Carlot v Attorney General (No. 2) [1988] VULawRp 21; [1980-1994] Van LR 407 (21 October 1988)

[1980-1994] Van LR 407

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
Appeal Case No. 4 of 1988

MAXIME CARLOT
ANDES CARLOT
SERGE VOHOR
ANDREW MOLIENO VUROBARAVU
WILLIE JIMMY
HARRY KARAERU
RENE LUC
JOEL PAKOA MANSALE
LUKE DINI
AMOS ANDENG
PAUL TELUKLUK
ALFRED MASENG
THOMPSON KAWAI
ADRIEN MALERE
NAUNUN IARRIS
MARIA CROWBY
SONG KEASIPAI
SAMSON BUE
Appellants

AND:

ATTORNEY GENERAL
First Respondent

AND:

ONNEYN TAHI, MP, SPEAKER OF PARLIAMENT
Second Respondent

[No. 2]

Coram: Martin, Cooke and Amet JJ
Mr P Coombe for Appellants
Mr S Hakwa, Attorney General

JUDGMENT

[CONSTITUTIONAL LAW - PARLIAMENT - consideration of "sittings" (S/C 116/88) and "consecutive sittings"]

This is an appeal from the judgment of Ward J on 16th August, 1988 when he held that each of the Appellants had lost his seat in Parliament by operation of Section 2 (d) of the Members of Parliament (Vacation of Seats) Act 1983.

That Section 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 remain absent."

Mr Coombe for the Appellants argues that Section 2 (d) of the Act is unconstitutional and therefore invalid. Article 15 of the Constitution creates Parliament. Article 17 says how Parliament shall be elected, and empowers Parliament itself to determine who is not eligible to stand for election. Article 26 prescribes the life of Parliament. There is no reference in the Constitution to a member of Parliament, once elected, ceasing to be a member. Therefore, he argues provided the member remains eligible, once elected he remains a member for the life of that Parliament.

We disagree. The Constitution intends that the Republic shall be governed by Parliament. Parliament can only function if members attend. There is nothing unconstitutional in a provision designed to ensure that parliament does function, and that a person elected to parliament does what he is elected to do attend Parliament. If he fails to do so, it is reasonable that he should be replaced by somebody who will. There is no procedure laid down in the Constitution for that, so parliament must provide it. It did so in the 1983 Act. The power to unseat in proper circumstances is constitutional. Each individual ground for that may be examined to see whether it is unconstitutional.

Section 2 (d) is designed to ensure attendance by members. That purpose complies with the Constitution because its object is to make parliament effective. Its terms may appear harsh, but if the principle is valid, it is not the business of the Court to interfere with the detail. In our view Section 2 (d) complies with the Constitution and is valid.

It was affirmed in Re Boulekone (90 of 1986) that in these circumstances vacation of the seat occurs automatically by operation of law. Once a member of Parliament has been absent from three consecutive sittings without consent, no further procedural step is required. The seat is vacant.

The 18 Appellants are all members of the Opposition in the present parliament. They determined to boycott its proceedings. The House was summoned to sit on 21st July 1988. For that first sitting Section 19 (4) of the Constitution required a quorum of 2/3 of the members. There was no quorum. Section 19 (4) required parliament to meet again three days later, when a simple majority of members would suffice for a quorum. Because the third day was a Sunday, Parliament met on 25th July.

In the morning of 25th July the Appellants wrote to the Speaker to tell him that they would not attend on that day. The Speaker received and read the letter before he entered the chambers on 25th. Only 23 members attended - exactly half of the members. There was no quorum. On the clearly incorrect advice of the Clerk, the Speaker decided that the House was quorate and proceeded with business. The House reassembled on 26th and 27th July. On each of those days only 23 members attended, and the House was not quorate. On each of those days, the Speaker's attention was drawn to the lack of quorum but he acted on the advice of the Clerk and business proceeded.

Ward J found that each of the Appellants had been absent without consent for three consecutive sittings, on 25th, 26th and 27th July, and were therefore automatically unseated. This had the effect of reducing the number of members to 28, so that a quorum was only 15. Proceedings on 28th July, when again only 23 members attended, were therefore valid.

The Appellants concede that they were absent without consent for three consecutive days when Parliament assembled. It is argued on their behalf that they were not absent from three consecutive "sittings".

The first argument advanced by Mr Coombe in support of this is that there can be no valid "sitting" at all unless there is a quorum. He says that if a sitting is adjourned, for lack of quorum, it cannot become effective until a quorum exists.

Ward J referred to Standing Order 38 and concluded that that Order provides the only means of ascertaining whether or not a quorum exists. For the reasons given in Appeal 3/88 we disagree with that conclusion. But that forms no part of the basis for our decision in this case. He pointed out in his judgment:

".... 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."
"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."

He points out that whatever the Speaker may have been told about members' intentions he cannot know until he enters the House whether they have attended or not, and by the time the Order 38 procedure has been followed".... a sitting has taken place which will have lasted for at least 5 minutes." And he concludes "... 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."

Subject to certain reservations about the point at which a sitting becomes invalid, we agree with and adopt that reasoning. We are encouraged in this by the wording of Article 19 (4) of the Constitution which states what must occur".... if there is no quorum at the first sitting..." This indicates that there is a "sitting" although there may be no quorum. On each day when parliament assembles and the Speaker takes the chair, there is a sitting. The Appellants were absent without consent from sittings on 25th, 26th and 27th July.

The second leg of Mr Coombe's argument is that even if, as we hold, these assemblies constituted "sittings", they were not "consecutive" because consecutive sittings can only occur within the same "meeting". He argues that on each day, when the Speaker decided incorrectly that there was a quorum he should have adjourned the sitting. Assuming that to have been done, he says that because of meanings given to "meeting" and "sitting" in Standing Orders each such adjournment would create a new "meeting" when the House re-assembles; and that each such sitting (if valid) would be the first sitting of a new meeting.

Mr Coombe spent some time reminding us of the golden rule of construction - that words in a statute should be interpreted"... according to their natural and ordinary meaning, without addition or contradiction." We agree entirely. To give the word "consecutive" its natural and ordinary meaning does not lead to any of those undesirable consequences.

A Parliamentary session may be divided into meetings; meetings may be divided into sittings. But we cannot see how sittings can cease to be "consecutive" (using that word in its natural and ordinary sense) simply because they form part of consecutive meetings. If a member is absent from the last sitting of one meeting, and the first two sittings of the next meeting, he has been absent for three consecutive sittings.

It follows that the appeal is dismissed. We confirm the Order of the Court below.

Dated at Port-Vila, this 21st day of October, 1988.

CHIEF JUSTICE, TONGA
PRESIDENT CHIEF JUSTICE, VANUATU
SUPREME COURT JUDGE, PAPUA NEW GUINEA

[Editorial Note: Reference should also be made to S/C 114/88 and C.A. 3/88 This decision is also referred to in C.A. 6/88.]