Carlot v Attorney General (No. 1) [1988] VULawRp 14; [1980-1994] Van LR 372 (16 August 1988)

[1980-1994] Van LR 372

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Case No. 116 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:

MAXIME CARLOT
ANDES CARLOT
SERGE VOHOR
ANDREW MOLIENO VUROBARAVU
WILLIE JIMMY
HARRY KARAERU
RENE LUC
PAKOA JOEL MANSALE
LUKE DINI
AMOS ADENG
PAUL TELUKLUK
ALFRED MASENG
THOMPSON KAWAI
ADRIEN MALERE
NAUNUN IARRIS
MARIA CROWBY
SONG KEASIPAI
SAMSON BUE
all being Members of Parliament C/- PO Box 784, Port Vila
Petitioners

AND:

ATTORNEY GENERAL
First Respondent

AND:

ONNYEN TAHI, MP, SPEAKER OF PARLIAMENT,
Government Building, Kumul Highway, Port Vila
Second Respondent

[No. 1]

Coram: Ward J

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

JUDGMENT

[CONSTITUTIONAL LAW - PARLIAMENT - "majority" - "quorum"
- "meeting" - "sitting"]

This is the last of three petitions that have arisen out of the proceedings of an extraordinary session of Parliament held on 21st July 1988. It inevitably traverses some of the same ground as the earlier petitions because the judgment in Case No. 113 of 1988 was delivered after argument in this case. Similarly, evidence has been heard in this action which was lacking in Case No. 114 of 1988 with the result that declarations in this case modify those made in the earlier case.

The petitioners in the present case are all members of the Union of Moderate Parties which is the Opposition in the present Parliament. The first petitioner, Maxime Carlot, is the leader of the Opposition

The extraordinary session of Parliament was summoned to sit on 21st July 1988 and it is agreed by all parties that the necessary quorum of two thirds of the members of Parliament was not achieved. In those circumstances, Parliament is required, by article 19(4) of the Constitution, to meet again three days later at which sitting a simple majority of members will suffice to make a quorum.

Parliament met again on 25th July as the three day period expired on a Sunday. It is common ground that there are 46 members of Parliament and, on the 25th, only 23 members were present including the Speaker.

The House sat subsequently on 26th, 27th and 28th July and, on each of those days, only 23 members were present. None of the petitioners attended Parliament at the sitting on the 21st nor any of the sittings from 25th to 28th.

Section 2(d) of the Members of Parliament (Vacation of Seats) Act, 1983 reads:

"2. A member of Parliament shall vacate his seat therein-

(d) if he is absent from three consecutive sittings of Parliament without having obtained from the Speaker, or in his absence, the Deputy Speaker the permission to be or to remain absent."

On 28th July the Speaker purported to make a declaration to the house that all the petitioners had vacated their seats under section 2(d).

The petitioners urge that Parliament was not quorate on any of the sittings and they were, therefore, unconstitutional, invalid and of no effect. Thus, the petitioners were not absent from three successive sittings or at all. The declarations by the Speaker are invalid for both reasons and, in addition, were made in breach of the rules of natural justice.

On these bases, they seek a declaration from the Court that -

(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 1988.

(c) A quorum of Parliament on:

• (i) 25 July 1988;
• (ii) 26 July 1988;
• (iii) 27 July 1988;
• (iv) 28 July 1988;
  

would have been not less than 24 members attending Parliament in person.

(d) There was no quorum of Parliament on:

• (i) 25 July 1988;
• (ii) 26 July 1988;
• (iii) 27 July 1988;
• (iv) 28 July 1988;
  

(e) The declarations purported to have been made by the second named Respondent, the Speaker, on 28 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 shall 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."

Evidence was presented to the Court both by affidavit and orally touching on quorum at the sittings of Parliament and whether the Speaker's attention had been directed to the lack of quorum sufficiently to invoke the procedure under Standing Order No. 38 which reads:-

"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."

There was surprisingly little dispute in the evidence given by Mr Carlot and the Speaker and I do not need to recite the details. From their evidence I find the facts as follows starting with the 25th July as there is no issue of fact regarding the 21st.

On the 25th, Mr Carlot, as leader of the opposition, handed a letter to the Speaker at 8.15 am - 15 minutes before the sitting was due to commence, and I set it out in full.

"U.M.P. Office Le 25 Julliet 1988
Room No. 8
Bougainville House
Port Vila.
Tel: 3590

Dear Hon. Speaker,

We the undersigned will not be attending Parliament this morning in order to defend democratic processes in Vanuatu. We will not be part of a sitting of Parliament where normal government bills are to be debated in an extraordinary session of Parliament. Government bills should be debated in an ordinary session of Parliament which is now overdue.

Secondly members of Parliament have not receive their bills 10 days prior to the session as provided by the standing orders of Parliament. Thirdly we will not sit in a Parliament in an atmosphere where (members of Parliament) the police force are (sic) unnecessarily used to help process the sitting of a Parliament of a democratic state.

In brief the calling of Parliament for this morning is inconsistent with procedures accorded to Parliamentary democracy.

Mr Speaker, we respectfully remind you that as constitutionally instituted presiding officer of Parliament you are entrusted with the responsibilities of making sure that Parliament adheres to procedures accorded with Parliamentary democracy.

The Constitution provides that the Speaker of Parliament shall act on the President's behalf whenever the occasion arises and as such you are the Guardian of the Constitution of the Republic.

With 23 members of Parliament absent, Parliament cannot possibly proceed with 22 members in session.

We strongly urge you therefore, to cancel the session scheduled for this morning.

Yours faithfully,"

The Speaker agrees he read the letter before he entered the Chamber for the sitting.

Once the sitting commenced, it would seem reasonable to hope that events would be a matter of clear record but that appears to be far from the position as the records are inadequate, incomplete and inaccurate.

However, I am satisfied business started that day with prayers during which the Clerk to Parliament filled in an attendance sheet (Annex 'A' to the further affidavit of the speaker). That showed 23 members present and 23 absent but the Clerk did not feel his duties required him to notify the Speaker and so he did nothing.

Following prayers, the Speaker read the agenda and then requested the Clerk to define "majority". This he did giving his opinion of and distinguishing between absolute, qualified and simple majority. The Court need only consider the latter which was that a simple majority needed only half the members.

That is patently wrong and I have already so declared in Case No. 114 of 1988. Unfortunately the Speaker was willing to accept it and so that day and each succeeding day, business was conducted in a Parliament that quite obviously lacked the quorum necessary under the Constitution.

The Speaker agreed that he asked for the definition from the Clerk because he realised Parliament may not be quorate. Having decided wrongly that a quorum was present, he proceeded with the day's business including a statement in reply to a press statement by the U.M.P. and, after a five minute suspension of the sitting, a declaration under section 2(f) of the 1983 act in relation to five other members of Parliament.

On 26th July, a letter was again handed in by the opposition essentially raising the same complaint. Although the Speaker could not recall whether he first saw it before or after the sitting, I find as a fact that he was aware of it before the sitting that morning.

Therefore, the Speaker realised when he entered the chamber that there would be a problem establishing a quorum but, because there were 23 members, he felt that a quorum was achieved. On each successive day, the same situation occurred and so he never invoked Standing Order No. 38.

At one stage, on 27th, the numbers dropped to 21 members when two failed to return after a short suspension of the sitting. The Speaker did then follow the procedure in Standing Order No . 38 and had to adjourn the house for lack of quorum. He explained that he acted on his own initiative in this matter and clearly accepts that is one way in which his attention can be directed under Standing order No. 38.

In answer to questions by Mr Coombe appearing for the petitioners, he agreed that he addressed his mind to the matter of possible lack of quorum at each sitting but, because he believed 23 members were sufficient, allowed the sitting to continue. I accept on his evidence that each day his attention was directed to the lack of quorum.

As I have already ruled in another case, a quorum required at least 24 members and so, once his attention was so directed, he should have followed Standing Order No. 38 and, on a count confirming the presence of only 23 members, adjourned the House without questions put.

He did not do so and all business conducted by Parliament on the 25th July after the definition of majority was given by the Clerk is invalid as the House was improperly constituted. Similarly on each day thereafter he clearly considered the matter again directing his own attention to quorum and, each time, misinterpreted the rule. At the moment he became aware of the possibility of a lack of quorum, he should have followed Standing order No . 38. As he did not do so, the House was improperly constituted from that moment on each day. I shall return to the consequences of this later in this judgment.

The petition states that, as these were not valid the petitioners have not been absent and are not liable to vacate their seats.

I have already stated in Case No. 114 of 1988 that any business transacted in the proved absence of a quorum would be in breach of the clear intention of the Constitution and would be invalid. I also pointed out that Standing Order No . 38 is the only way in which a lack of quorum can be proved. I am also satisfied the wording of that Standing Order clearly envisages it as a procedure during a sitting of the House. It does not and cannot apply at any time before the sitting commences because, as the quorum is the number present at a sitting, the sitting has to commence to be able to ascertain the number present.

The mandatory requirement that, once a lack of quorum is proved, the Speaker must adjourn Parliament without question put is also clear reference to the procedure during a sitting of Parliament.

Mr Coombe urged that the opening words of Standing Orders No. 38 " If at any time ......." mean that where, as occurred in 25th and 26th, the Speaker's attention is directed to lack of quorum before the sitting, he should not have sat at all and, if he did, the sitting is void ab initio. (In case it should became relevant, I add that I found as a fact, despite his answers to the contrary, the Speaker did appreciate the letters were directing his attention to the question of lack of quorum).

On this point, I feel Mr Coombe's submission is wrong in two ways:

1. I accept that, where a letter is given or complaint made to the Speaker immediately before a sitting, it would fly in the face of common sense to deem that the Speaker is unable to take notice of it but it is and can only be a forewarning of the situation that may occur in the chamber. Until the Speaker has entered the House and commenced the sitting so that he can see the members present he cannot know if there is any possibility of a quorum. He certainly cannot simply announce an adjournment before sitting.

Taking the facts of this case, how could he be sure that all eighteen signatories would indeed stay away from Parliament or, further, that they could speak for the extra five members needed to reach the number of 23 referred to in their letter? Having been so warned, he may feel that, as soon as the sitting starts, the number present suggest a lack of quorum and, if so, he must then follow Standing Order No. 38 to check if any other members are present outside the Chamber. As I have said, if that shows a lack of quorum he must adjourn but a sitting has taken place which will have lasted for at least five minutes.
2. In Case No. 114 of 1988 I used the following words at page 5.

• "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."
  

Having had the opportunity to consider those words again, I do not resile from them. It is only when the lack of numbers has been proved that the House can adjourn. At that stage it would be impossible or impractical to try and ascertain if, and how long, the House had lacked a quorum prior to the count. In a case where the Speaker immediately resorts to Standing Order No. 38, the sitting is and must be deemed to be properly constituted until the contrary is proved. Therefore on each of the days in question there was a valid sitting until the Speaker realised there was a possibility of lack of quorum and failed to follow Standing Order No. 38.

The petitioners admit they were not present in Parliament on any of the days referred to and there was no dispute of the Speaker's evidence that they had no permission to be absent. They were all thus absent from three consecutive sittings of Parliament and must vacate their seats.

It is also argued on behalf of the petitioners that the declarations made by the Speaker on 28th July pursuant to section 2(d) were invalid in the same way as the rest of the business that day.

I confess I am at a loss to understand the meaning and purpose of the Speaker's declaration on 28th July. I can only assume that he was making an announcement that the petitioners seats were now vacant because they had been absent from three consecutive sittings and it is right to say, on behalf of the Speaker, that from the case of Re Vincent Boulekone S/C 90 of 1986, it appears such a declaration has been made in the past.

However the suggestion that a declaration has any effect on the matter and therefore needs to be made at a valid sitting of Parliament has no foundation in the 1983 act.

Section 2(d) is mandatory as was pointed out by Williams J. in Boulekone's case. Once a member is absent from three consecutive sittings without permission, he shall vacate his seat. Unlike section 2(f), no declaration is required and the vacation is of immediate effect. There is no thirty day period and neither does the fact of any legal challenge suspend the vacation of the seat as occurs under section 3 and, in relation to Section 2(f), under section 4.

Therefore, whether the Speaker did or did not make any declaration to the House about this makes no difference to the fact that, on 27th July or, arguably, on 28th July, the petitioners seats had all been vacated and it is a misconception that any further procedural step was necessary.

I pass now to paragraph 34 of the petition which says that section 2(d) is unconstitutional and ultra vires the Parliament of Vanuatu. I have already considered this in Case No. 113 of 1988 and Mr Coombe says that, despite the different wording, he places section 2(d) on exactly the same footing. Since then I have given the judgment in Case No. 113 and I do not find 2(d) is unconstitutional.

The final point raised by the petitioners is the matter of natural justice. By para 35 of the petition, it is said that the declarations by the Speaker on 28th July were in breach of natural justice in that the petitioners were not, prior to the declarations being made, given any opportunity to state their case in opposition to the said declarations being made and there has thus been a breach of the principle of audi alteram partem.

It has long been established that the courts will intervene where a judicial or quasi-judicial decision has failed to observe the rules of natural justice.

I have already stated that the so-called declarations pursuant to Section 2(d) have no legal effect except, perhaps, to act as a public announcement to the House that the seats have become vacant. No judicial decision has been required or made and so questions of breach of natural justice do not, it seems to me, became relevant.

If any question arises as to whether a member has vacated his seat, the Supreme Court has the power to consider it, not the Speaker or Parliament.

Mr Coombe argues, however, that as the petitioners wrote suggesting the sittings were invalid there was a dispute that required a decision and that was a judicial matter. He suggests that, if the Speaker had responded to the petitioners' letter of 25th July, for example, about the lack of 10 days notice (a mistake, incidentally, as only 7 days is required for an extraordinary session under Standing Order No. 14(5)) the petitioners may have discussed it, realised the true position and attended the sitting.

I find that a novel suggestion. The petitioners are all members of Parliament. They know that the Speaker has the duty to ensure that the Standing Orders, practices and procedures of Parliament are respected and observed, and that is, no doubt, why they gave him their letter on 25th. If ever they feel something has happened that is not in accordance with the rules, they can and should raise it on a point of order. The Speaker may or may allow a debate but the person raising it has a right to explain his position and the Speaker must give a ruling. If they disagree with that they may challenge it by written motion.

The petitioners, all of whom were present in Port Vila for the session, could have raised it at the very outset of the session. If they were correct, the Speaker would have had to rearrange the sittings to correct the error.

Instead of taking that course, the petitioners decided to boycott Parliament. I cannot accept that there is any breach of the audi alteram partem principle where the petitioners deliberately fail to avail themselves of clear and recognised remedies.

Instead of raising any matters they saw as irregular by normal Parliamentary means, they chose to embark on a course that they knew would prevent Parliament conducting the business for which they had been summoned.

As Mr Coombe correctly pointed out, they have the right to use the procedure in this way but, having made that decision, it ill behaves them to complain at the inevitable consequence that they have now vacated their seats.

It has been suggested on their behalf that the Government planned to remove them from Parliament by resorting, as Mr Coombe put it, "to the small print in the Constitution". Even if that is right and I do not accept it is demonstrated on the evidence before the Court, the Government could never have anticipated that the Opposition would take a course that would inevitably deprive them of their seats without the Government taking or even needing to take any action.

It is a sad spectacle in any democracy to see a Parliament deprived of an opposition for however short a period it continues but it was the opposition who chose that course. The Government could do nothing more than attend the sittings of the House ready for business. The mistaken ruling on quorum by the Speaker was very unfortunate but it had no effect on this matter. Whilst the Government tried to conduct the business for which Parliament had been summoned, the opposition embarked on a course that led to the loss of their seats as inevitably as night follows day. It was a choice that was theirs alone; it could not have been forced on them by the Government and it had a consequence over which only they had any control. As so often is the case in such political manoeuvring, the only losers are the democratic process and the electorate who are deprived of their voice in Parliament until by-election can be held.

I deal now with the declarations sought by the petitioners. I have already, in Case No. 114 of 1988, made declarations sufficient to deal with 3(a) and 3(b). Declaration 3(e) is, as I have already stated, misconceived and I cannot make it.

As regards declarations 3(c), 3(d), 3(f) and 3(g), it is necessary to consider the consequences of the matters raised a little further.

I have already stated that, as soon as the petitioners had been absent for three consecutive sittings their seats were automatically vacated. The result was that, at the next sitting, the number of members had been reduced to 28 (the five members suspended under section 2(f) are still members whether the declaration under Section 4(1) has been validly made or not). Thus a quorum under article 19(4), still a simple majority, is 15 members.

It is necessary to ascertain which were the three consecutive sittings that the petitioners missed. At first examination those would be the sittings on 21st, 25th and 26th. However, the wording of article 19(4) causes me a little anxiety.

"(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."

The use of the words "shall meet" instead of "shall sit" suggests the sitting three days later is intended to be a new meeting.

Meeting is not defined in the Constitution or Standing Orders but Standing Order No. 12 allows "sessions to include more than one meeting." I assume Parliament intended a meaning by the use of the word "meet" and I do not feel that in the 1983 act, Parliament intended "three consecutive sittings" to include the gap between two meetings even though that is sometimes very short.

I rule that the three consecutive sittings under section 2(d) were the 25th, 26th and 27th July and that the sitting on 28th July, therefore, required a quorum of 15 members.

I make the declarations sought in 3(c) (i) (ii) and (iii) and 3(d) (i) (ii) and (iii) but not in 3(c)(iv) and 3(d) (iv).

I cannot make any declaration in the form of 3(f) and 3(g) because the answer must depend on the date on which the next session commences and the number of seats, if any, vacant at that time.

All business on the 25th July, after the clerk defined majority, and on the 26th and 27th was done in breach of the Constitution and is invalid and of no effect and I respectfully advise the Speaker that I so order under article 52(2).

It follows that Parliamentary business on 28th July was valid.

Each side is to pay its own costs.

Dated at Port Vila, this 16th day of August, 1988.

MR JUSTICE WARD

[Editorial Note: This matter went on appeal and is reported at C.A. 4/88.]