Tari v Natapei [2001] VUCA 18; Civil Appeal Case 11 of 2001 (1 November 2001)

IN THE APPEAL COURT OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Appeal Case No. 11 of 2001

IN THE MATTER OF: ARTICLE 6 (1) AND (2) AND 53(1) AND (2) OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU (hereinafter referred to as “ the Constitution”)

AND IN THE MATTER OF: SECTION 218 AND 219 OF THE CRIMINAL PROCEDURE CODE ACT [CAP. 136], as amended (hereinafter referred to as “the Act”)

BETWEEN:

Hon. PAUL REN TARI,
Member of Parliament for Maewo Constituency
and Speaker of the Parliament of Vanuatu,
Hon. IRENE BONGNAIM,
Member of Parliament for Ambrym Constituency
and First Deputy Speaker of the Parliament of the Republic of Vanuatu and
Hon. HENRY IAUKOU,
Member of Parliament for Tanna Constituency
and Second Deputy Speaker of Parliament of the Republic of Vanuatu
Applicants

AND:

Hon. NIPAKE EDWARD NATAPEI, Hon. SILAS HAKWA,
Hon. REUBEN TITEK, Hon. RIALUTH SERGE VOHOR,
Hon. JOE BORMAL CARLO, Hon. JACQUES SESE,
Hon. CLEMENT LEO, Hon. WILLIE POSEN,
Hon. DONALD K. MASIKEVANUA, Hon. HENRI TAGA,
Hon. SELA MOLISA, Hon. JOSIAS MOLI,
Hon. JOE NATUMAN, Hon. JEAN ALLAIN MAHE,
Hon. ALLAN NAFUKI, Hon. KORA MAKI,
Hon. WILSON RAY ARU, Hon. JIMMY IMBERT,
Hon. SAM DAN AVOCK, Hon. JIMMY NICKLAM,
Hon. PHILIP I. PASVU, Hon. JOHN MORSEN WILLIE,
Hon. WILLIE O. VARASMAITE, Hon. DANIEL A. BANGTOR,
Hon. GEORGE WELLS, Hon. RAKORM FOSTER,
Hon. AMOS TITONGOA care of Port-Vila, Efate Republic of Vanuatu
Respondents

Coram: Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak

Counsel: Mr. Kalkot Mataskelekele for the Appellants
Mr. Silas Hakwa for the Respondents

Date of Hearing: 29th October 2001.
Date of Decision: 1 November 2001

JUDGMENT

This is an appeal against a decision made by Chief Justice Lunabek at 11.30 p.m. on 12^th May 2001 in the Supreme Court sitting at Port Vila. A hearing had taken place on the 8^th, 9^th 10^th and 11^th of May 2001. The Orders and Declarations needed to be given as a matter of extreme urgency.

There is a sixty one (61) pages document dated 23^rd October 2001 which contains the reasons for the orders made.

The orders made were follows:-

1. Leave to apply for the Writs of Mandamus and Certiorari is granted.

2. A Declaration that the decision and/or ruling by the Respondent made on 7^th May 2001 to dismiss and exclude the Petitioners from attending and taking part in the proceedings of the First Extra Ordinary Session is invalid, void and of no effect.

3. A Declaration that Parliament is still meeting in its First Extra Ordinary Session in 2001 and that the decision made by the Respondent on 7 May 2001 to close Parliament’s First Extra Ordinary Session in 2001 is invalid, void and of no effect.

4. An Order quashing the Respondent’s ruling to dismiss and exclude the Petitioners from taking part in the proceedings of the First Extra Ordinary Session of Parliament.

5. An Order directing the Respondent to re-convene Parliament and place before the Parliament all matters required to be transacted by Parliament in its First Extra Ordinary Session of 2001 on Monday 14 May 2001 at 08.30 am so that Parliament can debate and deal with the same in accordance with the Law and Standing Orders.

6. A Declaration that the purported Motion No. of 2001 seeking to suspended Honourable Nipake Edward Natapei, Honourable Rialuth Serge Vohor and Honourable Henri Taga amounts to a breach of the constitutional rights of those Petitioners and is therefore invalid, void and of no effect.

7. A Declaration that the purported calling or Summons for the Second Extra Ordinary Session of 2001 made by the First Respondent is invalid, void and of no effect.

8. A Declaration that the purported calling or Summons for the Second Extra Ordinary Session of 2001 made by the First Respondent is invalid, void and of no effect.

9. Costs of and incidental to this petition are awarded to the Petitioners and to be paid by the Respondents. Costs be taxed failing agreement.

The details of the factual circumstances relating to those issues are comprehensively set out in the judgment under appeal.

There is in truth little in dispute in the competing versions as to what factually occurred. The case is about a narrow but important point with regard to the operation of the Government of this Republic and the rule of law.

It is essential to begin by restating some fundamental premises, because it is within their context that the issues have to be considered and the necessary decisions made.

The Republic of Vanuatu is a Constitutional Parliamentary Democracy. The Constitution is the foundation document. As clause 2 of it notes, the Constitution is the Supreme law of the Republic of Vanuatu.

In Chapter 4 the Constitution provides for a Parliament. In Clauses 16, 17, 21, 22 and 27 in particular, are enumerated the important place of Parliament, and the rights and immunities which are attached to it and its members.

Where there is room for debate, or it is possible that ambiguity exists, assistance may be gained from a consideration of the way in which Parliaments in other places have operated in the past or operate now. But any of that is in all circumstances and at all times subject to the clear and unambiguous words of the Constitution which is the Supreme Law.

Chapter 4 of the Constitution is entitled Justice. It provides for the creation of a Judiciary and the various Courts in which justice is to be administered. Particularly, for the purposes of this appeal, Article 53(1)& 2 provide:-

53.(1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.

The Courts in upholding the law and enforcing the provisions of the Constitution, will necessarily have regard to the entire constitutional frame work and to the manner in which similar organs or Governments operate in other parts of the world. But it is only when the Constitution itself is not clear about rights and responsibilities in this independent State, that precedents from other jurisdictions will be of assistance.

Clause 21(5) of the Constitution confirms that Parliament can make its own rules of procedure. These rules (which are the Standing Orders of Parliament) provide the mechanism for regulating the conduct of business within Parliament itself.

At its heart, this case is about the interface between the Constitution, the Rights and Immunities of Parliament and its members, and the Standing Orders of Parliament.

In his reasons for judgement the learned Chief Justice summarised the position as he saw it at page 42.

“It is to be remembered that Standing Orders of Parliament are not laws of the Republic of Vanuatu. Standing Orders of Parliament they are only internal rules of Parliament.

When the Speaker rules on procedural matters, the Court has no jurisdiction to enquire further but if that ruling interferes with constitutional right of the person involved, the Supreme Court does have the power/right to enforces that right [Article 6 (1) and 53 (1) of the Constitution]. Further, in order to investigate and enforce effectively the contravention/breach of a constitutional right, the Supreme Court has the right to examine the proceedings in Parliament and this extends to the actual decision made by the Speaker whether or not the ruling is correct. If it is, there will be no contravention of the members’ rights. If the ruling is wrong, the Supreme Court has the power/right to make orders, issue writs and give directions, including the payment of compensation, as it considers appropriate to enforce that right which is guaranteed and protected under the Constitution. Furthermore, the Supreme Court has jurisdiction to determine the matter and to make order as it considers appropriate to enforce the contravention/breach of the provisions of the Constitution [Articles 53 (2)]”.

The present Appellants contend that this frame work, within which the Chief Justice reached the answers he was required to give to a number of specific questions, was wrong. They therefore appeal against the making of the relevant declarations and orders and seek to have them discharged or varied.

We are of the view that the Learned Chief Justice was correct in his assessment of the crux matter. His decision was consistent with the decision of this Court in AG and Natapei –v- Willie Jimmy and Barak Sope and Others Appeal Case No. 7 of 1996.

In the amended Petition which has been filed on 9^th May 2001 the present Respondents alleged that the First Appellant (the then Speaker of Parliament) had acted in breach of the Constitution-

(1) in purporting to restrict and/or limit the extent to which Members of Parliament lawfully elected to Parliament may lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu.

(2) in purporting to act in contravention of the provisions of paragraphs (d), (g) and (k) of sub-Article (1) of Article 5 of the Constitution;

(3) in failing to respect and have due regard to the provision of Article 7 of the Constitution;

(4) in purporting to act in contravention of the provision of Article 17 of the Constitution;

(5) in purporting to act, in contravention of the provision of Article 22 (2) of the Constitution;

(6) in purporting to act in contravention of the provisions of Article 27 (1) of the Constitution.

The Respondent’s further complained that the Second and Third Appellants (who were the First and Second Deputy Speakers of Parliament at that time) had acted in breach of the Constitution.

(1) in purporting to restrict and/ or limit the extent to which Members of Parliament lawfully elected to Parliament may lawfully and legitimately exercise their lawful duties and responsibilities as duly elected representatives of the people of the Republic of Vanuatu in accordance with the laws and Constitution of the Republic of Vanuatu;

(2) in purporting to act in contravention of the provisions of paragraphs (d), (g) and (k) of sub-Article (1) of Article 5 of the Constitution;

(3) in failing to respect and have due regard to the provision of Article 7 of the Constitution;

(4) in purporting to act in contravention of the provision of Article 17 of the Constitution;

(5) in purporting to act in contravention of the provisions of Article 22 (2) of the Constitution;

(6) in purporting to act in contravention of the provisions of Article 27 (1) of the Constitution.

As the Chief Justice summarised the position, the substance of the case of the present Appellants before him was:

1. In accordance with the principle of separation of powers of the Court should not interfere with the business of and running of the Parliament.

2. The Constitution of the Republic of Vanuatu provides for separation of powers between the Legislature, the Executive and the Judiciary for example:

(a) Article 41 provides that Parliament is sovereign;

(b) Article 16 (1) provides that Parliament may make laws for the peace order and good Government of Vanuatu;

(c) Article 41 provides that Parliament shall elect the Prime Minister, the head of the Executive;

(d) Article 47 (1) provides that the function of the Judiciary is to resolve proceedings according to law;

(e) Article 27 (1) provides that no Members of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given of oaths cast by him in Parliament in the exercise of his office;

(f) Article 27 (2) provides that no Member may be arrested or prosecuted for any offence during a session of Parliament except with the authorisation of the Parliament in exceptional circumstances.

On 27^th April 2001 the Speaker summonsed the Parliament to meet in a First Extraordinary Ordinary Session to commence on Thursday 3^rd May 2001 at 8.30 AM.

When the present Respondents and 21 other Members of Parliament attended that day the Speaker advised that the sitting could not proceed because there was no quorum. The Speaker then adjourned the Parliament to Monday 7^th May 2001 at 8.30 AM.

When Parliament met on the 7^th of May 2001 the Speaker declared there was a quorum. There were 51 members attending. After prayer and the signing of the roll of members of Parliament by two new MP’s the Speaker read from a prepared document in Bislama which can be generally interpreted as follows:-

“In line with Order 40 (1) I called the attention of the Parliament to the conduct of some members of this honourable house. At first ordinary session of parliament for 2001, some members of parliament used their Constitutional right to disturb the independence and the separation of powers of this honourable house. They allowed the judiciary to direct this Parliament through orders of court. Through the action of some members, the Supreme Court threatened me as to imprisonment. They caused disrespect to Article 27 of the Constitution which protects the privileges and immunity of this Honourable house and its members. Similarly in this extraordinary session, the same members have caused the executive power to rule and again damaged this honourable house.

It is my view as speaker of Parliament that every member has constitutional and other rights as provided under the laws of Vanuatu. I too as speaker have those same rights and powers under this honourable house. Under Article 21 (5) of the Constitution of Vanuatu which says: “ Parliament shall make its own rules of procedures” I wish to remind this honourable house that its won rules of procedures” I wish to remind this honourable house that its rules and procedures are contained in the standing orders of parliament is wish to remind every member of this honourable house that standing order 55 of the standing orders of parliament become law of this country on 1^st January 1982. As speaker I wish to say that anyone who does not comply with standing orders is breaching the law of Parliament and laws of this country. Article 22 (2) of the Constitution give powers to the speaker of Parliament to maintain order in this honourable house. Some members of this honourable house have been guilty of disorderly conduct under standing order 40 of the standing order of this Parliament. Some refuse to withdraw objectional words, they used in this Honourable house. Some of the MP continues to disregard the authority of the speaker. My interpretation of the Constitution and the standing orders, as laws, I honestly believe that these Honourable members have breached the “mother law of Parliament of the Republic of Vanuatu. Therefore I rule that: Hon. Allen Nafuki member of Parliament for South Outer Islands and Hon. Josias Moli, MP for Malo are guilty of disorderly conduct to the present Parliament I also rule that Hon. Silas Hakwa, MP for Ambae, Hon Edward Natapei, MP for Port Vila, Hon Serve Vohor, PM for Santo and Hon. Henri Taga, MP for Port Vila are guilty under section 40 (2) (c) (d) and (e) of the standing orders I believe that the conduct of these Hon. Members during the first ordinary session of Parliament constitute breaches of the standing orders of Parliament. I now also rule that under standing order 40 (e) those Hon. Members immediately withdraw themselves form the Parliament and the presence of this Parliament for the remainder of this sittings and meetings. Please members do move out of this house now, standing orders (10) (1) gives me the power to use the Police to remove you from this Hon. House if you refuse to comply with my ruling. I wish to warn every members of Parliament that standing order 45 provides you the way to challenge my decision. Every Hon. Members Parliament, who does not comply with order 45, will be treated similarly.”

The Speaker then suspended six members of Parliament namely Prime Minister the Honourable Edward Natapei, the Honourable Serge Vohor Deputy Prime Minister, the Honourable Silas Hakwa, the Honourable Henry Taga, the Honourable Josias Moli, the Honourable Allan Nafuki.

After the suspension of these six members, 20 other members of Parliament who supported the Government left the chamber leaving only the Minister of CRP, the Honourable Willie Olly Varasmaite to observe any proceedings.

The issue of a quorum was then raised. The Speaker adjourned Parliament for five minutes. After a short adjournment Parliament reconvened and he said in Bislama comments to this effect:-

“Seeing that we not reach the quorum after the 5 minutes suspension, we have no other option, I wish to declare that the First Extra Ordinary Session is now closed. The Speaker will be making another call for the Second Ordinary Session, and that will be tomorrow. Hopefully every member will receive notice of the second Ordinary session as of tomorrow.”

The Speaker then proceeded to close the First Extraordinary Session of Parliament for 2001.

That same day the Speaker summonsed Parliament to meet in its 2001 Second Extraordinary Session commencing on Tuesday 15^th May 2001 at 8.30 AM.

Meantime the present Respondents had filed a Constitutional Petition in the Supreme Court challenging the action which had occurred.

In respect of the proposed Second Extraordinary Session there were Motions prepared which would have had the effect of depriving various of the Respondents of rights. In as much as is relevant they were:-

“WHEREAS:

1. The Speaker in accordance with Standing Orders 40 (2) decided to remove the Hon. Edward Natapei, Hon. Serge Vohor, Hon. Silas Hakwa, Hon. Henri Taga, Hon. Allan Nafuki and Hon. Josias Moli during the First Extraordinary Session of Parliament from this honourable house.

2. The Honourable Speaker had given his reasons for removing the said members of Parliament from this honourable house for breaches of the Constitution and breaches of the Standing Orders.

3. The Honourable Speaker was in accordance with Article 22 (2) of the Constitution taken the correct action in removing the said members for their breaches of Article 27 of the Constitution and Standing Orders 40 (2) (b) (c) (d) and (e).

4. This honourable house is also in agreement with the Speaker’s ruling and endorses his reasons that the said members be breaching Article 27 of the Constitution and Standing Orders 40 (2) (b) (c) (d) and (e) have brought disrespect to this honourable house.

5. Article 27 (1) of the Constitution clearly states that NO member of Parliament may be arrested, detained, prosecuted or proceeded against in respect of opinions given or votes cast by him in Parliament in the exercise of his office. The Constitution further stated that no member may, during a session of Parliament or of one of its committees, be arrested or prosecuted for any offence, except with the authorisation of Parliament in exceptional circumstances.

6. Twenty seven members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor and Hon. Henri Taga proceeded and prosecuted the Honourable Speaker of Parliament during the First Ordinary Session of Parliament of 2001.

7. Twenty seven members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor and Hon. Henri Taga obtained Court Orders from the Supreme Court threatening the arrest of the Speaker.

8. Twenty seven members of Parliament which included the Hon. Edward Natapei, Hon. Silas Hakwa, Hon. Serge Vohor and Hon. Henri Taga had blatantly refused to adhere to Standing Orders 40 (2) (b) (c) (d) and (e) thus bringing the respect and the integrity of this honourable house into question and total disregard for the authority of the Speaker.

9. The Mover and Seconder of the Motion of No Confidence in the former Prime Minister Hon. Barak T. Sope Maautamate being the Hon. Edward Natapei and Hon. Silas Hakwa, refused to amend or withdraw the contents of the motion, when asked by the Honourable Speaker which is a blatantly disregard of Standing Orders 34 and 35.

10. By prosecuting the Honourable Speaker, the twenty-seven (27) members of Parliament had breached Standing Orders 15 (1) and 16 (1).

The Supreme Court orders obtained from these members made a mockery of the Standing Orders and the Parliament of the Republic of Vanuatu, by forcing Parliament to meet on the night of the good Friday of year 2001.

NOW THEREFORE PARLIAMENT HEREBY RESOLVES THAT:

In accordance with Standing Orders 40 (4) that the Hon. Edward Natapei, Hon. Serge Vohor, Hon. Silas Hakwa, Hon Henri Taga and the following members of Parliament, Hon. Ruben Titek, Hon. Joe Bomal Calo, Hon. Jacques Sese, Hon. Clement Leo, Hon. Willie Posen, Hon. Donald K. Masikevanua, Hon. Sela Molissa, Hon. Josias Moli, Hon. Joe Natuman, Hon. Jean Allan Mahe, Hon. Allan Nafuki, Hon. Kora Maki, Hon. Wilson Ray Aru, Hon. Jimmy Imbert, Hon. Dan Avock, Hon. Jimmy Niklam, Hon. Philip Pasvu, Hon. John Morsen Willie, Hon. Willie O. Varasmaite, Hon. Daniel Bangtor, Hon. George Wells, Hon. Rakorm Foster and Hon. Amos Titongoa be suspended from attending three (3) Extraordinary Sessions of Parliament and two (2) Ordinary Sessions of Parliament.”

A further proposed motion for the Second Extraordinary Session provided.

1. Certain members of this honourable house have bestowed upon themselves the responsibility for maintaining order in Parliament.

2. The Prime Minister, Deputy Prime Minister and the Council of Ministers have bestowed upon themselves the responsibility for maintaining order in Parliament.

3. The majority of members of Parliament have bestowed upon themselves the responsibility of maintaining order in Parliament by moving a written motion to remove the Honourable Speaker of Parliament and his deputies from their responsibilities,

4. The Prime Minister and his Councils of Ministers have called an Extraordinary Session of Parliament to punish the Honourable Speaker by removing him from the service of Parliament for seven (7) months.

5. Article 22 (2) of the Constitution clearly states that the speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.

6. It is clear that the Constitution does not allow the Prime Minister, the Council of Ministers, the majority of members, the Leader of the Opposition nor each and any single member of Parliament the responsibility of maintaining order in Parliament.

7. That Standing Orders of Parliament does not allow any members of Parliament to maintain order in Parliament.

8. That certain members of Parliament have bestowed upon themselves the role of being Policemen, Judge and Jury and Executioners of this Honourable house.

NOW THEREFORE PARLIAMENT HEREBY RESOLVES THAT –

1. Any member of Parliament who pretends or has bestowed upon himself to be responsible for maintaining order in Parliament, has done so in breach of Article 22 (2) of the Constitution of the Republic of Vanuatu.

2. That any Prime Minister or Council of Ministers that pretends or has unilaterally bestowed upon themselves the responsibility for maintaining order in Parliament have done so in breach of Article 22 (2) of the Constitution of the Republic of Vanuatu.

3. That any members of Parliament who have bestowed upon themselves to be responsible for maintaining order in Parliament have done so in breach of Article 22 (2) of the Constitution of the Republic of Vanuatu.

4. That all members of Parliament who have bestowed upon themselves the power to maintain order in Parliament, have done so in contravention of Standing Orders 40 (2) (c) (d) and (e) and Standing Orders 45.

5. That any members of Parliament who have breached Article 22 (2) of the Constitution and Standing Orders 40 (2) (c) (d) and (e) and Standing Orders 45 are to be suspended from Parliament in accordance with Standing Orders 40 (4) forthwith.

6. That the Honourable Edward Natapei Prime Minister (MP), Honourable Serge Vohor Deputy Prime Minister (MP), the Honourable Henri Taga (MP) be suspended from the service of Parliament in accordance with Standing Orders 40 (4). The duration of their suspension shall be for two Ordinary Sessions and three Extraordinary Sessions of Parliament.”

As we noted at the beginning the starting point in determining the dispute in this Court, is the Constitution and the rights which are provided therein.

Standing Orders of Parliament, as the Constitution notes, are the rules of procedure for Parliament. Within Parliament they are supreme and must be strictly adhered to by all members of Parliament. Nothing in the Standing Orders of Parliament can vary, abdicate or interfere with the rights which are provided under the Constitution.

Clause 27 of the Constitution provides an immunity for members of Parliament in respect of opinions given or vote cast by them in Parliament in the exercise of their office. But that does not in anyway lessen the duties and responsibilities placed upon them (as on every other citizen) under the Constitution.

In as much as the Standing Orders of Parliament have an effect and influence upon the Constitutional rights of all members of Parliament, in accordance with clause 6 of the Constitution any person aggrieved, is at liberty to apply to the Supreme Court. Clause 6 provides:-

6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensations, as it considers appropriate to enforce the right.

This important provision is repeated in Clause 53 as set out above. The Constitution does not provide that what happens in Parliament is to be treated differently than any other breaches of lawful rights guaranteed by the Constitution.

It necessarily follows therefore that the Supreme Court is the body which under the Constitution is charged with determining whether rights and have been infringed or responsibilities disregarded.

To do that is not an interference with the sovereignty of Parliament or with the important immunity which is provided to members of Parliament. It is a necessary consequence of ensuring that all Constitutional rights are accorded the meaning and force which the Constitution itself anticipated.

The appeal was first advanced on the basis that what is done in Parliament could be never be looked at by the Court. That argument is in error. As the Chief Justice correctly demonstrated, the supremacy of the Constitution in this Republic necessitates that in the extreme situation where there is an undisputed breach of a legal responsibility, including the misinterpretation of the clear words of the Standing Order of Parliament leading to a failure to recognise fundamental rights, the Court must be available to provide the remedy which the Constitution promises.

In the statement read by the Speaker in Parliament on the 7^th May he contended that he was acting under powers provided by Standing Orders 40.
That provides:-

“Order in Parliament

40 (1) The Speaker, after having called the attention of Parliament to the conduct of a Member who persists in irrelevance or tedious repetition either in his own arguments or of the arguments used by other Members in debate, may direct him to discontinue his speech.

(2) If any Member:

(a) persistently and wilfully obstructs the business of Parliament;

(b) us guilty of disorderly conduct;

(c) uses objectionable words which he refuses to withdraw;

(d) persistently or wilfully refuses to conform to any Standing Order;

(e) persistently or wilfully disregards the authority of the Speaker;

the speaker shall order the Member to withdraw immediately from Parliament and its precincts during the remainder of that sitting.

(3) In the case of grave disorder arising in the Parliament, the Speaker may adjourn Parliament without question put or suspend any sitting for a time determined by him.

(4) Parliament may, on a motion moved by a Member, suspend any Member form the service of Parliament for such period indicated in the motion. A Member who is suspended shall not be admitted to Parliament or its precincts during the period of suspension.

(5) Any motion presented in accordance with paragraph (4) shall be in writing and seconded and a notice of 2 clear days shall be given thereof to the Speaker.”

It is to be noted that this clause occurs in Part VII which is headed “ Debates in Parliament”.

It is undisputed that the Speaker purported to remove the six members of Parliament for the session for behaviour which he alleged they had committed outside of Parliament. We have no doubt that Standing Order 40 covers and is directed only to conduct within the chamber in the course of a sitting in Parliament. This Standing Order could never provide a basis for what the Speaker purported to do.

Through his mis-interpretation of the power vested in him under the Standing Orders, the Speaker of Parliament denied the six persons in question their constitutional rights. They were therefore entitled in terms of the Constitution to apply to the Supreme Court for relief.

We do no overlook the provision Standing Order 45, but as a result of the subsequent action of the Speaker there was no way in which this remedy could be used by the expelled members once Parliament had been closed.

The second factor in contention relates to what Standing Order 38 means. It provides:-

Quorum

If at any time the attention of the Speaker is directed to the fact that a quorum is not present, he shall order the bells to be rung and if at the end of (5) five minutes, a quorum is not present, he shall adjourn Parliament without question put; but if it be shown at any time that a quorum is present, it shall not be in order to draw the attention of the Speaker to the absence of quorum until after the end of one hour from that time.

There is no question on the evidence that when the absence of a quorum was discovered the Speaker closed the First Extra Ordinary Session of Parliament. He did not have the power to do so under Standing Order 38. He had only a power to adjourn. That adjournment should have been to the next normal sitting date which in accordance with Standing Order 15 would have been the next day.

We agree with the Chief Justice that the Speaker mis-understood the power he had under Standing Order 38. In that error there was a further breach of the constitutional rights of the current respondents in respect of which they were entitled to file a constitutional petition in the Supreme Court.

In all the circumstances, the only remedy which would right the wrong was for the Court to declare that the Parliament was still in session in its First Extraordinary Session. Again this is not interfering with Parliamentary supremacy but upholding the Constitution and requiring that the Standing Orders are properly applied.

The next issue was whether the Court could intervene with regard to the calling of the Second Extraordinary Session of Parliament. Neither the Constitution nor the Standing Orders of Parliament specifically deal with the possibility of calling a further session of Parliament while one is still in session. It appears to us that as a matter of sensible management and logic that there cannot be two sessions simultaneously. When Parliament has been called into an Extraordinary Session it must deal with the business of that session and then it will be closed. A further session could arise thereafter if the necessary formalities are fulfilled. Because of the breach which was established in the unlawful closing of the first session it became a matter of necessity that the second session not proceed at that point.

Additionally the motions which were proposed to be debated at the Second Extraordinary Session were contrary to Standing Orders 34(2) and 35(3). These Orders preclude motions which refer to a matter on which a judicial decision is pending or reflect upon a decision of a Court of law.

The only other issue which is raised relates to the question of whether there was some infringement of the rights of the Speaker (or other members of Parliament) contrary to Article 27 of the Constitution in the Court’s intervention to uphold the Constitution rights of those who were aggrieved.

There is tension between Article 53 of the Constitution and Article 27 where a breach is alleged to have happened in Parliament. In our judgment the immunity which is provided under Article 27 does not mean that a person can do what they like in Parliament without anyone being able to have recourse to the Court for a breach of their constitutional rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all times for all citizens. The Standing Orders of Parliament are the rules which apply within Parliament. Like all other legal rights and responsibilities they must be at adhered to.

It would make a mockery of the Standing Orders if Article 27 was interpreted and used as a device to read down the rights guaranteed by Article 5 of the Constitution so as to deny the constitutional rights of others which are preserved to them under Articles 6 and 53 of the Constitution.

Accordingly we are satisfied that in the very unusual circumstances which had developed, notwithstanding the reluctance which the Court will always have about any interference with the sovereignty of the Parliament when it has applied all proper legal rules and procedures, and even recognising the essential supremacy of Parliament within the framework of rights and duties in the Constitution, there was no option but for the Court to intervene to ensure that the rule of law was adhered to and maintained.

The appeal against the orders made in the Supreme Court is accordingly dismissed. Many of the orders have now being overtaken by the passage of time. We confirm however

(1) That the removal of the six (6) MP’s from Parliament on the 7^th May 2001 was without legal authority and a breach of Constitutional rights which could only be remedied by setting aside their removal from the Parliament.

(2) The closing of the First Extraordinary Session of the Parliament on 7 May 2001 was outside the power and jurisdiction of the Speaker and therefore unconstitutional. The only effective remedy was to require the Parliament to continue and complete the sitting in according with the applicable law.

(3) Cancelling a Second Extraordinary Session of Parliament which would have met simultaneously with the uncompleted First Extraordinary Session was a necessary consequence to ensure the avoidance of chaos. In any event the motions proposed for debate at the Second Extraordinary Session were precluded by the Standing Orders .

(4) These interventions by the Court are in accordance with Article 6 and 53 of the Constitution and are necessary to maintain the rights guaranteed under Article 5. They cannot be precluded by Article 27 because to do so would ignore the Constitution and its underlying absolute commitment to the Rule of Law and its Supremacy in this Republic.

It is now of vital importance that everybody involved in this matter put this litigation behind them and turn their total attention to the future of the Republic and their mutual responsibility towards all citizens.

Dated at Port Vila, this 1^st November 2001.

Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak