In re the Constitution, Kalpokas v Hakwa [2002] VUCA 12; CA 06-02 (13 March 2002)

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

CIVIL APPEAL CASE No.06 of 2002

IN THE MATTER OF: ARTICLES 28(1) AND 53(1) AND IN (2) OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU
(thereinafter referred to a “the Constitution”)

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

BETWEEN:

HON. DONALD KALPOKAS MASIKEVANUA,
Member of Parliament for Efate Constituency and Speaker of Parliament of the Republic of Vanuatu
Appellant

AND:

HON. SILAS HAKWA,
Member of Parliament for Ambae Constituency, C/- P.O.Box 954, Port-Vila, Efate, Republic of Vanuatu
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Mr. Justice Reggett Marum

Counsel: Messrs George Nakou and Hamlinson Bulu for the Appellant
Mr. Silas Hakwa, the Respondent on his own behalf

Hearing date: 11 & 12 March 2002
Judgement date: 13 March 2002

JUDGMENT

This is an appeal against the judgment made by Coventry J on 6 March 2002 in the Supreme Court sitting at Port-Vila. On 14 February 2002 the Hon. Speaker of Parliament, the Appellant issued a Summons for the Parliament to meet in its 2002 First Extraordinary Session commencing on Thursday 7 March 2002 at 8.30AM at Port-Vila. By a Notice dated 18 February 2002, in accordance with the Summons of the Hon. Speaker of 14 February 2002, the Clerk of Parliament had summoned Parliament to meet on 7 March 2002 at 8.30AM.

On 4 March 2002, the Respondent then Petitioner filed a Constitutional Petition seeking various orders and declaratory relief. The critical declaration was a declaration that the term of the current Parliament expires and/or shall expire at 12.00 midnight on Wednesday 6 March 2002.

It is common ground that the polling day for the election of this Parliament was fixed on 6 March 1998 by the then President of the Republic of Vanuatu, Jean Marie Leye Lenalgau Manatawai. The results of the general election in 1998 were gazetted on 16 March 1998. By Notice dated 18 March 1998, the first sitting of this Parliament was set for 30 March 1998.

The question for the determination of the trial Judge is the interpretation of Article 28(1) of the Constitution, as conceded by both parties.

In the first instance of the Supreme Court, the Respondent (then Petitioner) contended that this Parliament was elected on 6 March 1998. Therefore, under Article 28(1) of the Constitution its life expires on 6 March 2002 at midnight. The Respondent/Petitioner contended further that the date of its election can have no other meaning than the date the election was held.

The Appellant (then Respondent) opposed the Petition. He argued that “election” is a process. It begins with a polling day and concludes when the names of the successful candidates are announced. This means that the life of the current Parliament shall not expire until midnight on 16 March 2002.

On 6 March 2002, at 4.30PM the learned trial Judge delivered his judgment. He found that the date of the election of this current Parliament was 6 March 1998 on the interpretation of the Article 28(1) of the Constitution. He, then, formally declared that the life of this current Parliament expired at midnight from 6-7 March 2002.

On 10 March 2002, a Notice of Appeal with supporting grounds were filed.

On 11 March 2002, the matter came on before the Court of Appeal urgently constituted by two (2) Judges of the Supreme Court in accordance with Article 50 of the Constitution. The Appellant urges the Court of Appeal to hear the appeal as a matter of urgency. Having heard both counsels, we were of the view that there is urgency to deal with the appeal because (a) the matter raises urgent and important constitutional and parliamentary issues and (b) the time is of essence and if the appeal is not heard as a matter of urgency, then, the Parliament would be denied its right to sit as planned. The appeal was listed for hearing on 12 March 2002 at 1.30PM.

The appeal proceeds on two grounds:

1. That the judgment was against the weight of evidence.
2. That the trial Judge erred in facts and law.
   

The Appellant is asking this Court to reconsider when is the starting point of 4 years of Parliament. In essence the Appellant says that the 4 years term of the life of the current Parliament starts on the 16 March 1998 when the elected members of the current Parliament were formerly declared by the Electoral Commission following the gazetting of their names.

In the alternative, the Appellant says that Parliament, as an Institution, was formally called on 30 March 1998. Four (4) years of this Parliament starts on 30 March 1998. This means the date of the First Parliament Session after the General Election on 6 March 1998. Its four (4) years term ends on 30 March 2002.

The particulars of the grounds of the appeal are summarised as follows:

(a) That the term of the current Parliament expires on 16 March 2002;
(b) That in the alternative, the term of the current Parliament ends on 30 March 2002;
(c) That the trial Judge erred in law in finding that the (words) “election” in Article 28(1) of the Constitution was to have the same meaning as “General Elections”;
(d) That the trial Judge erred in law in not finding that the expression in Article 28(1) of the Constitution “the date of its election” was to be interpreted as meaning the date upon which the candidate for Parliament were declared elected (16 March 1998) and/or at the first sitting of the current Parliament being 30 March 1998;
(e) That the trial Judge erred in law in not finding that the words “its election” in Article 28(1) of the Constitution did not related to the declaration of the poll;
(f) That the trial Judge erred in law “in not giving proper effect to the provision of the Representation of the People Act [CAP.146] which Act was given special constitutional status by reference to Article 93(1) of the Constitution. The provision of the Representation of the People Act differs from most other legislation as it is expressly authorised and contemplated by the Constitution.
(g) That the trial Judge erred in law in finding that there is certainty as for when Parliament’s 4 years term commences when calculated against the date of holding of the General Elections;
(h) That the Appellant applies for costs in the trial and this appeal.

Article 28 of the Constitution says:

“28(1) Parliament, unless sooner dissolved under paragraph (2) or (3), shall continue for 4 years from the date of its election.

(2) Parliament may at any time decide, by resolution supported by the votes of an absolute majority of the members at a special sitting when at least three-fourths of the members are present, to dissolve Parliament. At least 1 week’s notice of such a motion shall be given to the Speaker before the debate and the vote on it.

(3) The President of the Republic may, on the advice of the Council of Ministers, dissolves Parliament.

(4) General elections shall be held not earlier than 30 days and not later than 60 days after any dissolution.

(5) There shall be no dissolution of Parliament within 12 months of the general elections following a dissolution under subarticle (2) and (3).”

The Appellant by counsels submitted that Article 28(1) is ambiguous and unclear. It was further contended for the Appellant that even if the Court had to read Article 28(1) together with other Articles of the Constitution, the Court will still not obtain any assistance at all and since there is no local case authority on the question of when 4 years term starts, the Court should depart to other jurisdictions. The Appellant urged this Court to adopt the purposive approach in construing Article 28(1). The Appellant relied on the following cases:

(1) Minister of Foreign Affair -v- Fisher [1979] UKPC 21; (1979) 3 ALL ER 21; (1980) AC 319 at 329.
(2) Re: President’s Reference in the Constitution of Vanuatu and the Broadcasting and Television Bill of 1992 and the Land Acquisition Bill 1992.
(3) President –v- Attorney General (1993) LRC 141.
(4) Jean-Paul Virelala & Anors -v- the Ombudsman of Vanuatu - Supreme Court Case No.04 of 1997.
(5) Re: Samson & Others -v- The Attorney General – Supreme Court Civil Case Nol01 of 1997.
(6) His Excellency Frederick K. Timakata and the Government of the Republic of Vanuatu - Supreme Court of the Republic of Vanuatu – Civil Case No.05 of 1994.

The Appellant also cited the following constitutional provisions of the countries of the region:

(1) Article 41 sub-article 4 of Nauru Constitution.
(2) Article 63 sub-article (4) of Western Samoa Constitution.
(3) Article 73 sub-article 13 of Solomon Island Constitution.
(4) Article 118 sub-article (1) of Tuvalu Constitution.

The cases and the regional constitutional provisions cited before us, will be discussed only if necessary for deciding the present case.

The appellant submitted that the judgment of the trial Judge was against the weight of evidence. We are of the view that this ground has no factual basis. There was no factual dispute before the trial Judge. This argument is therefore dismissed.

It is argued and submitted for the Appellant that the trial Judge erred in law in not giving proper effect to the provision of the Representation of the People’s Act [CAP.146] as it was given special constitutional status by reference to Article 93(1) of the Constitution.

Article 93 of the Constitution says:

“After the general elections next following the Exchange of Notes providing for entry into force of this Article, the Representative Assembly shall set up a Committee with equal representation of all political groups to make recommendations on an electoral system based on Article 17(1).

The recommendations of the Committee shall be included in a law enacted by Parliament by a two-thirds majority of its members at a special sitting of Parliament when at least three-fourths of the members are present. If there is no such quorum at the first sitting, Parliament may meet and make a decision by the same majority a week later even if only two-thirds of the members are present.”

We are of the view that the above submission must be rejected for the following reasons. Article 93 was raised for the first time before this Court. The Appellant did not direct the attention of the trial Judge to Article 93 of the Constitution and its constitutional status as contended. Before this Court, as a matter of construction of a constitutional provision, we allow the appellant’s counsels to make submissions, despite the objections raised by the Respondent. By perusing the language of Article 93, the burden is on the Appellant to show the following factual matters:

(a) that there was a Committee set up under Article 93(1);
(b) that such Committee had made recommendation on an electoral system based on Article 17(1);
(c) that following any such recommendation Parliament had enacted a law in accordance with Article 93;
(d) that the Representation of the People Act [CAP.146] was such law contemplated by Article 93; and
(e) that CAP.146 was enacted in accordance with Article 93.

There was no evidence to establish the matters ((a) to (e)) above.

As to the Appellant’s alternative submissions that the date for election of Parliament is the date of the first sitting of Parliament namely 30 March 1998, it is also rejected. This is not what is intended under Article 28(1) of the Constitution.

What remains, then, for consideration is the interpretation of Article 28(1) and in particular “the date of its election”.

We agree with the trial Judge that the starting point for construction of a provision of the Constitution is the Constitution itself. It is the supreme law of the Republic of Vanuatu. This is consistent with the Court of Appeal decision in Appeal Case No.11 of 2001 in which it was held:

“Where there is room for debate or it is possible that ambiguity exists assistance may be gained from consideration of the way in which Parliament in other places have operated in the past or operate now. But any of that is in all circumstances and at all time subject to the clear and unambiguous words of the Constitution which is the supreme law.” (Emphasis added)

Article 28(1) of the Constitution provides:

“Parliament unless sooner dissolved under paragraph (2) or (3) shall continue for four years from the date of its election”. (Emphasis added)

The particular words or expressions for interpretation are “Parliament” and “the date of its election”.

In accordance with the Constitution, Parliament is the Legislature (Art.15) which shall consist of Members elected (Art. 17) by every citizen of Vanuatu who is at least 18 years of age (Article 4(2)).

Article 4(2) of the Constitution states specifically, that: “... every citizen of Vanuatu who is at least 18 years of age shall be entitled to vote...”. (Emphasis added)

It follows, then, that to vote means to elect. The election is the action or an instance for every citizen of Vanuatu of 18 years of age to vote as provided under Article 4(2) of the Constitution. The right to vote or to elect and its exercise under Article 4(2) of the Constitution, constitute the democratic fundamental process and indeed constitutional precondition for the National sovereignty of the people of Vanuatu to be exercised by Parliament.

The expression “...the date of its election... ” under Article 28(1) means the date of the election of Parliament as the Legislature. The date must mean the date appointed for the exercise of right by the citizen to elect or to vote. In the present case, the date of the election of the current Parliament was 6 March 1998.

The declaration of the results of election are part of the powers, duties and responsibilities of the Electoral Commission as provided under the Constitution (Art. 18 & 20) and the Representation of the People’s Act [CAP.146]. The declaration of the results of the election by the Electoral Commission is functional. This is in line with the Interpretation Act [CAP.132]. We are therefore of opinion that the date of the declaration of the results of the election cannot be the date of the election of Parliament.

Although some assistance can be found under the Constitution to interpret Article 28(1), we arrive at the same conclusion reached by the primary Judge that the date of the election of the current Parliament was 6 March 1998. There is no need for us to discuss foreign and regional cases cited before us in this case.

The appeal is therefore dismissed. The costs of this appeal are for the Respondent to be paid by the Appellant and costs are assessed at 50,000VT.

DATED at PORT-VILA, this 13^th DAY of MARCH, 2002

BY THE COURT

Vincent LUNABEK
Chief Justice

REGGETT MARUM MBE
Judge