Sope v Attorney General (No. 2) [1988] VULawRp 13; [1980-1994] Van LR 363 (10 August 1988)

[1980-1994] Van LR 363

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 113 of 1988

BETWEEN:

BARAK TAME SOPE
WILLIAM EDGELL
CHARLES GODDEN
JIMMY SIMON
ANATOLE LINGTAMAT
Applicants

AND:

ATTORNEY GENERAL OF THE REPUBLIC OF VANUATU
VANUAAKU PATI
ONNEYN TAHI, SPEAKER OF PARLIAMENT
Respondents

[No. 2]

Coram: Ward J

Counsel: Mr P. Coombe for Applicants
Mr S. Hakwa, Attorney General

JUDGMENT

[CONSTITUTIONAL LAW - PARLIAMENT - STATUTES -
freedom of expression considered - "members" considered]

On 9.6.88 the Speaker of Parliament received a note signed by the five petitioners and sixteen other members of Parliament requesting, it would appear, an extraordinary session of Parliament and including for discussion a motion of no confidence in the P.M., Fr. Lini. The same day, the Speaker sent a notice (Ex. 5) to the signatories ruling that it was not in order because of irregularities relating to the number of signatories required for an extraordinary session.

The five petitioners were all members at the time of the Vanuaaku Pati which is the party of the P.M. and his Government.

By section 2(f) of the Members of Parliament (Vacation of Seats) Act, 1983, a member of Parliament shall vacate his seat if having been a candidate of a party and elected to Parliament he resigns from that party. Section 4(1) of the act provides:

"(1) Where circumstances such as referred to in section 2(f) arise, the leader in Parliament of the party as a candidate of which the member was elected, shall so inform the Speaker in writing of those circumstances, and the Speaker shall, at the sitting of Parliament next after he is so informed, make a declaration that the member has resigned from the party."

On 17th June 1988, the Speaker wrote to the five petitioners saying he had, that day, received a letter from the PM with information relating to sections 2 and 4 of the 1983 act and stating that he would give his ruling at the next session of Parliament. By that, it is clear he meant he would be making the declaration referred to in section 4(1).

The petitioners asked the Speaker for a copy of the information he had received from the PM but it was refused. However. the first petitioner then received a letter, dated 9th July and copied to the other petitioners, from the acting Chairman of the Vanuaaku Pati which set out the basis of the PM's information. That letter refers to a meeting with the petitioners on the 10th June at which ".... the writer as Acting executive Council informed you that according to standing Pati rules of conduct you and your four colleagues abovenamed were deemed to have resigned from the Vanuaaku Pati as from the 9th June 1988. The rule of conduct is that a Vanuaaku Pati Member of Parliament who supports a motion of non-confidence in a Vanuaaku Pati led Government must resign from the Vanuaaku Pati before giving such support, and if such a Member of Parliament does not at first resign from the Vanuaaku Pati as required then he is deemed to have resigned from the Vanuaaku Pati as soon as he manifests his support for such a motion of non-confidence. Since you and your four colleagues had initiated and signed a motion of no-confidence in the Government of Father Lini dated 27th May 1988, but that the Executive Council of the Vanuaaku Pati became aware of the motion document only on the 9th June 1988 when it was lodged with the Parliament Secretariate, therefore under the Pati rule of conduct you were deemed to have resigned from the Pati on the 9th June 1988 along with your four colleagues abovenamed. This was the explanation given by the writer to you on 10 June at the meeting."

It then goes on to detail various meetings and correspondence that had taken place prior to 9th July.

As a result of those events, the petitioners sought the following declarations:

"(2) A Declaration that:-

• (a) The "rule of conduct" alleged in paragraph 7 hereof does not exist in law or in fact;
• (b) In the alternative the said "rule of conduct" is contrary to the Constitution and invalid and of no legal effect;
• (c) Section 2(f) of the Act of 1983 is contrary to the Constitution and invalid and of no legal effect;
• (d) Section 4 of the Act of 1983 is contrary to the Constitution and invalid and of no legal effect;

(3) A Declaration that the Petitioners have not resigned as members of the Vanuaaki Pati.

(4) A Declaration that the constitutional rights of any one or more of the Petitioners have been or are likely to be infringed."

This petition was filed on 18th July and an application was made for an injunction restraining the Speaker from making the declaration pursuant to section 4(1). It was heard by the learned acting Chief Justice on 20th July and refused in a judgment dated 21st July.

On 25th July, the Speaker, at an extraordinary session of Parliament, made the declarations under section 4(1) that each of the five petitioners had resigned from the party. The result is that the petitioners have all ceased to perform their functions as members of Parliament in accordance with section 4(4) of the 1983 act.

In view of the prayer on the petition, it is necessary to set out the remaining provisions of section 4-

"(2) Where within a period of thirty days of the declaration by the Speaker the member does not institute legal proceedings to challenge the allegation that he has resigned he shall vacate his seat at the end of the said period of thirty days.

(3) Where within thirty days of the declaration by the Speaker, the member institutes legal proceedings as aforesaid he shall not vacate his seat unless and until either the proceedings are withdrawn or the proceedings are finally determined by a decision upholding the resignation, the decision being one that is not open to appeal or in respect of which the time allowed for an appeal has expired without an appeal being filed.

(4) From the date of the declaration by the Speaker under subsection (1) the member shall cease to perform his functions as a member of Parliament and he shall resume the performance of such functions only if and when the legal proceedings referred to in subsection (3) are finally determined within the meaning of that subsection in favour of the member."

Evidence was heard and a considerable amount of argument presented over the so-called rule of conduct of the Vanuaaku Pati. However, at the eleventh hour, the petitioners conceded that there was such a rule of conduct and that it forms part of the Constitution of the Vanuaaku Pati and has done so since the 1982 Pati Congress.

As a result, the petitioners have now abandoned the allegation set out in para 10 of their petition that the rule of conduct does not exist in fact or law and no longer seek the declaration in 2(a). However, they do still seek declaration number 3.

It is necessary therefore, to deal briefly with the history. There was considerable dispute about the way in which it arose but the petitioners now accept the evidence of Mr Mataskelekele. Had they not made the concession, I would have found against them on this point.

The history of the Pati goes back the New Hebrides Cultural Association. However, the same year it became the New Hebrides National Party and the original constitution was drawn up. In about 1974 the constitution was rewritten and that version, known as the 'ad hoc constitution', remained until the present constitution was written by Mr Mataskelekele.

The first time a complete draft was circulated amongst members of the Vanuaaku Pati, as it was now named, was at the 1982 Pati congress in Pentecost.

During that Congress no amendments or additions were proposed to the Constitution one of which is the rule of conduct referred to. As far as is relevant to these proceedings it reads -

"Motion of No-Confidence

1. No Vanuaaku Pati member of Parliament may move or sign or support a motion of no-confidence in Parliament in the Government leader chosen by the Pati unless he or she first resigns from the Pati.

2. Any Vanuaaku Pati member who moves or signs a motion of no-confidence in the Government leader chosen by the Pati without first resigning from the Pati is deemed to have resigned when he or she moves or supports such a motion."

The Congress adopted the constitution including the additions as the Pati's provisional constitution and it was presented in that form to the 1983 Congress on Ambrym where it was ratified. It remains the constitution of the Pati and the petitioners as members were bound by its provisions. It is clear that, when they signed the motion of no-confidence as party members and had not resigned, they were deemed to have resigned by para 2. That deemed resignation occurs at the time of signing the motion. Any subsequent act to withdraw the motion or failure to have the motion accepted for procedural reasons or attempts at reconciliation with the Pati do not change the fact of the resignation.

The PM, as leader of the Pati in Parliament was correct to inform the Speaker and, once he was so notified, the Speaker had to made the declarations under section 4(1).

Thus, the Court is left to consider the question of whether that Pati rule of conduct and sections 2(f) and 4 either in its entirety or alternative only 4(4) are contrary to the Constitution of Vanuatu.

They can all be considered together because the petitioners apply the same argument to each saying they are contrary to articles 5(1)(d), 16(1), 17(1), 25(1), 26(1) and 26(5) of the Constitution.

During his closing address to the Court, Mr Coombe, counsel for the petitioners, abandoned the alleged contravention of article 5(1) (d).

Article 5 deals with Fundamental Rights and the part relevant to this case is:

"5(1) The Republic of Vanuatu recognises that ...... all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to the rights and freedoms of others .....

(g) freedom of expression."

The other provisions are:

"16 (1) Parliament may make laws for the peace, order and good government of Vanuatu."

"17 (1) Parliament shall consist of members elected on the basis of universal franchise through an electoral system which includes an element of proportional representation so as to ensure fair representation of different political groups and opinions."

"25 (1) No member of Parliament may be arrested, detained, prosecuted against in respect of opinions given or votes cast by him in Parliament in the exercise of his office."

"26 (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 one 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, dissolve 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 paragraph (2) or (3)."

The right to challenge these sections of the 1983 act is given under articles 6(1), 51(1) and 52 of the Constitution. By article 2, the Constitution is the supreme law of Vanuatu and, by section 9 of the Interpretation Act, every act shall be read and construed subject to the Constitution and where there is a conflict the Constitution shall prevail but other parts of the same act not in conflict will remain valid.

It is also urged by Mr Coombe that the Constitution is a document sui generis and must be given a meaning that is not bound by the normal rules of statutory interpretation. I accept that is correct. Equally, where the words used are broad and liberal as in Chap 2 of our Constitution, the interpretation should reflect that. In Minister of Home Affairs and Anor v. Fisher and Anor [1979] UKPC 21; [1979] 3 All ER 21, it was aptly expressed by Lord Wilberforce giving the decision of the Board at p.26, when he said he preferred "to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described (i.e. drafted in a broad and ample style which lays down principles of width and generality (p.25), without necessary acceptance of all the presumptions that are relevant to legislation of private law... This is in no way to say that there are no rules of law which should apply to the interpretation of a constitution. A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."

How then does Mr Coombe suggest these various matters are contrary to the Constitution?

He bases it on two arguments:

1. That they effectively restrict the petitioners' rights to freedom of expression; and

2. Once elected to Parliament, a member retains his seat until dissolution and any attempt to prevent him exercising his functions as a member is a breach of the Constitution.

I deal with them in that order. As regards freedom of expression, Mr Coombe urges that the petitioners were duly elected members of Parliament and as such their right to freedom of expression extends to expressing their views in the Chamber to which they were elected. He suggests that the steps taken by the PM and the Pati are designed precisely to prevent them stating their views on the leadership of the Party.

He cites Olivier & Anor v. Buttigeig [1966] 2 All ER 459 in support but I do not derive much assistance from that case. The provisions of the Constitution of Malta on which that case was decided differ markedly from article 5(1)(g) in our Constitution. The Maltese provision is that no person shall be hindered in his enjoyment of his freedom of expression that is to say freedom to hold opinions and to receive and impart ideas and information without interference. The decision of the Privy Council was to rule that there had been hindrance and interference.

I do accept it however as authority, as Mr Coombe urges, for the fact that even a small restriction of a fundamental freedom is sufficient reason for the courts to interfere.

Our article 5(1)(g) recognises that all people are entitled to freedom of expression without discrimination on the various grounds listed including political opinions.

I cannot accept that the provisions of the 1983 act or the rule of conduct can be seen as removing that entitlement. The petitioners are still entitled to express their views freely. They are not able to express them in Parliament because they have had that function suspended but that does not deprive them of their fundamental rights. The right to be a member of Parliament and speak in the House is not a fundamental right of all persons. It is a privilege given them by the electorate. They are voted in because a majority of electors wish them to express the views of the party for which they have stood in the election. The right to freedom of expression by a candidate is enshrined in his absolute right to stand for any political party he wishes or to stand for his own personal views if they differ from those of the parties. However, having once voted for him as the representative of a particular party, the electorate have a right to expect him to act in a manner consistent with that. All the rule of conduct and the act of 1983 do is to ensure that, if his opinions and allegiance change, the electorate should have the right to decide if he continues to represent their views or if they would like someone else to speak for them in Parliament.

Like any other person, he is still free to express his views. All that he has lost is the extra privileges that he was given at the wish of the electorate.

The petitioners were elected as members of the Vanuaaku Pati. Since then, they have joined with members of the opposition to sign a motion of no confidence in the party leader. It is suggested they are not trying to attack the Pati but simply the leader because he is leading the Pati the wrong way. They ignore the fact that he has been elected by the majority of the members of Parliament who clearly accept he is still leading them in accordance with the Pati's principles. The actions of the petitioners clearly repudiate the basis of their membership of the Pati and, therefore, their election to Parliament. As such, far from being deprived of their freedom of expression they have deprived the electorate of theirs in Parliament. Instead of being restricted, it is precisely because they are free to express their contrary view by signing such a motion that they are now no longer members of the Pati under whose banner they were elected. Nothing in the rule of conduct or the 1983 act is stopping them from expressing that view. Those provisions simply ensure that, once they have freely exercised their right, they do not continue to speak in Parliament for an electorate whose views they no longer share.

The fundamental right of each petitioner to freedom of expression is enshrined in his right to join or not join any political party he wishes and his right to leave them when their opinions diverge or, if he wishes, for no reason at all. It is not demonstrated by some imagined right to remain in Parliament continuing to speak for an electorate with whose views he no longer agrees and thus effectively restricting their right to express their views in Parliament through the ballot box.

However widely and generously I interpret the words of Chapter 2, I do not feel it can ever produce the meaning suggested by the petitioners.

Mr Coombe's other argument relates to the remaining constitutional provisions to which he also referred in his petition. Briefly his argument starts with article 15 which states that -

"The Legislature shall consist of a single chamber which shall be known as Parliament."

Read with article 16(1) that shows in basic terms what Parliament is and that is amplified in article 17(1). Thus, he points out, the inference can and should be drawn that Parliament is the totality of its members.

Having so defined it, further constitutional provisions show which rights Parliament is expressed to have, those rights (as Parliament consists of its members) or course, attaching to each member.

By article 26(1) Parliament must continue for 4 years from its election unless it is dissolved sooner by an absolute majority of its members etc, 26(2), or by the President on the advice of the Council of Ministers, 26(3).

Therefore, continues Mr Coombe's argument, as Parliament consists of its members, each member equally must retain his seat for 4 years from his election and any procedure that allows him to be removed earlier is contrary to the Constitution.

It seems to me that this ingenious argument is based on a misconception of the purpose and meaning of article 17(1).

Mr Coombe urges that it is a definition of Parliament. He reads it as saying "Parliament shall consist of members" and, from that, says it only consists of its members.

That mis-states the meaning of the article. Far from saying Parliament shall consist of members, it is saying Parliament shall consist of members only who have been elected in a particular way. It does not, in other words, define Parliament but limits the form and method of selection of its members.

Although marginal headings should not be used to help define the words of a section, I am reassured by the fact that the heading for article 17 is "Election of member to Parliament".

It is, of course, true, as Mr Coombe says, that Parliament cannot exist without its members. The life of a Parliament starts with the election of its members. If that does not occur there can be no Parliament but it does not mean that it only consists of its members.

Parliament is the whole legislative body. It includes not only its physical members but the concept of their collective wisdom and decision making power. It is the whole machinery that enables the wish of the majority of the members to be made into laws for the peace, order and good government of the country. Without its members that cannot occur but equally it does not require all its members to achieve that.

That, I think, indicates the other flaw in Mr Coombe's argument. Not only does he need to read article 17(1) as meaning that Parliament consists of its members alone but that it has to have all its members all the time. If it is not extended in that way, he cannot argue that the provisions of section 26(1) must apply to the individual member in the way they apply to Parliament.

That, I would suggest, is untenable. If it were correct it would mean that Parliament could only carry out its business if all its members were present.

The Constitution clearly does not intend that. Its provisions in article 19 relating to quorum clearly envisages Parliament validly conducting its business when some of its members are absent.

Article 43(b) requires a Minister to cease to hold such office if he ceases to be a member of Parliament for any reason other than a dissolution of Parliament and, similarly, article 52 gives the Supreme Court the jurisdiction to hear and determine, inter alia, whether a member of Parliament has vacated his seat or has became disqualified to hold it. Neither articles 43(b) nor 52 suggest a member should only lose his seat on a dissolution of Parliament. On the contrary, article 52 clearly envisages vacation of seats and disqualification.

It seems clear to me that the provisions of the act of 1983 are legislating for matters anticipated in the Constitution. The same arguments apply to the effect of the rule of conduct the Vanuaaku Pati.

Finally Mr Coombe argues, although suggesting it is not his strongest point, that the steps taken to remove the petitioners from Parliament amount to proceeding against them in respect of opinions given or votes cast by them in Parliament and is thus in breach of article 25(1). He suggests that the words "in Parliament" must be given their most liberal meaning and would include signing a motion of no confidence and the deemed resignation from his party.

I cannot accept that is correct. Article 25 is to protect a member of Parliament from legal action arising out of the conduct of his office as a member in Parliament. It does not apply to the rule of conduct or the provisions of the act of 1983.

Thus I do not make any of the declarations sought by the petitioners under 2(b), (c), (d) or (e), 3 or 4. The petitioners must pay the respondents' costs.

Dated at Port Vila, this 10 day of August, 1988.

MR JUSTICE WARD

[Editorial Note: This matter went on appeal and is reported as Sope and Ors v Attorney General and Ors; C.A. 6/88.]