In re the Constitution of Nauru [1971] NRSC 7; [1969-1982] NLR (A) 5 (5 March 1971)

[1969-1982] NLR (A) 5

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 1 of 1971

IN RE the Constitution of Nauru

And

IN RE the Electoral Act 1965 -1970

And

IN RE an election in the constituency of Ubenide

5th March, 1971

The Constitution - Article 29 - meaning of "elected in such manner"

The Constitution - Article 29 - right to vote

The Constitution - Article 29 - provisions of section 8(2) of Electoral Act 1965-1970 whether repugnant to Article 29.

Proceedings on removal from the Court of Disputed Elections under Article 54 of the Constitution. The issue raised was whether the provisions of section 8(2) of the Electoral Act 1965-1970 are repugnant to those of Article 29 of the Constitution. Article 29 reads:

"29. Members of Parliament shall be elected in such manner as is prescribed by law, by Nauruan citizens who have attained the age of twenty years."

Section 8(2) of the Electoral Act 1965-1970 reads:

"(2) A Nauruan is not entitled to have his name entered on or retained on a roll or to vote at an election if-

(a) he is of unsound mind; or

(b) he has been convicted and is under sentence for an offence punishable under a law in force in Nauru by imprisonment for one year or longer."

(Note: Section 8(2) has subsequently been repealed by the Electoral (Amendment) Act 1973.)

Held: (1) The effect of Article 29 is to enfranchise generally Nauruan citizens of the age of twenty years and over.

(2) the words "shall be elected in such manner as is prescribed by law" are to be construed narrowly, i.e. as relating to the procedure for elections, and not broadly so as to permit the exclusion of some Nauruan citizens of the age of twenty years and over from voting.

(3) Therefore, section 8(2) of the Act is inconsistent with Article 29 and consequently void.

P.H. MacSporran for applicant
D.J.A. Dowdall for Returning Officer

Thompson, C.J.:

These proceedings came before this Court on removal from the Court of Disputed Elections under the provisions of Article 54 of the constitution. The issue to be determined is whether the provisions of section 8(2) of the Electoral Act 1965-1970 are repugnant to those of Article 29 of the Constitution.

Article 29 reads:

"29. Members of Parliament shall be elected in such manner as is prescribed by law, by Nauruan citizens who have attained the age of twenty years."

Section 8(2) of the Electoral Act is as follows:

"(2). A Nauruan is not entitled to have his name entered on or retained on a roll or to vote at an election if-

(a) he is of unsound mind; or

(b) he has been convicted and is under sentence for an offence punishable under a law in force in Nauru by imprisonment for one year or longer."

Subsection (1) of section 8 of the original ordinance was repealed by the Electoral Ordinance Amendment Act 1970 and now is in the following form:

"(1) Subject to the next succeeding subsection every Nauruan who is over the age of twenty years is entitled to have his or her name entered on a roll."

Although, therefore, subsection (2) is part of the original ordinance and remains unaltered, reference is made to it in the new subsection (1). Generally the Courts are reluctant to set aside as ultra vires the provisions of an Act of a Parliament. However, Mr. Dowdall, who appeared for the Returning Officer, pointed out that the provisions of subsection (2) of section 8 of the Act must be void for uncertainty insofar as they relate to the disqualification of persons of unsound mind and Mr. MacSporran for the applicant accepted that contention as correct. Mr. Dowdall also pointed out the unusual, and almost absurd, effect of the provisions in relation to persons convicted of certain offences. Conviction of an offence punishable by imprisonment for one year or longer e.g. common assault, would disqualify the person concerned from having his name retained on the electoral roll while he was under sentence, even if the sentence were only a fine; he would than, apparently, have to be enrolled again before he could vote as an elector. As Mr. MacSporran rightly stressed, the fact that legislation could have an unexpected, or even absurd, result which the legislature probably never envisaged does not invalidate that legislation. If it is within the powers of Parliament to enact such a provision, the Courts must give effect to it. However, where it is part of an Ordinance which was made before the Constitution was framed, the fact that it has an absurd result may be relevant in considering whether it has ever in fact received the detailed attention and approval of Parliament. In the case of subsection (2) of section 8, not only can part of its provisions have an absurd result but the remaining part is undoubtedly invalid. It is difficult to believe, therefore, that in enacting a new subsection (1) to section 8 last year and referring therein to subsection (2), Parliament in fact gave full attention or approbation to subsection (2).

All Ordinances which were in force in Nauru immediately before Independence Day were continued in force by Article 85 of the Constitution, subject to the Constitution. They ceased to have effect insofar as their provisions were inconsistent with the Constitution; Article 2 made that specific provision.

Mr. MacSporran has submitted that the provisions of subsection (2) of section 8 relating to the disqualification of persons under sentence are valid because Article 29 permits the manner of election of members of Parliament to be prescribed by law. He has contended that the expression "manner" of election embraces not only the mechanics of election but also the entitlement to participate in an election. With respect, I consider that to give such a broad effect to the word "manner" would be to strain its meaning too far. The manner in which something is done is the way, or mode, of its being done. If, without the words "in such manner as is prescribed by law", Article 29 would have the effect of enfranchising all Nauruan citizens aged twenty years or more, Parliament could not lawfully disenfranchise any of them in purported exercise of its power to prescribe the manner of election. If, however, without those words the Article would mean only that the electors were to be Nauruan citizens but that not all citizens were necessarily to be entitled to be electors, there would be no reason why Parliament should not legislate to provide which citizens were to be so entitled and which were not.

In construing the meaning of Article 29 it is proper generally to apply the principles of construction applicable to the construction of Acts and Ordinances, principles which have been developed in the English Courts over the centuries since Heydon's case in 1584. The first question for the Court to decide is whether or not the words in their context are unambiguous. In my opinion there is ambiguity; it is possible for Article 29 to bear either of the two meanings which I have just suggested.

Where there is ambiguity, the Court normally looks first at the law as it was before the enactment of the provisions under consideration. If the later legislation does not specifically alter or replace the old law, it is usually construed as being intended not to do so. Here, however, the position is somewhat different from the enactment of a new Act of Parliament on a subject already dealt with by a previous Act or by the common law; the Constitution was adopted as an entirely new supreme law for the newly independent Republic. It contains specific recognition that some existing law may be inconsistent with its provisions and it invalidates such law to the extent of the inconsistency; but it does not set out to deal with such inconsistent law in detail. The fact, therefore, that no clear provision is made denying Parliament the power to disqualify potential electors does not, in my opinion, have the significance which it might have had if Article 29 were a section in an Act of Parliament.

In order to interpret Article 29, it is necessary to examine it in its context. It is in Part IV of the Constitution, which relates to the Legislature. Other Articles in that part establish Parliament, give it powers, subject to the Constitution, to make laws, provide for its membership, its officers, its powers, privileges and procedure and for other matters relating to it. Article 29 has the effect of bestowing the voting franchise on Nauruan citizens of the age of twenty years or more for the purpose of the election of members of Parliament. It is, I think, significant that specific provision is made for the manner of holding elections to be prescribed by law; if it was intended that it could be prescribed by law which Nauruans aged twenty years or more should be entitled to vote and which should not, it is surprising that a similar specific power so to prescribe that by law should not have been included in the Article. Article 29 may be contrasted with the equivalent sections of the Constitution of the Commonwealth of Australia which provide clearly for Parliament to decide on the qualifications of electors.

In construing ambiguous provisions of statutes the Court may properly consider whether one construction gives a result which accords better than the other with the general intention of the statute as evidenced by its contents generally or whether one construction leads to an absurd result while the other does not in this instance neither construction leads to an absurd result. If Parliament has no power to disenfranchise any person by a simple Act of Parliament, it can do so by amending the Constitution; and it may possibly be regarded as desirable and more in accord with the general intention of the Constitution, particularly as evidenced by the provisions of Part II, that Parliament should not be able to disenfranchise any Nauruan citizen except by alteration of the Constitution in the manner prescribed in Article 84.

Having given most careful consideration to all the matters urged upon this Court by Mr. MacSporran and being mindful that generally the Court should endeavour to uphold as valid laws which are not clearly ultra vires the Constitution, particularly where they have been enacted, or reviewed, by Parliament since Independence, I have nevertheless come to the conclusion that the effect of Article 29 is to enfranchise generally Nauruan citizens of the age of twenty years and over and that any law purporting to disenfranchise any of them is void, while the Constitution remains unaltered.

I shall, therefore, make the declaration sought by the Returning Officer that subsection (2) of section 8 of the Electoral Act is void for inconsistency with Article 29 of the Constitution.