Vohor v Abiut [2004] VUCA 1; Civil Appeal Case 05 of 2004 (28 May 2004)

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

Civil Appeal Case No .05 of 2004.

BETWEEN:

Hon. Serge VOHOR & Ors.
Appellants

AND:

Hon. Roger ABIUT
Respondent

Coram: Hon. Justice Oliver Saksak
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsels: Mr. Ishmael Kalsakau for the Appellants
Messrs. Dudley Aru and Frederick Loughman for the Respondent

Hearing Date: 26th May 2004
Judgment Date: 28th May 2004

JUDGMENT

On 11 May 2004 the Claimants filed a Constitutional Application in the Supreme Court at Vila pursuant to the Constitutional Procedures Rules Order 26 of 2003. The Respondent was the Speaker of Parliament in his capacity as Acting President of the Republic.

On 23 April 2004 the Respondent in his capacity as Speaker of Parliament had summoned Parliament to meet commencing on Monday 10 May 2004 for the first ordinary session for this year, 2004.

On 7 May 2004 the Office of the President was declared vacant by the Supreme Court and thereafter the Respondent assumed the functions of the President under Article 37 (1) of the Constitution of the Republic of Vanuatu.

A Writ was issued on that date for the election of the President scheduled for 24 May 2004.

On 10 May 2004 the Claimants served upon the Respondent, the Speaker of Parliament a formal notice of motion of no confidence under Article 43 (2) of the Constitution. That motion was accepted by the Speaker who indicated it was in order and that he would issue notices to members of Parliament setting a date for debate.

Later on 10 May 2004 the Respondent performing the functions of the President received advice of the Council of Ministers to dissolve Parliament and later in the evening made a declaration on national television exercising his discretion to dissolve Parliament under Article 28 (3) of the Constitution. The instrument of dissolution of Parliament had confirmed that the Respondent, the Speaker of Parliament, was performing the functions of the President in accordance with Article 37 (1) of the Constitution on the advice of the Council of Ministers to dissolve Parliament.

There was a hearing in the Supreme Court on 12 May 2004 and in a decision of 13 May 2004, the learned Chief Justice struck out the constitutional application of the claimants and ordered costs against them. The learned Chief Justice held that the applicants had failed to establish that the dissolution of Parliament by the Respondent was unconstitutional null and void and of no effect and consequentially that the first ordinary session of Parliament did not remain in continuance and that the motion of no confidence would not be placed before a debate of Parliament.

The grounds set out by the claimants namely that the Speaker’s status as a member of Parliament affected or coloured his impartiality and independence to exercise the powers of the President to dissolve Parliament, and that the Speaker of Parliament was unable to exercise Presidential powers with regard to dissolution of Parliament because he would infringe upon the rights of the Appellants exercisable under Article 43 (2) of the Constitution and that the motion of non-confidence for the Respondent had already been filed and that having full knowledge of the motion the Respondent could not dissolve Parliament as Acting President, were rejected.

The Appellants now appeal against those rulings and findings.

In support of the appeal counsel for the Appellants argues that the learned Chief Justice misdirected himself in law and fact in the following respects:-

1. By not considering the Appellant’s constitutional application in its total context but confining himself to the grounds of it.
   
2. Having determined that the Constitutional application raised fundamental issues he failed to determine that the application disclosed a reasonable cause of action which should have been set down for a proper hearing of the facts and issues.
   
3. By stating in application of the facts that he was restricting his determination to an exercise of construction or interpretation of the Constitution.
   
4. By adjudging that the source of power to dissolve was founded under Article 37 (1) of the Constitution.
   
5. By wrongly interpreting Clause 12 of the Sworn Statement of Serge Vohor with the effect that the paragraph could be separated from the entire sworn statement in so far as what it expressed.
   
6. By holding that the sworn statement of Charlot Salwai could point to the Respondent acting upon the advice of the Council of Ministers.
   
7. By not expressing a view at such point in time of his decisions as to whether the Speaker performed the functions of the President as an Acting President or as Speaker of Parliament, which was an issue sought of him to be resolved.
   
8. By determining that the facts complained of in respect of the conduct of the Speaker and the challenges he was facing before he exercised his discretion to dissolve Parliament were not in dispute and were not relevant to the exercise of the power under Article 28 (3) of the Constitution.
   
9. By contradicting himself and in being indecisive of about the source of constitutional powers to dissolve between Article 37 (1) and Article 28 (3).
   
10. By determining that the motive, purpose or fore-knowledge of the Respondent did not in any way assist the Court in its constitutional interpretation exercise rendering them irrelevant considerations.
    
11. By wrongfully interpreting the relevant parts of the decision of Civil Appeal Case No. 8 of 1997; [1998] VUCA 3 President of Republic of Vanuatu –v- Maxime Carlot Korman & Ors. (Korman’s case).
    
12. By incorrectly applying Korman’s case to the present case particularly in relation to the exercise of powers by the Speaker having fore-knowledge.
    
13. In not properly applying Civil Appeal Case No. 8 of 1997 to the present case, rendering his judgment in relation to ground 3 erroneous.
    
14. By failing to determine that the fore-knowledge of the Speaker was relevant under Article 28 (3) of the Constitution and by not turning his mind to the President's ability in law to exercise the powers of dissolution of Parliament as being for the President alone and not for an acting President.
    

Detailed submissions were addressed to each of those grounds of appeal by the Respondent who submitted that the reasoning of the Chief Justice was correct. It was submitted that by reading Articles 37 and 22 it is clear that the framers of the Constitution knew that the Speaker would be a member of Parliament and that to restrict him exercising the functions of the President under Article 37 to dissolve Parliament, would be to render his powers nugatory. It was submitted that there was nothing in the Appellants’ case taken at its best that would be a basis for setting aside the Respondent’s decision. It was further submitted by the Respondent that Korman’s case was authority for the proposition that when the Speaker had received a notice of motion of no confidence in the Prime Minister the President was able to dissolve Parliament on the advise of the Council of Ministers. It was submitted that Korman’s case was a decision which applied equally to the Speaker when he performed the functions of President under Article 37 (1) of the Constitution. It was argued that the power under Article 37 of the Constitution could not be characterized as a delegated power but was an unrestricted and an unqualified power the same as accorded to the President and that notice of motion of no confidence could not prevent the exercise of the presidential power as quoted under the Constitution itself.

The Respondent further submitted that there was no submission that there had been an improper exercise of power by the Respondent in the grounds challenging the decision.

Article 43 (2) provides:-

“Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week’s notice of such a motion shall be given to the Speaker and the motion must be signed by one sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected.”

Here, there was a motion that had been accepted but no date had been set for its hearing. The Speaker himself in that capacity is not competent to close Parliament but the President or the Speaker of Parliament acting as President under Article 37 (1) has a discretion to dissolve Parliament on the advice of the Council of Ministers.

Article 37 (1) provides:-

“Whenever there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament shall perform the functions of President under this Constitution and any other law.”

Article 28 (3) of the Constitution provides:-

“The President of the Republic may, on the advice of the Council of Ministers, dissolve Parliament.”

As this Court had earlier held in Korman’s case, the Court can review the dissolution of Parliament if someone argues that his constitutional rights have been infringed by such an action. The Court in that case held that a motion of no confidence would not have priority over the constitutional right of the President to dissolve Parliament under Article 28 (3) when it said:-

“In our judgment a course of action which had the effect of denying Members of Parliament their right ‘to express an unfavourable opinion in the Government leadership’ cannot be elevated to a priority over the right of the Council of Ministers to advise the President that Parliament should be dissolved and the constitutional right of a President (having received such advice) to exercise the responsibility vested in him under the Constitution. We are of the view that the right of the people of Vanuatu to democratically express their view in the election of a new Parliament must be accorded the priority. Article 43 is not one of those Articles which is specifically covered by Article 5. The right which Members of Parliament have under Article 43, is a right which exists only if Parliament exists. It is to allow the tail to wag the dog to suggest that the rights of the Members of Parliament ought to be accorded priority over the rights of the people to elect a new Government when the President, having exercised the provisions of the Constitution, has determined that Parliament should be dissolved.”

With that view we concur. The Respondent in this case was performing the functions of the President under the Constitution and as such had the powers including the discretion to exercise the power to dissolve Parliament on the advice of the Council of Ministers. We agree with the learned Chief Justice in the Supreme Court that there was nothing to suggest from the evidence that there had not been proper advice of the Council of Ministers as to the dissolution.

We also agree with the submissions made in this Court and the finding of the learned Chief Justice in the Supreme Court that the power was properly exercised by the Respondent and that the Constitution envisaged that the Speaker, in performing the functions of the President, as a matter of common sense, had knowledge of what had gone on before in Parliament such as the pending motion of no confidence. The Constitution by providing for the Speaker to perform the functions of President envisaged that the Speaker would necessarily be a member of Parliament with, in the words of the learned Chief Justice, fore-knowledge. Provided that he lawfully performed the functions of the President under the Constitution, and provided that the decision which he made was not irrational or unsustainable or that he was not acting in a conflict of interest situation under Article 66 (1) (a) in his performing of the functions, his actions cannot be challenged, in our view. There was nothing before the learned Chief Justice that had indicated irrationality or unsustainability or conflict of interest, and it is our view that the power was properly exercised by the Respondent.

We are not persuaded that the learned Chief Justice wrongly applied the principles of Korman’s case. As he said, and as was said in that case, the Court is not concerned with the political views or policies of any person or party. The Court is not concerned with the desirability or undesirability of any particular course of action and “the Court considers only whether the rights and responsibilities which are enshrined in the Constitution have been lawfully and properly exercised and whether the law as created by Parliament has been given effect.”

The Court also said:-

“Article 28 (3) vests a wide and extensive discretion in the President. There is a heavy burden on anyone who asserts that there has been an improper exercise of that discretion. We are not satisfied that the Petitioners discharged that burden in the Supreme Court. Where the Constitution provides such a wide and unfettered discretion it is necessary to show that in legal terms the decision taken by the President was irrational and unsustainable. That has not been established on the evidence presented.”

As the learned Chief Justice held there was no evidence of any improper exercise of the presidential function by the Speaker on 10 May 2004 when he dissolved Parliament. In addition, the distinctions between Korman’s case and the present circumstances as submitted do not mean that the principles of that decision do not apply to this case. In particular the criticism as to where the Speaker acting as President was situated when he exercised his functions, namely in his office chambers at Parliament and not at the Presidential State Office, in our view has no substance. It is the exercise of that power and not the place of the exercise which is crucial. Certainly there was more of a link between the Speaker and the Council of Ministers in these circumstances and the President and the Council of Ministers but that is clearly envisaged by the plain words of the Constitution in Articles 22 and 37.

The words of the Speaker as Acting President in his announcement indicated, as in Korman’s case, a proper appreciation as to the exercise of the constitutional provision and, given that in the instrument of dissolution of Parliament that the Respondent signed he stated that he was Speaker of Parliament performing the functions of the President in accordance with Article 37 (1) of the Constitution of the Republic of Vanuatu, he clearly exercised the power under Article 28 (3).

We also find that there is no substance in the criticism of the learned Chief Justice that he failed to consider the constitutional application in full and that he embarked upon hearing their case in a short circuit of the procedure. After all, the learned Chief Justice stated that the matter needed to be dealt with as a matter of urgency bearing in mind the constitutional importance and the public interest in the matters raised. He specifically reduced the time for filing and service of the Constitutional Application and the time for filing any sworn statements and dealt properly with the core issues which needed to be determined.

We are also firmly of the view that the Respondent’s powers under Article 37 (1) are unrestricted and unqualified. The Speaker in that context has all the powers of the President.

We find that there is also no merit in the submission by the Appellants that the Respondent ought to have filed evidence in response. We agree with the conclusion of this Court earlier reached in Korman’s case that the President had a constitutional role to play and that it would be rarely appropriate for the President himself to give evidence or to become involved as an active party in this type of proceeding. This Court has already said that the position of the President is more akin to that of a judge who is cited as a party. The Attorney General should argue the position and the office holder should abide the decision of the Court. This is what was quite properly done in this case, in our view.

We are satisfied that the appeal cannot succeed and that the decision of the learned Chief Justice in the Supreme Court must stand and as a result we find that the dissolution of Parliament by the Respondent on 10 May 2004 was lawful, proper and constitutional.

Accordingly the appeal is dismissed with costs to the Respondent.

DATED at Port Vila, this 28^th day of May 2004.

BY THE COURT

Hon. Oliver A. Saksak J.
Hon. Patrick I. Treston J.
Hon. Hamlison Bulu J.