Malere v Republic of Vanuatu [1983] VULawRp 5; [1980-1994] Van LR 56 (2 December 1983)

[1980-1994] Van LR 56

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 170 of 1983

BETWEEN:

AIME MALERE, HARRY KARAERU, THOMAS TUNGU,
ALFRED MALIU, WILLY NALAN and AMOS ANDENG
Plaintiffs

AND:

THE REPUBLIC OF VANUATU
Defendant

Coram: Chief Justice Cooke

Counsel: Mr W McKeague for plaintiff
Mr K Mataskelekele for defendant

JUDGMENT

[PARLIAMENT - entitlements of members - STATUTES - interpretation]

The Plaintiffs were charged with various criminal offences in connection with a rebellion that took place in Santo in 1980. They all pleaded guilty and on their own pleas were convicted and sentenced to terms of imprisonment.

Whilst incarcerated they were totally unable to attend Parliament.

When the Plaintiffs had served their sentences they returned to Parliament and again their monthly allowances were paid to them.

Plaintiffs each claim from the Government of Vanuatu the sum of VT.70,000 per month for the period of their incarceration stating that under Section 3(1) of the Representative Assembly (Members Allowances) Regulation 1980 they were entitled to such.

By agreement between Mr. McKeague Counsel representing the Plaintiffs and Mr. K. Matas-Kelekele Counsel for the Government, the following points of Law were set down for hearing:

(i) "Whether Members of Parliament are entitled to receive their monthly allowances provided for under Joint Regulation No. 12 of 1980 for any period while such Member of Parliament is absent from Parliament."

(ii) "If such Member of Parliament while absent from Parliament is entitled to receive any part or parts of such monthly allowance, then which part or parts is such Member entitled to receive while absent from Parliament."

In regard to point one, I will deal only with such as it relates to the facts in this case. Point two will follow from any decision on point one.

In his written submission Mr. McKeague stated that the provision of Section 3(1) of Joint Regulation No. 12 of 1980 which states-

"Members representing constituencies outside Municipalities shall be paid a monthly allowance of VT.70,000 to cover representation, touring, subsistence and attendance allowances."

are clear and unambiguous so the golden Rule of statutory interpretation as quoted by Mr. Justice Burton in Warburton v Loveland (1828), I Hudson and B. Irish Cases 623 at page 648 must be followed which is-

"In the first instance, the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or declared purpose of the Statute, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended or abridged so far as to avoid such inconvenience but no further."

Mr. McKeague submitted there is a precondition for the monthly allowance to be paid and the precondition is that the person involved is a Member of Parliament. He submits that once it is established that a person is a Member of Parliament then the monthly allowance shall be Paid. He then submitted that Section 3(1) states they are paid this allowance to cover representation, touring, subsistence and attendance. That the latter words do no more than indicate what Members of Parliament must meet out of their allowances; that the fact that a Member may not attend Parliament or may not perform any of these matters set out is irrelevant; that if Parliament intended such to be relevant, the Act would contain provisions for Members to account for their expenditure in order to justify their allowance. Mr. McKeague referred to Joint Regulation No. 4 of 1978 which was in force prior to its repeal and replacement by Joint Regulation 12 of 1980. He referred to the various sections where separate provision was made for allowances for travelling, touring, accommodation, subsistence, attendance and representation and that the whole tenor of the repealed Joint Regulation was as he describes it - accountability. He submits that if it was intended that this monthly allowance or some part of it was not to be paid to Members because they could not account for or could not perform or did not perform under one of the headings of representation, touring, subsistence and attendance, then there was no reason to change the format and wording of the repealed Joint Regulation 4 of 1978. He submitted that he thought the separate allowances were lumped into one monthly allowance to overcome the problem of accountability that existed under repealed Regulation 4 of 1978. Finally, Mr. McKeague submitted that the law does not provide that a person ceased to be a Member of Parliament on being sentenced to a term of imprisonment or even for non attendance at the Meetings of Parliament and that the Plaintiffs are entitled to receive the allowance by virtue of being Members of Parliament and their inability to perform either fully or partially any of the duties of a Parliamentarian is irrelevant to the question of their entitlement to the monthly allowance. If they were relevant, he says, then surely the law would contain provisions for Members to account for their expenditure in order to justify each part of the allowance or actually undertake the required duty such as physical attendance at Parliament in order to receive it.

Mr. Kalkot Matas Kelekele, Counsel for the Government of Vanuatu, submitted that although the words of the Act seem to give a clear indication as to what should be done, when reading the Act as a whole, there seems to be some uncertainty as to Joint Regulation 12 of 1980 and such uncertainty as to the proper intention requires the court to interpret what is actually the true construction. He submitted the Act should be read as a whole and if so read the payment of the allowances is conditional. That one of the conditions is that the person has to be a Member of Parliament and that the other conditions though not expressed can be implied when reading the Act as a whole. He referred to Sections 4 and 5 which provided for alternate members who are entitled to receive an attendance allowance per day on behalf of the elected member they represent and a daily accommodation and subsistence allowance both these allowances being deducted from that paid to the elected member. He submitted that such being the case, it is clear that if the elected member did not attend Parliament, he had the attendance allowance, accommodation and subsistence allowance deducted.

In other words if the member did not attend he forfeited the allowance payable. This, said Mr. Matas Kelekele, should clarify the intention of the legislature when they passed the Regulation.

He did, however, stress that when the Constitution came into force, these two sections fell away, as no provision is made for alternate members, but the intention of the legislature when the Regulations were made remains and is relevant for interpretation of Section 3(1). Mr. Matas Kelekele referred to the case of Edinburgh Street Tramways v Torbain (1977)3 App. Cas. 58 at page 68. Lord Blackburn said: "I quite agree that in construing an Act of Parliament we are to see what is the intention which the Legislature has expressed by the words, but then the words again are to be understood by looking at the subject matter they are speaking of and the objects of the legislature, and the words used with reference to that, may convey an intention quite different from what the self-same set of words used in reference to another set of circumstances and another object would or might have produced."

He also referred me to what Lord Radcliffe has said in Att. Gen. Canada v Hallett & Carey Ltd. (1952) A.C. 427 at p. 449. He said - "There are many so-called rules of Construction that courts of law have resorted to in their interpretation of Statutes, but the paramount rule remains that every Statute is to be expounded according to its manifest and expressed intention.

Finally, Mr. Matas Kelekele submitted that the law should be construed with effect from the date it was passed and happenings thereafter which might make a section of the law ineffective would be irrelevant. He quoted the remarks of Lord Esher in the case of The Longford [1888] UKLawRpPro 42; (1889) 14 P.D. 34 at p.36. -

"The first point to be borne in mind is that the Act must be construed as if one were interpreting at the day after it was passed."

This case raises for decision a single point.

What is the proper interpretation of the words "shall be paid a monthly allowance of VT.70,000 to cover Representation, Touring, Subsistence and Attendance allowances" which appear in Section 3(1) of the Representative Assembly (Members Allowances) Regulation 1980, hereinafter referred to as "the Regulation"?

The question, as far as I can ascertain, is not one that is covered by any previous Judicial authority. I have taken into consideration all the general rules of construction submitted to me by Counsel and set out in both Odger's Construction of Statutes and Maxwell on Interpretation of Statutes. I reject Mr. McKeague's submission that once it is established that a person is a Member of Parliament then that monthly allowance shall be paid. To give the subsection such a meaning, one would have to forget the existence of the words "To cover Representation, Touring, Subsistence and Attendance allowances". These words, in my opinion, are influenced by the context in which they appear. They have a clear meaning and that meaning is confirmed by reading the whole of the regulation. In particular sections 4 and 5 which provided for alternate members to attend on behalf of the elected members; the allowances permitted to them and deductible from the allowance of the Member. Yes, such sections have ceased to be effective, but the intention of the Parliament has to be considered when the regulation was brought into force. That being so, if a member did not attend, his alternate was paid allowances, showing clearly that the words "To cover representation, touring, subsistence and attendance" were intended as a condition of the monthly allowance. The Standing Orders of Parliament envisage a wide range of action as appropriate to an elected member, as, for instance, written motions, statements by members and Matters of Privilege. All these specific activities are certainly tied to what takes place in proceedings in Parliament requiring representation and attendance of Members in the House.

The most perhaps that can be said is that, despite reluctance to treat a Member's duty as going beyond anything that is essential, it is generally recognised that it is impossible to regard his only proper functions as a member as being confined to what the member does in Parliament itself. It is recognised that his functions can include actions other than the mere putting down and asking a parliamentary question i.e. matters on behalf of one of his constituents.

In interpreting s.3(1), therefore, it seems to me, one must first ask oneself whether the regulation is conditional to the carrying out of the duties and if such duties are not performed, then is the member entitled to claim any remuneration for something which he has not done.

Where the facts show clearly, as they do here, that a member shall be paid a monthly allowance to cover Representation, Touring, Subsistence and Attendance and by his own act and plea he is incarcerated for a period of time in an institution which deprives him of all liberties (being distinct from a period of time when a member is sick or on leave overseas) then in my opinion it is the clear intention of Parliament that he cannot claim such a monthly allowance, being totally unable to carry out the duties which Parliament envisaged he should do to claim such allowance.

I hold that the Plaintiffs are not entitled to any allowances during the period when totally incarcerated. Accordingly, Judgment is entered for the Defendants. No order as to costs.

2 December 1983

FREDERICK G. COOKE
CHIEF JUSTICE