In re Article 36 of the National Constitution [2008] NRSC 13; Constitutional Reference No 2 of 2008 (20 December 2008)

IN THE SUPREME COURT OF NAURU.

CONSTITUTIONAL REFERENCE NO. 2/2008

PURSUANT TO ARTICLE 36 OF THE NATIONAL CONSTITUTION

Kate Leroy for the Hon. Speaker.
Pres Nimes for the Hon. David Adeang

Date of Hearing 20th December, 2008.

ANSWERS FOR REFERENCE

Reference by the Hon Speaker pursuant to Article 36 of the Constitution:-

......."36. Any question that arises concerning the right of a person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court"

The reference sets out in some detail background and reasons for the indefinite suspension of the Member for Ubenide, the Hon. David Adeang: the member’s refusal to apologise for certain remarks despite a resolution of the House, that he has now been absent from sittings for more than two months and so on.

The Court regards these matters merely as background to an answer to this Reference. Proceedings in Parliament are matters for Parliament itself and no Court should express an opinion about, much less interfere in them.

This view is echoed by Parliament itself. Section 26 of the Parliamentary Powers, Privileges and Immunities Act:

"26. Neither the Speaker nor any Officer of the Parliament shall be

subject to the jurisdiction of any Court in respect of the lawful exercise of any power conferred on or vested in the Speaker or the officer by or under this Act."

Suffice it to say that the Speaker complains that he has found it difficult to cope with Mr. Adeang’s conduct. The justification or otherwise of the Speaker’s complaints are not matters for the Court.

Questions referred:

A. Is a Member who is absent from Parliament on every day on which a meeting of Parliament is held during a period of two months or more by reason of the fact that he is under suspension from Parliament throughout that period, and who is not granted leave of absence in respect of any or all those sittings, ‘absent without leave’ for the purposes of Article 32(1)(d) of the Constitution?

B. If the Answer to question A is "yes", has the Member of Ubenide, Hon. David Adeang MP, vacated his seat by virtue of being absent without leave on every day on which Parliament has sat for a period of five months and two days?

C. If the answer to question A is "no", is the reason of such question being answered in the negative that a Member who is suspended from service to Parliament is absent:

(i) because his absence has been mandated by Parliament and because he is under section 9 of the Parliamentary Powers Privileges and Immunities Act prohibited from entering the Parliamentary precincts; and/or

(ii) because a Member in such position need not obtain leave and is in fact not ‘absent ‘without leave’ for the purposes of Article 32(1)(d)?

4. Does Article 36 impose on the Speaker an obligation to first refer the matter to the Supreme Court for an opinion before declaring any Member to have vacated his seat by virtue of Article 32(1) (b) or (d)?
   

The member is not absent without leave. An involuntary absence has been imposed on him. Leave is implied by the suspension - involuntary leave but leave nevertheless. It would be most unfair if a member could suspended, the suspension continue for more than two months and he (or she) then be declared to have vacated his (or her) seat; expulsion from Parliament by the back door. Furthermore the reason for suspension may have no relevance to the more drastic penalty of expulsion from Parliament.

The answer to question A is no.

Question B. no answer required.

Question C. the answer to (i) is yes for the reasons already given.

(ii)The Court does not express an opinion

Question D. Article 36 is mandatory "Any question ... shall be referred to and determined by the Supreme Court".

I have had a short opportunity to scan two previous judgments of this Court.

The earlier is Case No. 3A/88 "In the Matter for a Reference to the Supreme Court by Mr. Bobby Eoe -Petitioner

"Donne CJ gave a long and careful judgment. The ratio decidendi is toward end:

"Consequently this Court, I am satisfied has no jurisdiction to review what is here a proceeding in Parliament and application to do so is declined:"

I respectfully agree.

My immediate predecessor Connell CJ in Misc. Cause 9/2002 Pres Nimes Ekwona V Secretary for Justice Returning Officer – another case involving the computation of days absence - very properly followed the decision of Donne CJ.

Both decisions may be distinguished from this Reference. My predecessors were dealing with a quite different issue, the computation of the length of absences which it seems were voluntary whereas this Reference covers not the length of an absence but the nature of an absence because of suspension.

The answer to question D is yes.

ROBIN MILLHOUSE
CHIEF JUSTICE