Sope v Attorney General (No. 1) [1988] VULawRp 12; [1980-1994] Van LR 356 (2 August 1988)

[1980-1994] Van LR 356

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 114 of 1988

IN THE MATTER
of the Constitution of the Republic of Vanuatu

AND:

IN THE MATTER
of the Members of Parliament (Vacation of Seats) Act No. 33 of 1983.

BETWEEN:

BARAK TAME SOPE
WILLIAM EDGELL
CHARLES GODDEN
JIMMY SIMON
ANATOLE LINGTAMAT
MAXIME CARLOT
Petitioners

AND:

ATTORNEY GENERAL
First Respondent

AND:

ONNYEN TAHI, MP,
SPEAKER OF PARLIAMENT
Second Respondent

[No. 1]

Coram: Justice G Ward

Counsel: Mr P Coombe for petitioners
Mr S Hakwa, Attorney General

JUDGMENT

[CONSTITUTIONAL LAW - PARLIAMENT - "majority" - "quorum" - STATUTES - interpretation of Constitution, effect of breach of Constitution]

The six petitioners, who are all elected Members of Parliament, seek a number of declarations that the provisions of the Constitution have been infringed in relation to them.

The declarations sought are:

(a) A quorum of Parliament on 21 July 1988 would have been not less than 31 members attending Parliament in person;
(b) There was no quorum of Parliament on 21 July I988;
(c) A quorum of Parliament would have been not less than 24 members attending Parliament in person;
(d) There was no quorum of Parliament on 25 July I988;
(e) The declarations purported to have been made by the second named Respondent, the Speaker, on 25 July 1988 pursuant to the Act of 1983 were and each of them are in breach of the Constitution, invalid and of no legal effect and are set aside;
(f) In the event that a further session of Parliament is called the quorum therefore shall be not less than 31 members attending Parliament in person;
(g) If no such quorum is present that Parliament shall meet three days later and that a quorum then be not less than 24 members attending Parliament in person;
(h) The constitutional rights of any one or more of the Petitioners have been infringed.

In his reply to Counsel for the Petitioners, the learned Attorney General raised objection to the inclusion of the sixth petitioner. This matter would have been better raised as a preliminary point and it is conveniently dealt with first.

By article 51(1) of the Constitution, anyone who considers that a provision of the Constitution has been infringed in relation to himself may apply to the Supreme Court for redress. It appears the learned Attorney General does not dispute the right of the first five petitioners to seek redress as they were affected by the Speaker's declaration under section 4(1) of the Members of Parliament (Vacation of Seats) Act. He objects to the sixth petitioner who is the leader of the Opposition, because he was not the subject of the Speaker's declaration.

It would seem to me that, as a Member of Parliament, he has an interest in seeing that Parliamentary procedures do not infringe the Constitution. Any such infringement must relate to him in that capacity and I rule that he has a right to apply to this Court for redress.

These proceedings arise from an Extraordinary Session of Parliament called on 21st July, this year. The Court has not been told who requested it or the matters to be discussed but it appears one of the items of business was to be a declaration by the Speaker under section 4(1) which would possibly state the first five petitioners had resigned from their party.

Such a declaration was made on 25th July, and they challenge its validity in view of an alleged breach of Article 19(4) of the Constitution. That article reads "(4) Unless otherwise provided in the Constitution, the quorum shall be two thirds of the members of Parliament. If there is no such quorum at the first sitting in any session Parliament shall meet three days later, and a simple majority of members shall then constitute a quorum."

No challenge is made of the first sitting on 21st July. The petitioners accept that there were insufficient members present to make up two thirds of the members and the Speaker adjourned for three days. The next sitting was on 25th July, the three days having expired on a Sunday.

The first two declarations sought (paragraphs 3(a) and (b)) relate to the sitting on 21st July. As there is no allegation of any infringement I decline to make those declarations.

In relation to the remaining declarations, both parties agree that, on 25th July, there were 46 elected members of Parliament and that only 23 were present at the sitting.

The third and fourth declarations (3(c) and (d)) relate to the quorum necessary at that sitting (although the date is not stated in 3(c)). The dispute relates to the meaning of "simple majority".

The learned Attorney General seeks to persuade the Court that, when the total is divisible into two equal parts, one of those parts will constitute a simple majority. He has cited various provisions relating to quorum from the Constitutions of neighbouring states. I find no assistance in those references when defining those words.

It is well settled now that, when interpreting a statute, words are to be given their natural and ordinary meaning unless the context otherwise requires or the result would be a patent absurdity. I see no reason to consider the word "majority" in the Constitution in any other way.

The Concise Oxford Dictionary defines it as the greater number or part. It defines "absolute majority of votes" as more than half the number of electors or actual voters; the number by which votes cast on one side exceed those on the other.

I attempt no better definition. A simply majority must include an excess of votes on one side. The contention of the learned Attorney General that it means an equal number is manifestly wrong.

Thus under article 19(4) a simple majority must mean at least one person more than half the members when the total is divisible into two equal parts. If the total is not an even number and, therefore, not divisible into two equal parts, a simple majority must mean the greater of the two parts.

Thus it is clear that paragraphs 3(c) and (d) of the petition are correct and I declare accordingly.

Declarations 3(f) and (g) also deal with the majorities needed to constitute a quorum and I now move to consider these.

It is clear from article 19(4) that the usual quorum is two thirds of the members. Where the division of the total number of members does not result in a whole number, the quorum must be taken to the next whole number above as, to do otherwise, would not include two thirds of the total. Thus, where there are 46 members, two thirds would be 30.6 so a quorum would require 31 members.

I therefore make the declaration sought in paragraph 3(f).

If, on the first sitting of the session and only the first sitting, that quorum of two thirds is not present and Parliament sits again three days later, a simple majority is required to establish a quorum. As I have already ruled, that would require 24 members in a House containing a total of 46 members and so I make the declaration sought in paragraph 3(g).

I add, for the sake of completeness, that, as the Speaker is an elected member, all counts of the members present will include him.

Paragraph 3(e) seeks a declaration by the Court that, as Parliament had insufficient members to make a quorum on 25th July, the Speaker's declarations under section 4(1) were made in breach of the Constitution and were, therefore, invalid and of no legal effect and should be set aside. This paragraph goes to the essence of this case.

It raises two main questions; first, how is a lack of quorum to be proved and, second, if it is, what is the effect on any business then transacted?

Mr Coombe submits on the second point that, as the Constitution states what makes a quorum, it must be a requirement of any sitting of Parliament, failure to attain a quorum at any such sitting is a breach of the Constitution and, therefore, any business conducted must be invalid.

He points to the paucity of Constitutional cases on the point but seeks support from a number of cases decided under the English Companies Acts where the absence of a quorum was held to prevent the conclusion of binding resolutions by the company. It is important to remember, when considering these cases, that the articles of association of a company will usually set out clearly the effect of lack of quorum and the steps to be taken. Such provisions are shown in articles 52 and 53 quoted in Re Hartley Baird Ltd (1954) 3 AER 695.

Article 19(4) of the Constitution is not so specific but I accept that, as a matter of inference, the clear intention is that Parliamentary business should cease in the absence of a quorum. Any business transacted, therefore, would be in breach of the Constitution and therefore, invalid.

However, it is still necessary to answer the first question, "How is lack of quorum to be proved?" As I have said, article 19(4) gives no assistance.

By article 19(5), Parliament is directed to make its own rules of procedure to provide a workable framework within which it can carry out the functions ascribed to it by the Constitution. The Court will only question those rules if they breach the provisions of the Constitution.

Standing Order No. 38 deals with the assessment of quorum in this way.

"Quorum:

38. 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."

That order accepts that, once a lack of quorum is established, the sitting must be adjourned and clearly accords with the intention of the Constitution. It sets up a procedure whereby the quorum can be challenged and the manner in which it must then be ascertained. Thus compliance with the Constitution is assured.

No duty is placed on the Speaker to take the initiative in this but it equally does not try to limit in any way the means by which his attention may be directed to the question. This is a sensible provision because the nature of Parliamentary proceedings is so different from the public meetings of, say, a company. During a debate in Parliament, members may not be present in the Chambers. They may be seeing constituents or discussing the topic under debate with other members outside. As the Speaker is unable to leave the chair whilst business continues, he is not in a position to assess the true number of people present at the sitting.

It is for that reason, Standing Order No. 38 sets a procedure that allows five minutes for the members present to attend the chamber itself where the count is to take place.

Normally, once the Speaker takes the chair, Parliament is made and the responsibility for quorum lies on the members. As has already been said, once his attention is drawn to the lack of quorum, for example, by a member raising it or when the total votes cast in a division is below the required number, he must follow the prescribed procedure and, if a lack of quorum is proved, adjourn the house. Failure to do so would lead to the result I have already described.

It is also good sense that no procedure is prescribed to ascertain the quorum during business conducted immediately prior to the count although it is probable the House has not been quorate for some time. It is assumed to be properly made and any business transacted to be valid until the lack of quorum is proved. Thus, in this case, until there is evidence before the Court that the Speaker's attention was drawn to the lack of quorum, it will assume a properly constituted House. It would seem unlikely that anything should rebut that assumption other than a count by the Speaker.

Provisions in a number of Pacific Island Constitutions which require a quorum also make the challenge a necessary step to obtain the adjournment of the sitting.

I refer to the Constitutions, as follows:

Fiji - article 58
Kiribati - article 74
Solomon Islands - article 67
Tuvalu - article 66
Western Samoa - article 57

Parliamentary practice here is clearly based on the Westminster model and I am fortified by similar procedures there as described in May's Parliamentary Practice (18th Edition).

Prior to the removal in, I think, 1979, of the members' right to call for a count, Standing Orders in the House of Commons required a quorum of 40 members. If the quorum was challenged, procedure required the Speaker to ring the division bell to enable members outside the chamber to return. Whilst the count was being conducted, the outer door was kept open to allow members who were still approaching to be counted.

Standing Orders also allowed times where a sitting could not be interrupted by a count and so, even if apparently not quorate, the matter could not be ascertained.

I accept these rules were made under the doctrine of legislative supremacy whereby the English Courts cannot hold an Act of Parliament to be invalid or unconstitutional. Where, as here, there is a written Constitution entrusting the Court with the interpretation of the Constitution and the determination of infringements, the situation is different.

Thus, if it is shown to the Court that any proceeding was in breach of a provision of the Constitution, it may make any order it considers appropriate to remedy the breach. That may include declaring any Parliamentary business, including Acts, to be invalid.

In this case I cannot accept that Standing Order No. 38 is in breach of the Constitution. Neither has any evidence been brought to suggest the Speaker's attention was brought to the lack of quorum at anytime on the 25th July prior to the ruling of the declaration under Section 4(1) or, indeed, after it. Only in that way can this Court accept a lack of quorum has been proved.

Article 19(5) clearly places the responsibility of regulating its own procedure on Parliament and, where the procedures do not breach the Constitution and have been followed, the Court will assume the sitting was properly made. To do otherwise could lead to the absurd position that if, years after a bill has been passed without complaint and the Act brought into effect, it is discovered that, unknown to Parliament at the time, one or some of the members present were disqualified and the House was thereby not quorate, the act would be declared invalid.

In these circumstances I decline to make the declaration sought in paragraph 3(e).

The final declaration is paragraph 3(h) is couched in very vague terms. In view of the declarations already made, I decline to make one in the terms of paragraph 3(h).

The declarations having been made as set out in the judgment, I order each party to pay its own costs.

2 August 1988

GORDON WARD
CHIEF JUSTICE

[Editorial Note: Further evidence was taken in this matter by Ward J. in proceedings S/C 116/88 (Carlot and Ors v Attorney General and Anor) where a separate judgment dealing with the same facts was delivered. The decisions of proceedings S/C 114/88 and S/C 116/88 then went on appeal to the Court of Appeal and is reported at C.A. 3/88.]