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Supreme Court of Nauru |
IN THE SUPREME COURT OF NAURU
Constitutional Reference: 01/2008
IN THE MATTER OF ARTICLE 55 OF THE CONSTITUTION &
IN THE MATTER OF ARTICLE 45 OF THE CONSTITUTION
(& ARTICLES 36 & 40)
Date of Hearing: 4th, 5th April 2008
Date of Judgment: 7th April 2008
Ms. Kristen Walker for the Petitioners
Mr. Pres Nimes for the Respondents
DECISION
Article 2 – Supreme Law of Nauru
"2 (1) This Constitution is the supreme law of Nauru..."
"What does the Constitution say?" (Sir Robert Menzies quoting his leader in an early Australian constitutional case.)
Article 55 –The Cabinet may refer questions on Constitution to the Supreme Court
"55. The President or a Minister may in accordance with the approval of the Cabinet, refer to the Supreme Court for its opinion any question concerning the interpretation or effect of any provision of this Constitution which has arisen or appears to the Cabinet likely to arise, and the Supreme Court shall pronounce in open court its opinion on the question."
Pursuant to Article 55 The Honourable Mathew Batsiua, Minister for Justice on the 26th March 2008:
"In the Matter of Article 55 of the Constitution and In the Matter of Article 45 of the Constitution [and Articles 36 and 40]
Background
Questions Referred to the Supreme Court
Ms. Kristen Walker of the Victorian Bar was granted admission to the Nauruan Bar and represented the Minister.
Eight Members of the Parliament wrote to the Court requesting to make submissions. Mr. Pres Nimes Ekwona made the submissions on their behalf.
The first point for decision is to what extent, if at all, the Supreme Court of Nauru may review what Parliament has done, is doing or may do?
Article 90 – Powers privileges and immunities of Parliament
"90. Until otherwise declared by Parliament, the powers, privileges and immunities of Parliament and of its members and committees shall be those of the House of Commons of the Parliament of the United Kingdom of Great Britain and Northern Ireland and of its members and committees as at the commencement of this Constitution."
The House of Commons has consistently asserted its own privileges. As Erskine May (19th Edition @ 200) puts it:-
"The House of Commons claims that it’s admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned its claim to treat as a breach of privilege the institution of proceedings for the purpose of bringing its privileges into discussion or decision before any court or tribunal elsewhere than in Parliament. In other words, it claims to be the absolute and exclusive judge of its own privileges, and that its judgements are not examinable by any other court or subject to appeal."
[Erskine May goes on to point out that,
"On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice."]
Article 37 – Powers privileges and immunities of Parliament
"37. The powers, privileges and immunities of Parliament and of its members and committees are such as are declared by Parliament."
Mr. Peter MacSporran in his excellent commentary on the Constitution published last year – a work which has been most useful in my coming to conclusions on this Reference: I have consulted it constantly – refers in his commentary on Article 90 to Section 21 of the Parliamentary Powers, Privileges and Immunities Act 1976:-
"21. In addition to the powers, privileges and immunities expressly provided for in this Act, the Parliament and members shall have all the powers, privileges and immunities which the House of Commons of the Parliament of the United Kingdom and its members have for the time being, except any of such powers, privileges and immunities as are inconsistent with or repugnant to the Constitution or the express provisions of this Act."
Mr. MacSporran goes on:-
"This is of course, an unfortunate provision as it raises more questions than it answers. It encourages members to think they have more powers than they do and experience shows that the view of Westminster tends to come with blinkers that blot out the Constitution. The House of Commons is not burdened by a Constitution and many of its powers and privileges cannot survive consideration of the provisions of this Constitution."
He hits the nail on the head –
"The House of Commons is not burdened by a Constitution".
The Parliament of Nauru is.
What difference does it make? Perhaps the most direct way of answering that question is by referring to a passage from the judgement of Barwick C.J in Cormack v. Cope (131 CLR 432 @ 454). [The Parliament of the Commonwealth of Australia, like the Parliament of Nauru is "burdened by a Constitution".]
"...it is not the case in Australia, as it is in the United Kingdom, that the Judiciary will restrain itself from interference in any part of the law-making process of the Parliament. Whilst the Court will not interfere in what I have called the intra-mural deliberative activities of the House, including what Isaacs J. called "intermediate procedure" and the "order of events between Houses", there is no parliamentary privilege which can stand in the way of this Court’s right and duty to ensure that the constitutionally provided methods of law-making are observed."
The same point has been made many times since in many different jurisdictions. I give an example. In Teangana v. Tong ((2004) KICA 18) the Court of Appeal in Kiribati discussed "internal proceedings privilege of Parliament":-
"The New Zealand Court of Appeal has explained that privilege in this way in its recent majority decision in Donna Awatere Huata v Prebble & Anor, judgement delivered on 16 July 2004:
‘There is a well established rule...that it is exclusively for the House itself to administer that part of statute law which relates to its internal proceedings. The courts will not exercise jurisdiction over legislation of that kind.’
This quotation, taken out of context, must be qualified by adding that, in a country with a written constitution, the courts always have jurisdiction to remedy breaches of that constitution."
If it were not for one impediment I would go ahead immediately to answer the questions, secure in the belief that the Court has the power and duty to answer them.
The impediment is the judgement of the Full Court of the Supreme Court of Nauru (Donne C.J and Dillon J) in Civil Action 13/1997, Harris & Ors v. Secretary for Justice & Ors. If I follow that decision which as a single judge I am most inclined to do, then I may not interfere. It is a grave thing for a single judge of the Court to fail to follow a previous decision of the same Court, the more so when it is a decision of two most eminent and experienced judges sitting as a full court. Ms. Walker suggested I could distinguish Harris’ Case as it was a reference under Article 54 and this is a reference under Article 55. Perhaps so but I am more inclined to another of her submissions that if I conclude the decision is wrong I should say it and why so as to correct the misunderstanding of the relationship between the Parliament and the Judiciary.
I have come to the conclusion that Harris v. Secretary for Justice was wrongly decided. In the course of giving reasons I shall be able to canvass several points requiring consideration on the present Reference.
Donne C.J set out the fact in Harris’ Case: -
"The facts upon which the action is founded arise from the meeting of Parliament of the 12th June 1997 to which the Plaintiffs, as Members, were summoned. For reasons, which are not here relevant, they and one other Member, in all 8, did not attend the sitting. Parliament consists of 18 Members including the Speaker. Eight members and the Speaker attended the sitting. One other Member, who had been granted leave of absence on the ground of illness, was also absent. The business of Parliament that day, according to the Plaintiffs, consisted of, a statement by the Speaker complaining about their actions, a resolution to refer the complaint to the Privileges Committee of Parliament and the introduction of and subsequent enactment of 18 Bills which on the 13th June 1997 were certified by the Speaker pursuant to Article 47 of the Constitution and in consequence thereof are now laws of the Republic...The defence admits the sitting of Parliament of which the Plaintiffs are Members but denies that there was no quorum. The main defence is the plea that the issue is not justiciable since to consider it would require the Court to inquire into the practice and procedure of Parliament which is, solely within the province of Parliament."
The Court refused to grant relief and dismissed the action.
Each learned judge wrote a judgement. I shall refer to them in turn.
First I consider the judgement of Donne C.J. With respect, it seems that the whole is informed by the learned Chief Justice’s conviction (as he puts it towards the end of his Reasons):-
"...it is the business of Parliament not of the Court to review any irregularity in the proceedings of its House. Parliament has the sovereign power to regulate its affairs."
With great respect, this is so extreme a proposition as to be in error. This conviction has led the learned Chief Justice into several other errors. The first concerns his conclusion that,
"The common law privilege on non-impeachment was thereby inherited as a privilege of Nauru’s Parliament – there is nothing in the Constitution with which it is inconsistent."
This conclusion despite Section 21 of the Parliamentary Immunities Act 1976 (which the learned Chief Justice had set out). It seems that he quite overlooks the exception at the end of the section:-
"...except any of such powers, privileges or immunities as are inconsistent with or repugnant to the Constitution or the express provisions of this Act."
On the view I have reached the exception in Section 21 is technically surplusage: Parliament is bound by the Constitution anyway. Yet the exception is an explicit acknowledgement by Parliament that it is bound by the Constitution.
Secondly the learned Chief Justice in considering a decision of the Court of Appeal of the Solomon Islands (Edward Huniehu v. Attorney General & the Speaker of the National Parliament of the Solomon Islands, delivered 24th April 1997) preferred and followed the dissenting view of Casey J that the Court should give no remedy.
Thirdly, the learned Chief Justice said:-
"...the sovereignty of Parliament is little affected by the constraints of Westminster model Constitutions and the approach by the Courts to applicability of the non-impeachment privilege enjoyed by the legislature is, in general, the same in those jurisdictions as in those of the common law. Nauru’s Constitution, as explained above, confers on its Parliament the power to declare its powers, privileges and immunities and to prescribe its procedures. It thus, in my view, abdicates its right to control the legislature to the extent of these privileges and immunities and only if it can be shown that to assert them would be inconsistent with the provisions of the Constitution, could a Court refuse to uphold them. The privilege of non-impeachment guarantees to the Parliament that its proceedings are sacrosanct and as such cannot be impeached. There is nothing in the Constitution of Nauru which fetters that privilege and, undoubtedly, the Court must uphold it."
This overlooks the fetter which Parliament has acknowledged in Section 21 of the Immunities Act.
Fourth, with respect to the learned Chief Justice he is in error over the quorum:-
"The question of quorum is a procedural matter; it is to be decided by the Speaker who is the master of the House. The correctness or otherwise of that decision can only be reviewed by an inquiry into what went on in the House and what was the basis of the Speaker’s decision to allow the proceedings to continue and to transact its business. Such an inquiry would involve the Court on what Barwick C.J in Cormack’s case (supra) call the "intra-mural deliberations of the House" which is unquestionable, being an involvement in which the Court has no jurisdiction to undertake."
I use the present situation to illustrate the error.
On 22nd March the Speaker did not adjourn the Parliament, merely suspended the sitting. Mr. Frederick Cain, Clerk of Parliament, in a letter dated March 25th to His Excellency the President:-
"Regretfully, I’m not able to provide the votes and proceedings for the sitting of 22nd March, 2008 as the Parliament is still sitting and has not been adjourned."
The result is that there is no official record of proceedings on that day: no record as to whether a quorum of members was present during the transaction of business or whether any member ever raised the question of a quorum.
At the hearing before me I admitted affidavits from nine Members of Parliament each of whom swore he was not present in Parliament that day. Two of the gentlemen were cross-examined during the hearing.
Mr. Nimes called two other Members (Mr. Rene Harris and Mr. Shadlog Bernicke) who swore they were present in Parliament that day. They did not count numbers but assumed a quorum was present. Finally Mr. Nimes called Mr. Cain who said the Speaker was in the Chair and eight other Members were present.
Beyond reasonable doubt only eight members and the Speaker were in Parliament when business was being transacted.
Article 45 – Quorum
"45. No business shall be transacted at a sitting of Parliament if the number of its members present, other than the person presiding at the sittings, is less than one-half of the total number of members of Parliament."
I know that besides the Speaker "less than one-half of the total number of members of Parliament" were present. How can I ignore that? I cannot. I must express an opinion. Article 45 is mandatory –
"No business shall be transacted..."
It follows that the business purported to be done at the sitting of Parliament when a quorum was not present is a nullity.
I turn now to the judgement of Dillon J, especially as it concerns the quorum:-
"What the Plaintiffs are here attempting is to bypass Parliament where the question of quorum must be dealt with by the Speaker...This Court cannot inquire into the procedure of the House which is solely within the control of the Speaker or his nominee. The Plaintiffs acknowledge and concede that limitation. If there was no quorum on 12 June 1997 as alleged and relied upon by the Plaintiffs, nevertheless the proceedings of Parliament on that day remain valid..."
Yet I cannot ignore what I know: there was no quorum. Article 45 requires that for the valid transaction of business there must be at least one half of the members present as well as the presiding officer. With unfeigned respect to the two learned judges who decided Harris’ Case I must regard the impediment avoided. I may answer the questions.
[I am fortified in my decision by noticing that in Constitutional Reference No. 1 of 2003 my immediate predecessor, Connell C.J, although he referred to Harris’ Case, nevertheless said:-
"...so far as the powers, privileges and immunities of Parliament and members are concerned, these are subject to such powers, privileges, or immunities as are inconsistent with or repugnant to the Constitution. In other words, where there are mandatory provisions within the Constitution it is open in any properly maintained suit or the Court to accept jurisdiction and make appropriate declarations or orders."
His Honour gave relief.]
There remains to be considered the question concerning the eligibility of persons for election as members of Parliament.
Article 30 – Qualification for membership of Parliament
"30. A person is qualified to be elected a member of Parliament if, and is not so qualified unless, he-
Article 36 – Determination on questions of membership of Parliament
"36. Any question that arises concerning the right of a person to be of or to remain a Member of Parliament shall be referred to and determined by the Supreme Court."
On 22nd March Parliament purported to pass this amendment to the Naoero Citizenship Act 2005:-
"7 (b) The powers, privileges and immunities of a Member of Parliament holding the citizenship of one or two countries other than Nauru shall be as determined by the Standing Orders of the Parliament of Nauru."
Even if it had been validly enacted (which it was not for the reasons I have given) it would be unconstitutional. There is no bar in the Constitution either to the election of a person as a Member of Parliament or to his (or her) sitting because of dual citizenship. It follows from the absence of that bar in the Constitution that Parliament may not enact one.
Likewise is invalid the new Standing Order which Parliament purported to make on 22nd March:-
"21 (b) No Member holding the citizenship of one or more country, other than Nauru, shall be permitted to sit in the Chamber, unless the Speaker is satisfied that such other citizenship(s) has been revoked or otherwise foregone."
Article 36 – Determination on questions of membership of Parliament
"36. Any question that arises concerning the right of a person to be of or to remain a Member of Parliament shall be referred to and determined by the Supreme Court."
It is for this Court alone, not for the Speaker or Parliament to determine "the powers, privileges and immunities" – a roundabout way of saying "membership" – of a Member of Parliament.
The Standing Order even if validly made, is repugnant to the Constitution and void.
There is one final matter to consider. It arises from paragraph 13 of the affidavit in support of the Constitutional Reference by the Hon. Marcus Stephen:-
"13. On March 24, 2008, I wrote a letter to the Speaker advising that Parliament meets on March 25, 2008. Now produced and shown to me at the time of making this affidavit and marked MS-4 is a true copy of the letter to the Speaker of Parliament. I have not received any response from the Speaker to my letter."
Article 40 – Sessions of Parliament
"40. (1). Each session of Parliament shall be held at such a place and shall begin at such time, not being later than twelve months after the end of the preceding session if Parliament has been prorogued, or twenty-one days after the last day on which a candidate at a general election is declared elected if Parliament has been dissolved, as the Speaker in accordance with the advice of the President appoints..."
This Article makes it clear that the Speaker appoints the place and date, not on his own initiative but only "in accordance with the advice of the President". He must have the advice first.
I may now answer the questions:-
THE HON. ROBIN MILLHOUSE QC.,
CHIEF JUSTICE
7th April 2008
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