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Kilman v Natapei [2011] VUCA 24; Civil Appeal 16 of 2011 (22 July 2011)

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


Civil Appeal Case No. 16 of 2011


IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF VANUATU


BETWEEN:


THE HONOURABLE SATO KILMAN MP
Appellant


AND:


NIPAKEI EDWARD NATAPEI
First Respondent


AND:


SELA MOLISA MP, SERGE VOHOR MP, CHARLOT SALWAI MP, LORIN SOLOMON MP, KISTO TELEIMB MP, TAI VOISUSU MP, JOSHUA KALSAKAU MP, ETA RORY MP, IOAN SIMON MP, BOB LOUGHMAN MP, MOSES KAHU MP, PHILIP BOETORO MP, DAVID ABEL MP, THOMAS ISOM MP, PATRICK CROWBY MANAREWO MP, JOSIE MASMAS MP, DOMINIQUE MORIN MP (All members of Parliament)
Second Respondents


AND:


THE REPUBLIC OF VANUATU
Third Respondent


Coram: Hon. Justice J. von Doussa
Hon. Justice O. A. Saksak
Hon. Justice D. V. Fatiaki
Hon. Justice R. Spear
Hon. Justice P. Heath


Counsel: Mr. R. Sugden for Appellant
Mr. E. Nalyal for the First Respondent
Messrs. I. A. Kalsakau and F. Gilu for Third Respondent


Date of Hearing: 13 July 2011


Date of Judgment: 22 July 2011


JUDGMENT


  1. This is an appeal from the judgment of the Hon. Chief Justice delivered on 16 June 2011 in respect of an amended urgent Constitutional Case filed by the First and Second Respondents challenging the election of the Appellant as Prime Minister.
  2. We observe at this juncture that the particular event being challenged occurred on the 2nd of December 2010 and was not challenged until almost 6 months had elapsed when the application was filed by the Respondent.
  3. We endorse the observations and concerns of the Hon. Chief Justice that, there did not appear to be any apparent urgency in the matter and, more particularly, when he said:

"... it is seriously regrettable that this constitutional question on the validity of the election of a Prime Minister was challenged six (6) months after the impugned declaration on 2 December 2010 as many important decisions on behalf of the Government of the Republic have been undertaken since which have consequences on the life of the government and people of Vanuatu."


  1. It is important to place the respondent's constitutional challenge in its relevant undisputed historical and chronological context which may be summarised as follows:

● 25 Nov. 2010 Motion of No-Confidence in the Prime Minister Hon. Nipake Natapei is lodged with the Speaker of Parliament. Shortly after the Prime Minister Hon. Nipake Natapei left Vanuatu to attend a Climate Change Conference at Cancun, Mexico.


● 2 Dec. 2010 In the absence of the Hon. Nipake Natapei, Parliament at its second ordinary session passes the Motion of No-Confidence by a vote of 30 in favour and 15 against;


Speaker Hon. George Wells declares the Prime Minister's office vacant and suspends the session to allow for preparations to elect a new Prime Minister;


Speaker Hon. George Wells resigns and is replaced by Hon. Maxime Carlot Korman when Parliament resumes;


Speaker Hon. Maxime Korman calls for nominations of candidates to fill the vacant office of Prime Minister and receives just one nomination, Hon. Sato Kilman, who accepts his nomination;


Speaker Hon. Maxime Korman then unilaterally declares Hon. Sato Kilman (the appellant) as the newly elected and unopposed Prime Minister, without conducting a secret ballot;


● 14 Dec. 2010 The deposed Prime Minister (Hon. Nipake Natapei) with others lodges a Motion of No-Confidence against the appellant. The Motion was rejected by the Speaker;


● 14 April 2011 The deposed Prime Minister with others lodges a second Motion of No-Confidence against the appellant;


● 21 April 2011 Parliament convenes in an extraordinary session at the request of a majority of the Members of Parliament to debate the Motion of No-Confidence but, owing to a lack of a quorum, was adjourned for 3 days;


● 24 April 2011 Parliament reconvenes and of the 49 members present, 26 voted in favour of the Motion of No-Confidence against the appellant;


The Speaker Hon. Maxime Korman rules that the Motion was carried. The Hon. Serge Vohor Rialuth was then elected Prime Minister in place of the appellant by an absolute majority;


● 13 May 2011 The Court of Appeal, in Kilman v. Speaker of Parliament of the Republic of Vanuatu [2011] VUCA 15, declares the Speaker's rulings of 24 April 2011 invalid and unconstitutional and the appellant is reinstated as Prime Minister;


● 20 May 2011 Hon. Nipake Natapei files a constitutional challenge to the appellant's election as Prime Minister on 2 December 2010 viz Natapei v. Korman [2011] VUSC 72 later amended and consolidated on 8 June 2011;


● 16 June 2011 Judgment delivered by the Hon. Chief Justice in Natapei v. Korman [2011] VUSC 72 which is the subject of this appeal;


Speaker Hon. Maxime Korman issues summons to convene an extraordinary session of Parliament on 23 June 2011 to elect a new Prime Minister;


● 17 June 2011 Hon. Sato Kilman unsuccessfully sought in Natapei v. Korman [2011] VUSC 91 a court order directing the Speaker to reconvene Parliament as soon as possible;


● 21 June 2011 12 Members of Parliament in the Sato Kilman cabinet unsuccessful sought in Vanuaroroa v. Natapei [2011] VUSC 92 a declaration that they are and continued to be Ministers of State;


● 22 June 2011 Judgment delivered in Vanuaroroa v. Natapei [2011] VUSC 92;


● 23 June 2011 Parliament convened to elect a Prime Minister but the sitting had to be adjourned owing to a lack of quorum;


● 26 June 2011 Parliament convened and elected Hon. Sato Kilman as the new Prime Minister by secret ballot.


  1. The substantive application before the Hon. Chief Justice sought the following declarations and orders:

"1. An order that the declaration made by the First Respondent, Speaker of Parliament, on 2 December 2010 that the Second Respondent, Hon. Sato Kilman MP, is declared Prime Minister of Vanuatu, is unconstitutional and invalid.


2. A declaration that the purported election of the Prime Minister, Honourable Sato Kilman on 2 December 2010, was made contrary to the provisions of Article 41 and Schedule 2 of the Constitution, therefore, unconstitutional and invalid.


3. A declaration that the Honourable Nipake Edward Natapei remains as the Prime Minister until a new Prime Minister is elected.


4. An order that the Speaker of Parliament reconvene Parliament in accord with the Standing Orders of Parliament so that the Members of Parliament may elect a Prime Minister in accord with the provisions of Article 41 of the Constitution of the Republic of Vanuatu.


5. Any other Orders this Court considers just."


  1. Plainly, the respondents were challenging the appointment of the appellant as Prime Minister on 2 December 2010 after the Motion of No-Confidence in the first respondent was passed.
  2. The Hon. Chief Justice in a detailed and comprehensive judgment upheld the respondents challenge and made the following Orders and Declarations:

"1. THAT, the declaration by the First Respondent Speaker, Maxime Carlot Korman of 2 December 2010 that the Second Respondent, Hon. Sato Kilman was elected Prime Minister of Vanuatu was unconstitutional and invalid.


2. THAT, the purported election of the Prime Minister, Hon. Sato Kilman on 2 December 2010, was made contrary to the provisions of Article 41 and Schedule 2 of the Constitution, therefore was unconstitutional and invalid.


3. THAT, the Hon. Nipake Edward Natapei remains as the Acting Prime Minister until a new Prime Minister is elected - Article 43(2) of the Constitution. The effect of Article 43(2) is limited only to Mr Nipake Edward Natapei but not to the then appointed Ministers of Government.


4. THAT, the situation arising as the consequences of the constitutional challenges and changes in the administration of the affairs of the Government of the Republic of Vanuatu are deemed to be protected by the effect of the Judgment of the Court of Appeal dated 13 May 2011 and this from 13 May 2011. This is more so for the public expenditure.


5. THAT, the First Respondent Speaker of Parliament is ordered to convene Parliament as soon as possible so that the Members of Parliament shall elect a Prime Minister in accordance with the provisions of Article 41 and Schedule 2 of the Constitution.


6. THAT, the First and Second Applicants are entitled to their costs against the First Respondent and such costs shall be agreed or determined.


7. THAT, such costs shall be paid by the First Respondent personally."


  1. In upholding the respondent's challenge the Hon. Chief Justice said:

"Article 41 of the Constitution is simple and is very clear. The Prime Minister shall be elected by Parliament among its members by secret ballot. It is a mandatory provision. Schedule 2 of Article 41 set out the roles as to the process and the circumstances under which the election of a Prime Minister is to be conducted. The submissions of the First, Second and Third Respondents to the contrary are rejected. I accept the submissions of counsel Mr Edward Nalyal for the Applicants that Article 41 and Schedule 2 provide a process that is carefully designed for the election of a Prime Minister by Parliament. There is no other way to elect the Prime Minister apart from in accordance with Article 41 and Schedule 2 of the Constitution. If there is another way, then, the Constitution must say so. There is no such a provision in the Constitution.


In the present case, on 2 December 2010, when the First Respondent Speaker declared the Second Respondent Hon. Sato Kilman elected Prime Minister of Vanuatu unopposed without conducting an election by secret ballot in accordance with Article 41 and Schedule 2 of the Constitution, that declaration was made in breach and contrary to Article 41 and Schedule 2 of the Constitution. It was unconstitutional and invalid.


It follows from the unconstitutional declaration of the Speaker of Parliament of 2 December 2010, that the purported election of Hon. Sato Kilman as Prime Minister of Vanuatu on 2 December 2010 was made contrary to Article 41 and Schedule 2 of the Constitution. It is, therefore, unconstitutional and invalid."


  1. That decision as to the interpretation of Article 41 and Schedule 2 of the Constitution is not challenged in this appeal and, in our respectful view, cannot be faulted. We would merely add by way of clarification that compliance with Parliamentary Standing Order 8 is clearly necessary in the election of the Prime Minister. Furthermore, the conduct of a secret ballot is a vital and essential step in the election of the Prime Minister who must in terms of Schedule 2 Clause 1 of the Constitution be, "... the candidate who obtains the support of the absolute majority of the members of Parliament ..."
  2. After those introductory remarks we set out the appellant's grounds of appeal which reads as follows:

"1. In fact and in law in failing to dismiss the Application in Constitutional Case 05 of 2011 on the basis that the Applicants had irrevocably elected not to challenge the validity of the Appellant's election as Prime Minister by bringing three Motions of No-Confidence against him as Prime Minister pursuant to Article 43(2) of the Constitutional after that election;


  1. In fact and in law in failing to rule that, on the basis of the evidence before him that the Respondents were estopped from claiming in Constitutional Case 05 of 2011 that the election of the Appellant as Prime Minister was invalid because they had had the opportunity to raise this matter for the Court's attention in Constitutional Case No. 02 of 2011 that was heard on 28 and 29 April 2011 but had not done so and therefore the principle applied by the High Court of Australia in Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 estopped them.
  2. In law in failing to hold that, having found as a fact that the election of the Appellant, on 2nd December 2010 as Prime Minister did not comply with the requirements of the Constitution, he nevertheless had a discretion to refuse to grant the relief sought.
  3. In law and in fact in failing to hold that, in the proper exercise of his discretion, he ought to refuse to grant the relief sought or any relief because the Respondents did not bring their Application promptly but, waited almost six months before doing do when they plainly had the opportunity to bring it at a much earlier time."

(Our underlining)


  1. The grounds of appeal clearly raise matters of delay, election, and estoppel as well as the discretionary nature of the Court's power to grant or refuse relief. These are further elaborated upon in counsel's written and oral submissions which seek to introduce the principles, jurisprudence and language of judicial review into the present constitutional application. We merely express the view that the use of the familiar language of judicial review is unhelpful when construing the Constitution "sui generis" and is more likely to result in confusion than clarity.
  2. In this regard counsel submits with reference to the prerogative writ of certiorari that the court has a discretion to refuse certiorari where there has been undue delay in applying for relief even where an application is brought within a prescribed time limit. Counsel accepts however that there is no time limitation prescribed in Article 53 or in the Constitutional Applications Rules for bringing an application for constitutional redress.
  3. The respondents submit that in the absence of any prescribed time limit, the right to seek redress under Articles 6 and 53 of the Constitution cannot be restricted and is unfettered. In this regard it is noteworthy that Article 6 may be invoked before any infringement of the Constitution has occurred whereas Article 53 can only be invoked after the Constitution has been infringed.
  4. From the foregoing chronology, appellant's counsel submits that the respondents exercised their rights under Article 43(2) of the Constitution to bring Motions of No-Confidence in the appellant as Prime Minister on several occasions and such a right counsel submits is premised on an acceptance of the validity of the appellant's appointment as Prime Minister which is inconsistent with the exercise of the respondents rights under Article 53(1) of the Constitution. On principle we cannot agree.
  5. The right to invoke Article 53(1) is expressly stated to be "... without prejudice to any other legal remedy available ..." and a perusal of the relevant Motions of No-Confidence indicates that they are based on grounds other than that the appellant's appointment as Prime Minister on 2 December 2010 was invalid and unconstitutional.
  6. In those circumstances we do not accept that the respondent's lodgement of Motions of No-Confidence against the appellant amounted to "... a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights" per Mason CJ in the Commonwealth v. Verwayen [1990] CLR 540 at 550. Needless to say we can see no inconsistency in the exercise of the right of an individual to seek from the Supreme Court, redress under Article 53(1) for an infringement of the Constitution and the quite distinct right of a member of Parliament to invoke Article 43(2) in seeking the removal of the Prime Minister in and by Parliament. As this Court observed in President of the Republic of Vanuatu v. Korman [1998] VUCA 3:

"... the right which Members of Parliament have under Article 43, is a right which exists only if Parliament [and for present purposes we would add a Prime Minister] exists".


  1. Likewise we reject counsel's submission that the Anshun Principle, derived from the case of Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; [1987] 147 CLR 589, has application in the circumstances of this case.
  2. We are not unmindful of the earlier decision of this Court in Kilman v. Speaker of Parliament of the Republic of Vanuatu [2011] VUCA 15 which upheld the appellant's challenge to his removal by the Speaker after Parliament passed a Motion of No-Confidence in him which was supported by 26 votes and which the Court of Appeal ruled did not constitute "an absolute majority of the members of Parliament" as required under Article 43(2).
  3. That case however was one between the appellant and the Speaker of Parliament only and did not include most of the respondents in the present case. When this important difference was pointed out to counsel he did not press the argument further.
  4. For the foregoing reasons we reject the submissions of the appellant's counsel as to the applicability of delay, election, and estoppel to the right of an applicant to seek constitutional redress. That is not to say, however, that such considerations are irrelevant in the Court's determination or evaluation of what in all the circumstances is or is not an "appropriate" remedy to grant. Clearly in our view, they are relevant considerations, especially in the grant of consequential relief. For instance, the passage of time coupled with subsequent events after a breach of a constitutional provision may render the grant of any consequential relief unnecessary or inappropriate.
  5. We accept however that, unlike Article 43(2) which sets out what is to occur after a Motion of No-Confidence is passed by Parliament viz "... The Prime Minister and other Ministers ... shall continue to exercise their functions until a new Prime Minister is elected", Article 53(2) merely provides that:

"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".


  1. We note Article 53(2) is differently worded from Article 6(2) of the Constitution which also deals with the enforcement of fundamental rights and which grants the Supreme Court a clear discretion ("... may make such orders ... as it considers appropriate to enforce the right"). In our view the wording of Article 53(2) militates against a refusal altogether to grant redress and requires the Court, upon determining that a constitutional provision has been infringed in relation to the applicant, to evaluate and grant redress that "... it considers appropriate to enforce the provision of the Constitution". While ordinarily, it will be necessary to make orders to remedy a breach, there will be rare occasions when no more than a bare declaration will be sufficient.
  2. It is not possible to lay down any hard and fast rules or guidelines as to what is or is not an "appropriate" remedy for every circumstance where a constitutional provision has been infringed other than to say that the Court is obliged to consider all relevant circumstances in the case having due regard to the need "to enforce" the constitutional provision that has been breached and, the equally important need to exercise a degree of restraint and deference towards Parliament, so that any remedy fashioned by the Court will intrude as little as possible with the continuity and orderly functioning of Parliament. This approach accords with the respect that the three branches of Government are expected to show to each other.
  3. In the present case under appeal the Hon. Chief Justice, in addition to declaring the appellant's purported election and declaration as Prime Minister on 2nd December 2010, "unconstitutional and invalid", also made orders designed to return matters to the situation that prevailed on 2nd December 2010 after the Motion of No-Confidence was successfully carried against the first respondent, who, in accordance with the provision of Article 43(2), immediately ceased to hold the office of Prime Minister. Although Article 43(2) envisages that the Prime Minister who has been subjected to a vote of No-Confidence will remain in office until a new Prime Minister is (validly) elected, the reality of the present situation is that Hon. Sato Kilman held de facto office as Prime Minister until his election was declared unlawful in the judgment under appeal.
  4. It is perhaps unfortunate that in Order 3 of the Hon. Chief Justice's Orders the first respondent is referred to as "the Acting Prime Minister" at a time when he had ceased to hold the substantive office and Hon. Sato Kilman was fulfilling that role on a de facto basis.
  5. In the unusual and rare circumstances of this case, we are persuaded that the following considerations make it inappropriate to grant the consequential Orders 3 and 4 that effectively returned the first respondent and his cabinet albeit in a caretaker capacity:
" ... a well recognised rule of the common law that where a person has exercised powers and functions of a public office which involve the interests of the public and third persons, with colour of right, the exercise of those powers and functions is accorded validity even if there has been a defect or irregularity in the manner of the appointment of that person such that the appointment was not a valid one. This doctrine has been referred to as the doctrine of de facto office."

(e) That the costs and inconvenience likely to be occasioned by a temporary change of Government for a period of 10 days far outweighs any short term benefit that might be achieved by the respondents' pyrrhic victory;

(f) That Declarations (1) and (2) and Orders 6 and 7 of the Hon. Chief Justice's decision were a sufficient vindication of the provisions of the Constitution and the respondents application challenging the appellant's purported election on 2 December 2010.
  1. Accordingly, and for the foregoing reasons, we allow the appeal and set aside Orders 3 and 4 of the Hon. Chief Justice's judgment.
  2. The appellant having succeeded in the appeal is awarded his costs of the appeal against the respondents which we fix at VT 250,000.
  3. As there has been no appearance by the Speaker of Parliament or a cross-appeal against Order 7 of the Hon. Chief Justice's judgment that he personally bears the costs in the lower court, we see no reason to interfere with that order in this appeal.

DATED at Port Vila, this 22nd day of July, 2011.


BY THE COURT


Hon. Justice J. von Doussa


Hon. Justice O. A. SAKSAK


Hon. Justice D. V. Fatiaki


Hon. Justice R. L. B. Spear


Hon. Justice P. R. Heath

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