cabinet, following the election of a President.

B. Opinion of the High Court

The High Court began by asserting that "Constitutional interpretation requires the making of `value judgments' and is not strictly governed by technical rules of statutory construction." [Opn. p.1] The court also noted the "crucial nature of a motion of no confidence" in the parliamentary system of government. With this background, the court went on to consider whether the failure of the Nitijela to vote on the motion within the 10-day period provided in Article V, § 7(2) caused the motion to lapse or to be rendered moot and ineffective, as the government argued. Considering the "plain and obvious meaning" of the Constitutional provisions, the court found that the government's position was unsupported because it "appears well settled that a failure to comply with a time limit does not relieve the duty to act and/or render subsequent action void where the statute or rule does not provide for consequences upon a failure to comply." [Opn. p.5].

The court went on to examine the constitutional provisions "so as to give effect to the intent of the framers and the people who adopted it" by using a "broad, liberal or equitable" analysis. [Opn. p.7]. The court determined that the legislature's duty to vote on the motion of no confidence within 10 days was mandatory by virtue of the use of the word "shall," ("Any such motion shall be voted on...", Art V, § 7(2)), and therefore determined that the legislature's evasion of its responsibility was contrary to the constitutional mandate. The court also observed that "[t]o hold that the motion has `lapsed' or is `rendered moot and ineffective"' because the vote did not occur within the required 10 days would permit the evasion of a mandatory Constitutional duty by unconstitutional means.... The framers of the Constitution surely did not intend such a result." [Opn. p.10].

The court then concluded that:

"... the motion for vote of no confidence did not lapse under the circumstances presented in this case and, in order to effectuate the performance of a mandatory duty, the court further holds that the Nitijela session does not terminate until the vote is had. The proper remedy in this particular 'crisis' is to hold that the vote should occur on the first day a quorum is [obtained]." Id.

The court went on to find that the other issues presented by the parties (i.e., whether the vote should have been conducted by secret ballot or by roll call, and whether the Speaker's determination was appealable to the full Nitijela) were political decisions committed to the discretion of the Nitijela by the Constitution, and were therefore inappropriate for judicial review under the doctrine of separation of powers. [Opn. p.11]. We agree.

C. Analysis

Appellants do not present any argument addressing directly the judgment of the High Court, but rather contend that the court should have addressed the two issues presented in the complaint (i.e., the constitutionality of the Speaker's ruling and whether the ruling was appealable under Nitijela procedural provisions).

[1] The Appellees ("the Senators") contend that the questions not addressed by the High Court are indeed political in nature and should be resolved internally by the Nitijela. Specifically, Article IV § 15(1) of the Constitution states that "the Nitijela may from time to time make rules for the regulation and orderly conduct of its proceedings and the despatch of its official business." Furthermore, § 16(3) provides that the "validity of any proceeding in the Nitijela... shall not be questioned in any court; but this shall not be taken to preclude judicial review of the validity of any Act or resolution of the Nitijela." The Senators and the High Court take this as a firm commitment of procedural matters, as distinguished from legislative acts, to the discretion of the Nitijela. We agree.

Although the Government contends that the motion of no confidence "lapses" after ten days, the word "lapse" appears to have a specific and narrow meaning when considered in context. In Article V, § 7(4), "lapse" refers to a situation in which a vote of no confidence is carried, but the Nitijela fails to elect a new President within 14 days. On its face, this provision seems designed to preserve the Presidency - one could easily imagine a situation in which the Nitijela ousts an incumbent President but its members cannot agree on the selection of a new President. In that event, the former President would resume his or her responsibilities, and the country would not be without a President for more than 14 days.

[2] The provisions concerning the timing of the vote seem to serve an entirely different purpose. The High Court surmised that the five to ten day window set forth in Article V was designed to ensure that the vote on a motion of no confidence would be timely (not delayed more than ten days) but not so soon that the President would be surprised (less then five days). In contrast to 7(4), there is no mention of a "lapse" - it is simply assumed that the Nitijela will perform its duty to vote on the motion in a timely fashion. Also, there does not seem to be any reasonable purpose served by reading in a lapse provision. Indeed, providing for a lapse on the motion of no confidence would facilitate the obstruction to orderly process by allowing a minority of the Nitijela to cause a loss of a quorum and prevent the body from fulfilling its constitutional duty to vote. We believe it would be counter-productive to read in a "lapse" provision in the absence of some textual or logical support for such an interpretation. The High Court decided this question correctly.

[3] While we do not adopt the full text of the High Court's opinion, we agree that the members of the Nitijela are under an obligation to vote on the motion. The language of the provision is not permissive, and the limited time frame suggests that prompt action by the Nitijela is not only recommended but required. Therefore, those senators who obstructed the vote were behaving unlawfully. See Article l, § 2(2). However, the Constitution does not explicitly provide a remedy or penalty for legislative conduct. The result of this silence is to leave the matter with the Nitijela for the enforcement of its existing rules of procedure, or the amendment of them if they are deemed by the Nitijela to be incomplete or inadequate.

[4] As to the questions the High Court declined to address, these internal matters of voting and procedure appear to be easily resolvable by the Nitijela according to its own procedural rules, without the assistance of the Court, and indeed, considerations of separation of powers leaves the matter exclusively in the hands of the Nitijela.

We therefore do not reach the question whether the ruling of the speaker pursuant to Section 26 of the Nitijela Rules of Procedure contravenes Article IV, § 15(5) of the Constitution. The constitutional provisions do not require that the no confidence vote be conducted by secret ballot. The general provision states that "[w]hen any question is put to the Nitijela, any member may call for a roll-call vote thereon, unless this Constitution requires that vote to be by secret ballot." Article IV, § 15(5). Accordingly, while the Speaker's actions may have been subject to an appeal by aggrieved senators, we need not express a judicial view of the matter. The procedural rules of the Nitijela provide that a vote may be had by secret ballot upon request by three or more Senators, unless a roll-call vote has been requested pursuant to Rule 27(1). Rule 27(1) does not require any particular form for the roll-call vote request. Moreover, the Constitution does not suggest that any particular remedy is required. Pursuant to Rule 113 (2), the ruling by the Speaker (that the vote would be by secret ballot) was subject to appeal to the membership as it did not involve an interpretation of the Constitution.

Conclusion

The Nitijela's procedural rules govern the conduct of votes and allow for removal of a Speaker if a majority so votes. We find nothing in this record to suggest that the internal rules of the Nitijela are not adequate to provide for the orderly conduct of legislative business.

Accordingly, the judgment of the High Court remains in effect. The appeal is dismissed for want of a Constitutional question.

Gerald M. Zackios, Attorney General
Filimon Manoni for Appellants
David M Strauss for Appellee

_____________

1Honorable Alfred T. Goodwin, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation by the Cabinet.

2Honorable Samuel P King, Senior Judge, United States District Court for the District of Hawaii, sitting by designation by the Cabinet.