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In re the President's Referral, President of the Republic of Vanuatu v Attorney-General [1998] VUSC 18; Civil Case 169 of 1997 (5 June 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 169 OF 1997

IN THE MATTER OF:
a referral by the President of a Bill to the opinion of the Supreme Court
pursuant to Arti6(4) of the Constitution.

AND IN THE MATTER OF:
 a Private Member’s Bill for the Ombudsman (Repeal) Act

BETWEEN:

THE PRESIDENT OF THE REPUBLIC OF VANUATU
Petitioner

AND:

THE ATTORNEY GENERAL OF THE REPUBLIC OF VANUATU
Respondent

Coram: Acting Chief Justice Vincent Lunabek J.
Mr Leulua’iali’i Tasi Malifa for the Petitioner
Mr Ishmael Kalsakau for the Respondent

JUDGMENT

By Petition dated 5 December, 1997, the Petitioner, His Excellency Jean Marie Leye Lenelcau, havingidered that a Private Member’s Bill for the Ombudsman (Repeal) Act, is inconsistesistent with a provision of the Constitution, referred the matters to the Supreme Court for its opinion, pursuant to his powers under Article 16(4) of the Constitution of Vanuatu. In effect, Article 16(4) of the Constitution provides:

"If the President considers that the Bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution."

FACTS

On or about Monday 15 November 1997 the Hon. William Edgell, a Member of Parliament tabled the Bill.

On Thursday 20 November 1997 Parliament by 32 votes to 15 votes with 2 abstentions, passed the Bill.

The Bill provides as follows:

"REPUBLIC OF VANUATU

PRIVATE MEMBER’S BILL
FOR
THE OMBUDSMAN (REPEAL) ACT No. of 1997

BEING an Act to repeal the Ombudsman Act No. 14 of 1995

BE IT ENACTED by the President and Parliament as follows:-

REPEAL

4. The Ombudsman Act No. 14 of 1995 is hereby repealed

[5. Removed]

COMMENCEMENT

6. This Act shall come into force on the date of assent."

On or about Thursday 27 November 1997, in accordance with the provisions of Article 16(3) of the Constitution, the Bill was presented to the Petitioner for the purpose of giving his assent.

By written advice dated 3 December 1997 the Petitioner formally advised the Respondent of his intention to refer the Bill to the Supreme Court for its opinion in accordance with Article 16(4) of the Constitution.

GROUNDTHE PTHE PETITION

The Petitioner considers that the Bill is inconsistent with any one or more of the following four provisions of the Conston as follows:

e>

(a) Article 68 which provides as follows:-

"Parliament shall by law give effect to the principles of this chapter."

It is particularised in effect that (i) Article 68 of the Constitution, is a mandatory direction to Parliament; (ii) the Parliament thus exercised its legislative power, under Article 16(1) by enacting the Ombudsman Act No. 14 of 1995, pursuant to the mandatory direction that is Article 68; (iii) The bill which repeals the Ombudsman Act in toto without also enacting a replacement bill for the Ombudsman Act, is therefore inconsistent with Article 68.

In addition and/or alternatively,

(b) Article 66, which provides as follows:-

(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

It is particularised then in effect that (i) the Government Members of Parliament are defendants in their private capacities in Civil Cases 85 and/or 104 of 1997 which were issued by the Ombudsman pursuant to section 30(2) of the Ombudsman Act. In both legal actions the Ombudsman seeks an Order pursuant to s.30(2) "to give effect" to (unfollowed) recommendations that the defendants make restitution of "ex-gratia" payments and/or compensation payments to the people of Vanuatu and (ii) by failing to abstain from the debate and /or vote on the bill the Government Members of Parliament cast their parliament votes in circumstances that were inconsistent with and in breach of their constitutional obligations as leaders pursuant to the provisions of Article 66 of the constitution; and (iii) the bill therefore, by reason of the particulars of its passage, is inconsistent with Article 66.

In addition and/or alternatively,

(c) Article 16(1) of the Constitution, which provides as follows:-

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

It is particularised in effect that (i) on 11 August 1995, the Parliament and the President enacted the Ombudsman Act No. 14 of 1995; and (ii) on 8 July 1997 in purported exercise of its executive power under Article 39(1) the Council of Ministers made Decisions No. 125 on behalf of the Government which provides (inter alia):-

1. That a Bill be drafted and tabled at the August Extraordinary Session of Parliament, to repeal the present Ombudsman Act No. 14 of 1995.

2. That a new Ombudsman Bill be drafted to be tabled at the November Ordinary Session of Parliament.

3. That a petition be draft [sic] to be signed by all Members of Parliament, Leaders of Political parties, President of Provincial Councils and Other persons specified under Article 61(1) of the Constitution, requesting the President to dismiss the Ombudsman from Office.

And (iii) on 30 October 1997, the Supreme Court in Constitutional case No. 114 of 1997 gave a judgment in favour of the Ombudsman by holding, inter alia, that item 3 of Decision No. 125 was "without basis in law and thus unlawful and of no legal or other effect; and that (iv) the Supreme Court decision No. 114 of 1997 was not appealed against and that (v) on or about 15 November 1997, during its introduction, the Bill was explained on the basis that it was repealing the Ombudsman Act because the later "was drafted by the Papua New Guinea Ombudsman’s Commission with directives from the present Vanuatu [sic colon superfluous] to protect the position but not to serve the circumstances of the Vanuatu Government, public and its citizens" and that (vi) the petitioner incorporates and repeats the particulars appearing below in sub-paragraph (d); and that (vii) in the circumstances the Bill was made for ulterior purposes, including:-

In addition and/or alternatively

(d) Article 4(3), which provides as follows:

"Political parties may be formed freely and may contest elections. They shall respect the Constitution and the principles of democracy."

It is particularised that (i) Vanuatu, as a member of the Commonwealth, is a party to both:

- the non legally enforceable 1991 Harare Commonwealth Declaration; and

- the non legally enforceable 1997 Cairns FEMM Action Plan;

and that (iii) Principle 9 of the Harare Declaration and principle 8 of the 1997 Cairns FEMM Action Plan (as detailed and specified in the Petition) are expressions of democratic principle and Parliament’s enactment of the Ombudsman Act, in accordance with Article 68 of the Constitution, is consonant and harmonious with Vanuatu’s international commitment to the said democratic principles;

and that (iv) the bill, in view of its repeal of the Ombudsman Act in toto and in the absence of a replacement Act and/or any one or more of the matters particularised in (a) to (c) above, is contrary to and inconsistent with the spirit of the said democratic principles and as such is therefore inconsistent with Article 4(3) of the Constitution.

F SOUGHT

Wherefore, the Petitioner having considered the Bill to be inconsistent with the provisions o Constitution (as specified herein), by this petition, accordingly, refers the Bill toll to the Supreme Court for its opinion pursuant to Article 16(4) of the Constitution.

It is to be observed that there is no affidavit filed before this Court in support of the Petition.

The Respondent files a sworn affidavit of the Honourable Hamilson Bulu, Attorney General of the Republic of Vanuatu, dated 30th April 1998.

>ISSUES

/p>

The questions to be determined by this Court is twofold:

(1) Is the Bill to r the Ombudsman Act of 1997, unconstitutional in that, it wait was passed without the proper and legitimate exercise of the Constitutional authority conferred under Articles 16(1) and 16(2) of the Constitution. In other words, does the purported repeal Bill of the Ombudsman Act fall outside the mandate of Parliament to make laws for the "peace, order and good government of Vanuatu?"

(2) Is the failure of Parliament to legislate violates the Constitution? Put another way, is the passing of the Repeal Bill, without a replacement Bill, inconsistent with the mandatory provision of Article 68 of the Constitution to give effect to the principles of Chapter 10 of the Constitution?

CONSTITUTION: CON: CONSTRUCTION AND INTERPRETATION

It is to be understood that one of the important aspects of this Constitutional Petition is the question of the conston of the Constitution so a so as to determine the validity or otherwise of the repeal now in dispute.

It is common ground that the Constitution is the Supreme law of the Republic of Vanuatu (Article 2) and the President of the Republic is entitled under Article 16(4) to petition the Supreme Court whenever after the Parliament passes a bill, the President considers such a bill to be inconsistent with a provision of the Constitution.

If the Supreme Court expresses an opinion to the effect that a bill passed by Parliament is inconsistent with a provision of the constitution, the bill shall not be promulgated.

SUBMISOF THOF THE PETITIONER ON THE CONSTITUTIONAL CONSTRUCTION AND INTERPRETATION

In determining whether or not there is breach of Articles 4, 16, 66 and 68 of the Constitutionis submitted on behalf of t of the Petitioner/President that this Court considers whether there is any legitimate purpose to the Ombudsman (Repeal) Bill 1997, and whether there is a rational relationship between it and the objective it is designed to regulate, that is to defeat the very purpose of Chapter 9, Part II and Chapter 10 of the Constitution relating to the Ombudsman and the leadership Code respectively. Only by that process of construction and scrutiny can it be safely ascertained, first that these constitutional safeguards are complied with, and secondly, that this Court can for itself, test the scrutiny of this law.

This approach is traceable to the United States Supreme Court judgments under the Equal Protection Clause (Stone et al, Constitutional Law 495-528 (1970) and in Dandridge v. Williams [1878] USSC 22; 397 US 471 (1990) and in San Antonio Independent School District v. Rodriguez 411 US.1 (1971). In Dandridge v. Williams, it was held that " In the economics and social welfare, a state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If, the classification has some reasonable basis, it does not offend the Constitution." And in Rodriguez, that approach was affirmed which supports the application of the traditional standard of review, which requires only that the state’s system be shown to have some rational relationship to legitimate state purposes.

It is submitted for the Petitioner that the relevance of those persuasive authorities lies in assisting this Court by way of authoritative persuasion to determine what legitimate purpose or rational basis was it envisaged by the respondent in seeking to pass the Repeal Bill. In that regard and even if such a purpose is legitimate or bears a rational basis to the object of the repeal itself, it is respectfully submitted that such purpose must be further subjected to scrutiny of the supremacy of the Constitution under Article 2 and 53.

It is further advanced that the approach is similar to the powerful holding of McCulloch v. Maryland adopted by this Court in Virelala’s Case. That approach is also recognised by the Court of Appeal of the Cook Islands in Karika v. Clarke (1985) LRC (Court) 732.

SUBMN OF THOF THE RESPONDENT ON THE CONSTITUTIONAL CONSTRUCTION AND INTERPRETATION

The Respondent refers the Case of the President of the Republic of Vanuatu v. The Attorneeral before the Court [urt [Vanuatu Law Reports at 587], in which his Lordship d’Imécourt CJ states (inter alia):-

"Article 16(1) permitting Parliament to make laws for the peace, order and good Government of Vanuatu is subordinate to Article 16(4) that such laws can only be promulgated if the Supreme Court does not consider it inconsistent with a provision of the Constitution, once the matter is referred to the Supreme Court for its opinion under Article 16(4)."

His Lordship continued to say that:

"... there is no question of entering into an inquiry as to whether or not the proposed Acts are in fact "for the peace, order and good Government of Vanuatu, that must be a question in the sole discretion of Parliament . The sole question for the determination of the Court is, does the proposed Act (Bills) or any parts thereof offend the Constitution, and if so, in respect of which Article and to what extent."

Further his Lordship reiterated:

"We must be reminded that it is a Constitution we are construing and it should be construed with all the generality which the words used admit." (at p.585)

His Lordship goes on to say that:

"Where those cases assist this Court considerably, in formulating this approach to constitutional applications; namely, that great caution will be exercised by the Supreme Court of Vanuatu to ensure that the safeguards guaranteed under the Constitution are not abused and that its value is not diminished by applications to the Supreme Court that are frivolous, vexatious or an abuse of the process of the Court."

COURT CONATDERATIONS

Accepting these words of caution and bearing them in mind in this case, I have to reiterate the two constitutional limitations to the exercise of Parliament&#1power under Article 16le 16 of the Constitution in the Virelala’s case which is now extended to a Bill in this case:

"Firstly, the Court will declare an Act, a Bill or a provision of an Act, or of a Bill unconstitutional when it infringes one of the fundamental rights and freedoms guaranteed and protected under Article 5 of the Constitution... (and)

Secondly, the Court will intervene to sanction an Act, a Bill or a provision of a Bill or of an Act of Parliament, by declaring it unconstitutional in the circumstances where there is an express/explicit constitutional prohibition provision but, Parliament, nevertheless legislates to that prohibited effect in contravention of the constitutional express prohibition provision."

After referring to these words of caution on the constitutional construction and the limitations on Article 16 of the Constitution, it has to be stated clearly that the rational basis test as it operates today imposes on the person challenging the Act or the Bill of Parliament, and in this instant case, the Petitioner/President, the burden of persuading the Court of either of two points:-

(a) that the law or the proposed law (repeal Bill) does not serve a "legitimate" purpose; or

(b) that the law or the proposed law (Repeal Bill) is a means which is "not rationally related" to that purpose.

In my judgment, I share the view that:

"An Act of the legislature is presumed to be valid and will not be declared unconstitutional unless it clearly and undoubtedly contravenes some constitutional provision." State ex rel. Eagleton v. McQueen, 378 SW rd 449 (Mo. banc 1964).

Equally, a proposed Act (Bill) of the legislature is presumed to be valid and will not be declared unconstitutional unless by virtue of the exercise of Article 16(4) of the Constitution, the Supreme Court is of the opinion that the Bill contravenes some constitutional provision, and if so, then it will not be promulgated.

Therefore, because the burden of persuading the Court of the unconstitutionality of the proposed law (Repeal Bill) is on the Challenger/Petitioner, it is to be understood that the proposed law (Repeal Bill) comes to the Court with a presumption of its being constitutional. So in order to succeed, the Petitioner must rebut this presumption.

p>SUBMISSIONS ON B ON BEHALF OF THE PETITIONER ON GROUND (c) OF THE PETITION

It is suggested on behalf of the Petitioner to begin with Article 16(1), ground (c) titled, Poo make laws. All other grou grounds of the Petition, though separately stated, shall be taken together. These are Articles 4, 66, and 68.

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ARTICLE 16 - POW- POWER TO MAKE LAWS

Under ground (c) titled Article 16 - Power to Make Laws - the Petitioner grounded his submissions on (A) Ulterior Motives/Abuse of powers by Parliament and (B) urge upon the Court to review the internal Proceedings of Parliament since the Repeal Bill of the Ombudsman Act is not a Government Bill but a Private Member’s Bill aimed at the person of the holder of the Office of the Ombudsman.

(A) Theowinlowing detailed submissions were made for the Petitioner on the basis of ulterior motives/abuses of powers by Parliament:-

1. It is submitted for the Petitioner that the purported repeal of the Ombudsman Act does not fall within the constitutional mandate given to Parliament to make laws for the "peace, order and good government of Vanuatu". It is said, the real reasons behind the repeal have nothing to do with the "peace, order and good government of Vanuatu". Rather, the facts reveal individual members of the legislature using the mandate of the collective responsibility of Parliament to protect themselves and for their own personal reasons and ulterior motives. It is submitted this constitutes abuse of that mandate.

2. It is said that what had transpired in the course of seeking repeal of the Act was that all the Respondents were most unhappy with the work of the Ombudsman. It is advanced for the Petitioner that as evident under ground b, Article 66, the various Respondents named are all subject to enquiries a to ‘ex gratia’ payments to be restituted and are currently under litigation on that issue. In short, the repeal is for ulterior motives. The "peace, order and good Government of Vanuatu" is a disguise.

3. It is put that beginning in July, 1997 with the Council of Ministers requesting the President to dismiss the Ombudsman from Office which was held unconstitutional by this Court in the Ombudsman v. the National Government, the Respondents then, on or about November 15, 1997 sought to repeal the Act for the reason that it "was drafted... with directives from the present Vanuatu Ombudsman to protect the position but not to serve the circumstances of the Vanuatu Government, public and its citizens".

4. In the first place, it was argued, that view ignores that the Act was debated, passed and approved by parliament under Parliamentary practice and procedures as evident in Re. Constitution of Vanuatu, President v. Attorney General (1993) 1 LRC at 1551. Following that, it was asserted to by His Excellency the President of the Republic of Vanuatu and it became an Act of the Parliament of the Republic of Vanuatu and therefore a law for the country. Even if it is correct it was drafted by someone else for some specific purpose, once the Bill was passed by Parliament and asserted to, that is the end of the matter. That is the exercise of Parliament’s function under Article 16. It follows the Act gave mandatory effect to the charter principles declared under Article 68.

5. The ulterior motives behind the Repeal, seek to diffuse the effectiveness and ability of the Ombudsman to operate under law and further seek to attack the integrity of the Ombudsman professionally and personally. It is submitted the Respondents were motivated by malice and abuse of their office in seeking the repeal. In that regard, it is put for the petitioner that, the Respondents personal actions tantamounts to and are comparable to the tort of misfeasance in public office as found in Vermeulen v. Attorney General & other (1986) LRC (Const.) 786.

In the Vermeulen case, the Western Samoan Supreme Court held the Government, Cabinet and the Prime Minister acted with malice and in abuse of public office in refusing to appoint the Plaintiff to the post of Director General of Health. It is said that the Supreme Court acted upon irrefutable affidavit evidence that all Respondents were motivated by malice and for their own personal reasons refused to appoint the applicant, who was most qualified and experience for the job, but instead wanted to appoint a ‘Samoan’ to the post, notwithstanding that no one at the time had the qualifications or experience to hold that post.

6. It is further conceded on behalf of the Petitioner that the Vermeulen Case is one of tort specifically dealing with the tort of abuse of public office, it is respectfully submitted that its relevance here lies:

First in the facts that all defendants like the Respondents here are public officials and Members of Cabinet and Parliament and therefore must act with no personal motivation but for the welfare of the Department and the nation;

Secondly, the offices they hold, like the facts here are public offices accountable, answerable and responsible to the public, the people;

Thirdly, those same facts are similar and identical here as showing the Respondents were motivated by malice, ill-will and abuse of the Constitutional power of Parliament to oust and remove the Ombudsman from the job she is doing for no other reason but that she is doing her job; and

Fourthly, those functions, like in this case are constitutionally, conferred and guided that they must be exercised by no other authority and for no other reason but as mandated by the Constitution.

7. It is said that the abuse malice and ill-will identified in Vermeulen are exactly those that are found in this, as this Court expressly recorded in Virelala v. Ombudsman (unreported), SC decision, September 1997, at p.27) and in the case of Ombudsman v. Attorney General & National Government (Unreported, SC decision, July 1997, p.6) His Honour Judge Saksak J. declared:

"[Article 39(1)] states in the clearest terms that (the) executive power shall only be exercised within the ambit of the Constitution or a law... Any determination can only be made of Article 39(1) of the Constitution, the Prime Minister and Council of Ministers are not above the law or the Constitution. The same goes for everyone... in this country."

It is further put for the Petitioner that the (same) Respondents are acting not only above the law, but are doing so with clear knowledge of that abuse and illegality. Therefore, that abuse bears enormous weight into their motives. This Court, it is said, had ruled twice against them (in Virelala & Ombudsman Cases) in precisely the same fact situation bearing directly on the same campaign they have been involved in concerning the same Ombudsman Reports. But they are not deterred. And this is the essence of the abuse ... they assume they have the political power, therefore it is unchecked. They are openly utilising the democratic authority conferred on them by the peace, order and good Government of the country, to protect themselves. It is then asked for the Petitioner, how much more can this abuse, this usurpation of the constitutional authority, be tolerated? This Court has spoken twice. That is the check. Indeed, it is put that that is the constitutional check tied into the separation of powers upon which the Constitution is structured. Their remedies lies in challenging these Ombudsman Reports; not and never in the unlawful use of the authority of the people for their own good. Absent clear authority of law, there is clear commission of a criminal offence actionable by the police, it is alleged on behalf of the Petitioner.

The famous Watergate case, Nixon v. US [1974] USSC 159; 418 US 683 (1973) cited in Stone et al Constitutional Law 398 at 399 (1986) was referred to this Court. In that case, the US Supreme Court rejected President’s Nixon claim for executive privilege that sought to withhold tape recording of evidence of the Watergate burglary.

8. It is contended for the Petitioner that in the case of Virelala v. The Ombudsman (referred to earlier) this Court referred to abuse in the political sense where "the extravagant use of legislative power presented a political issue which require a political response, as long as it was within the power, it could not be invalidated by the Court". In this case, it is submitted, not only is the repeal outside that legislative authority and therefore not within the limits identified by this Court, but more dramatically, it is abuse not even susceptible to a political remedy, as for example, an election. Rather, it is an abuse that falls squarely within the four corners of the Constitution, and embraces the jurisdiction of this Court in safeguard of that supreme foundational document.

9. It is said for the Petitioner that the issue is better illustrated in Re. President’s reference of the Constitution of Vanuatu; President v Attorney General [1993] 1 L.R.C (Const.) 14). The case relates to the same exercise of Presidential function under Article 16 (4) of the constitution of Vanuatu concerning the Broadcasting of Television Bill 1992, the Business Licence (Amendment) Bill 1992 and the Land Acquisition Bill 1992, that certain clauses in these Bills violated the constitution and therefore the President withheld assent and referred the Bills under Article 16(4) for an opinion of the Supreme Court.

In the case of President v Attorney General (1993) it was argued for the Respondent that Parliament’s power to make laws is unfettered, save for the laws being for the peace, order and good government of Vanuatu. Such a power authorises the utmost discretion, of enactment for the attainment of the objects, and a court would not enquire whether any particular enactment does in fact promote peace, order and good government of the country. That being the case, laws shall be valid unless inconsistent with the constitution.

His Lordship D’Imecourt CJ giving judgement of this court did not agree with the argument. His Lordship gave a full assessment of the power under Article 16 and in particular, answers the question of the limits on the Parliamentary constitutional function. These are itemised as follows:-

If Parliament’s power to make law is unfettered, then, all laws are valid unless inconsistent with the constitution. According to His Lordship D’Imecourt CJ, "If this submission is correct, then Act 16(4) is devoid of any meaning and has no place in this Constitution because it presupposes that the Act is valid unless inconsistent, whereas Art. 16(4) stipulates that the "bill shall not be promulgated if the Supreme Court considers it inconsistent..." page 155-156 1h-a.

Subject to the legislature’s power to make laws that are intra vires their enabling legislation, the words of the statute to make laws for the ‘peace, order and good government of a country are apt to ‘authorise the utmost discretion of enactment for the attainment of the object pointed to ... page 157 1c-d.

Such words-peace, order and good government ‘do not authorise alteration of the constitution and ‘that the court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government .... page 157 i.d.

There is no need to enter into an inquiry as to whether or not the proposed Acts are in fact for the ‘peace, order and good government of Vanuatu’. That is a question in the sole discretion of Parliament ‘page 157 1e-f.

The sole issue in the case is ‘does the proposed Bills or any parts thereof offend the constitution, and if so, in respect of which Article and to what extent? page 157 1f.

1. And after a full and thorough assessment of that issue and thorough citation of cases and authorities, the court declared certain clauses of the Broadcasting and Television Bill, as well as the Business Licences (Amendment) Bill unconstitutional as infringing the fundamental rights provisions of Article 5 & 7 of the Constitution. It follows these Bills were amended accordingly. The Land Acquisition Bill was held not unconstitutional.

2. In total and from these authorities, it is submitted for the Petitioner that not only had Parliament usurp the function prescribed by Article 16(1), but that it had done so in complete disregard of the very purpose of law-making: for the peace, order and good government of the country. And worse, it is submitted further for the Petitioner, the Respondents had so acted despite the clear ruling of this court in Virelala, Ombudsman and President Timakata v Attorney General cases. It is also stated for the Petitioner that any other Parliament fully aware, concern and amenable to its role for the welfare of the country and the people would not have acted like this. And within the separation of powers, there is respect of each organ of the Republic by the other as to maintain each’s integrity of independence for the common good. Sadly, it is put for the Petitioner, is not happening here.

The second categories of submissions made on behalf of the Petitioner rested on the basis that the Repeal Bill was a Private Member’s Bill but not a Government Bill, it is urged upon this court to review the internal Proceedings of Parliament.

(B) The followinlowing detailed submissions were made for the Petitioner to the following effect:-

1. The repeal now at issue is not even a Government Bill, but a Private rs Bill seeking to outo out law accountability, a major and important aspect of the Executive arm of the Republic. And the question invariably arises: is this permissible? Did the Framers of the Constitution of Vanuatu intend that a private member’s bill is allowable to cut into the Executive Government, without even a replacement Act to give method, process and procedures of accountability as mandated in Chapter 9 Part II (Ombudsman) and Chapter 10 (Leadership Code)?

It is contended for the Petitioner that these questions are important because, Government, who is of course responsible for the Executive arm of the Republic, can be the only authority to decide that part of its Executive Administration needs review that a repeal law is needed; and not a private member. And this is, of course, because of the democratic ideal of responsible government guaranteed by Article 43 of the Constitution. That Article provides "(1) The council of Ministers shall be collectively responsible to Parliament". In constitutional terms, that responsibility connotes a "Government connotes conducted in accordance to law, the basic rule being that the organs of government (which of course includes the Executive] must... operate through the law". Wade & Philips, Constitutional & Administrative Law, 9th (ed.) 98 & 90 (1977). And in Parliament when that government, cabinet, explains its policies and executive decisions, it is collective responsibility accountable to the people by virtue of representative democracy under chapter 4, Article 17 of the Constitution (see C below).

In explaining this responsibility, Wade & Philips, states (pages 175-176), that "private member’s bill is used for a variety of purposes including matters of social reform (for example, abortion and divorce law reform) on which public opinion may be too sharply divided for the government to wish to make initiative, matters of special interest to minority groups (for example, animal welfare) and topics of law reform which may be useful but have too low a priority to find a place in the government’s programme...".

It is argued for the Petitioner that nothing here mentions a private member’s bill to repeal a law "giving effect" to a Constitutional command for administration of part of the Executive organ of the Republic.

It is therefore submitted that a repeal seeking outs of a major administrative arm of the Executive Government must not only be initiated as any other responsible government bill, but must be made for the "good government" of the country. Here, there is nothing evident to show that is the purpose of this repeal. As shown in the statement of authors Wade & Phillips, a bill of this nature is not one for a private member. The question therefore is, why was it initiated, and subsequently passed?

It is submitted that to understand fully what is behind this Private Member’s Bill, it is important to go inside the "internal proceedings of Parliament" and review what actually happened, so that this Court is fully aware and thereby ascertain whether or not there is breach of the Constitution. In making that proposition, it is suggested for the Petitioner that, they are mindful of the separation of powers that provides for independence of each organs of the Republic and therefore not to interfere with that independence. But, it is to review whether or not the Respondents, Parliament, acted in breach of the Constitution in passing and enacting this repeal.

2. That proposition is founded on the following authorities: Cormack v. Cope (1974) 131 CLR 432 Fotofili & Others v. Siale[1987] TOPC 2; (1988) LRC (Const.) 102 (CA Tonga), Smith v. Mutasa (1990) LRC 87, Robati Pupuki v. Privileges Standing Committee of the Parliament of Cook Islands (Unreported, CA decision, Cook Islands) and the Minister of Police v. Eakalagi v. et al (unreported CA decision, Tonga).

The Cormack decision, as are the cases referred to above, are all cited with approval in the Eakalagi case. Their combined authoritative judgment, is that,

"There is no Parliament privilege which can stand in the way of this Court’s right and duty to ensure that the Constitutionally provided methods of law making are observed." Eakalagi at p.9-10.

3. In the Eakalagi’s case, it was held that where Parliament, though claiming to pursue its privileges, acts unconstitutionally, it must be proper for the Court to intervene.

It is also put that this was the whole basis of the US v. Nixon case. That the US Supreme Court can look into the claim of Presidential privilege and determine its validity in withholding and refusing production of tape evidence required for a criminal trial.

It is submitted that these are powerful authorities in support that this Court can look into what happen in the repeal debates in order to confirm that it breaches the Constitution. A copy of the Record of the Debate on the Repeal is attached.

4. It is said that from this Record the only reasons why those who sought the repeal pushed for it is that they did not like the person holding the office and that the Ombudsman reports are criticising leaders in Parliament. Mention was even made that the Ombudsman herself "is not from Vanuatu (and) therefore is abusing her power". Some commented that the Ombudsman Act gives excessive powers to the Ombudsman. One even mentioned that Parliament must protect them and were concerned about the Ombudsman reports, for example, the sale of passports, where it is not good for the image of the country.

It is also said that of those who spoke in support of the Ombudsman Act, they defended it as an integral part of constitutional government that cannot be repealed without an amendment act in replacement. One spoke of "responsibility that goes with democracy". There is expectancy from the people for Parliament to perform in the best interest of the people. Another states, "we want transparency and accountability in our Government". While one more asks, "Is the Government trying to hide behind a private member bill to address an issue which is very crucial to the nation? ... That is irresponsible". And the last member to speak on the issue, states Government and the Executive have an obligation under the Constitution and that the holder of the Office is just doing her job.

It is put that when these are considered, it is clear there is no valid, justifiable reason as to why the repeal was necessary or that the Respondents were acting for the "good Government" of the country in passing it. It is advanced for the Petitioner that those who supported the bill were not only discriminating and racist as to leave no doubt of their motives and intentions. That they would attack the very person of the holder of the Office of the Ombudsman speaks volume of their own integrity as law makers. More importantly, the authorities cited in support of the breach of Article 16 are emphatic that any law passed must not aimed at any individual or single person, but must be directed for the generality of the citizenry (see Kanilorea v. Attorney General below). In addition, no thorough debate was undertaken for any law to replace the Act, or to give effect to the requirement of Articles 68 and 66. It is said that it seems clear that all they wanted was to pass the repeal. In these circumstances it confirmed the arguments submitted here that the repeal was not for the "peace, order and good Government of Vanuatu or to "give effect to the mandatory command of Article 68, but merely, of some Respondents personal good.

p>SUBMISSIONS OF T OF THE RESPONDENT ON GROUND (c) OF THE PETITION - POWER OF PARLIAMENT TO MAKE LAWS

The Respondent makes the following submissions in that regard.

The Petitioner submits to the Court that the Ombudsman’s Repeal Bill as has been approved by the Parliament was made for ulterior purposes and as a consequence is inconsistent with and/or beyond the limits of Parliament’s legislative power as circumscribed by article 16(1).

Article 16(1) provides that "Parliament shall make laws for the peace, order and good government of Vanuatu."

In The President v. Attorney General (1992) VLR at p.587. His Lordship d’Imecourt CJ said:

"...there is no question of entering into an inquiry as to whether or not the proposed Acts are in fact for ‘the peace, order and good government of Vanuatu’, that must be in the sole discretion of the Parliament. The sole question for determination of the Court is does the proposed Act [Ombudsman Repeal Bill] or any parts thereof offend the Constitution, and if so, in respect of which Article and to what extent."

The particulars in paragraph (c) of the Petition are thus irrelevant in so far as they determine matters occurring outside the inner walls of Parliament.

on. Willie Jimm Jimmy and Ors v. The Speaker, (Civil Case No. 126 of 1996 at p.13).

Civil Case No. 114 of 1997 concerned a request to the President, not an act of termination and in any event was not a matter that was dealt with as pursuant to the "internal proceedings of Parliament".

Whether the Government did or did not or, still has no intention to appeal is an irrelevant consideration. But Decision No. 125 of the Council of Ministers, if to be used at all by application to this case, indicates the Executive’s decision to refer the matter of the Ombudsman’s Act to Parliament to determine the complete, exclusive and exhaustive intention of the Legislature but there was an intention by the Executive to table a replacement Bill.

Civil Case No. 114 also concerns the actions of the Executive whereas the Repeal Bill’s passage into Parliament was through a Private Member.

The Court should not be invited to question the nature of the passage of the Bill into and through the House. (Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 KB 737 and Ellen Street Estate Ltd v. Minister of Health (1934) 1 KB 590).

<

"CIRCUMSTANMSTANCES" THAT ARE INCONSISTENT

The Petitioner has also referred to circumstances that are inconsistent with the Constitution. (See subparagraph (ii) of paragraph (b) and subparagraph (v)(iii) of paragraph of (c)).

We say that the circumstances as pleaded by the Petitioner in the Petition do not mandate the Supreme Court to inquire into the internal proceedings of Parliament.

The Court may only inquire into the proceedings of Parliament if it is clearly mandated to do so, the absence of which mandate would entitle the Court to apply the common law. Fotofili and Others v. Ipeni Siale [1987] SPLR at p.348-49 and article 95 of the Constitution.

Parliament being given the mandate by Article 21(5) of the Constitution to make its own rules of procedure, the Court can therefore only look at the Parliamentary role to satisfy itself that the Bill was repealed.

COURT CONATDERATIONS ON GROUND (c) OF THE PETITION - POWERS TO MAKE LAWS - ARTICLE 16

It is common ground that Parliament derives its powers to make laws from Article 16(1) of the Constitution which provides:-

Article 16

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

(2) Parliament shall make laws by passing Bills introduced either by one or more members or by the Prime Minister or a Minister.

(3) When a Bill has been passed by Parliament it shall be presented to the President of the Republic who shall assent to it within 2 weeks.

(4) If the President considers that the Bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution."

Under ground (c) of the Petition, the Petitioner considers that the Repeal Bill of the Ombudsman Act 1997 is inconsistent with and/or beyond the limits of Parliament’s legislative power under Articles 16(1) and 16(2) of the Constitution.

The contention is based on the submission that the purported repeal of the Act has nothing to do with the "peace, order and good government of Vanuatu." Rather it is for ulterior motives and constitutes an abuse of the power of Parliament to make laws under Article 16(1) of the Constitution.

In my view, this submission cannot stand and is, thus, rejected.

This Court may not, in passing upon the validity of an Act or proposed law, enquire into the motives of Parliament because the validity of legislation or a proposed law is not to be determined by the motives or the "ultimate end" of a statute or proposed law.

In the case of the President of the Republic of Vanuatu v. Attorney General (1993) V.L.R. 59, His Lordship d’Imecourt CJ says this:

"In the cause of interpreting the constitutionality of these present Bills, there is no question of entering into an inquiry as to whether or not the proposed Acts are in fact ‘for the peace, order and good Government of Vanuatu’, that must be a question in the sole discretion of Parliament."

In R. v. Barger [1908] HCA 43; (1908) 6 C.L.R. 41, all justices agreed that, when a legislative power was granted, neither the indirect effect of its exercise nor the motive or object of the legislative in exercising it were relevant to the question of the validity of its exercise in a particular given case (at pp 66-67-89-90-118).

On that basis, I am of the opinion that if the legislation enacted or the Bill has some reasonable relation to the exercise of... (a power) conferred by the constitution, it cannot be invalidated because of the supposed motives which induced it.

In the Attorney General of the Republic of Vanuatu (Appellant) v. President Karlomoana Timakata (Respondent) - Appeal Case No. 1 vol. 1993, CA, V.L.R. 679, it is stated that:

"Subject of course to the Constitution, the Parliament of Vanuatu is given plenary powers by Article 16(1) of the Constitution and in the exercise of those powers it may repeal or alter existing laws: See Article 95 of the Constitution." (at p.682).

Applying this decision of the Court of Appeal (Vanuatu) upon which I am bound, it is my view that the Repeal Bill of the Ombudsman Act has some reasonable relation to the exercise of the power of Parliament under Article 16(1) of the Constitution, it cannot be invalidated because of the supposed ulterior motives which induced it.

It is also submitted that the Respondents were motivated by malice and abuse of their office in seeking the repeal and their personal actions tantamount to and are comparable to the tort of misfeasance in public office as found in Vermeulen v. Attorney General & Others (1986) L.R.C. (Cont.) 786.

That submission is also rejected. The Vermeulen case is about the action of the executive branch of the Government in the Western Samoan [Government, Cabinet and the Prime Minister) which acted with malice and in abuse of public office in refusing to appoint the Plaintiff to the post of Director General of Health. The case of Vermeulen has nothing to do with the question of constitutional validity of a proposed law such as the one which is at issue in this instant Constitutional Petition. Similarly, the case of Ombudsman v. Attorney General & National Government (unreported, S.C. decision, July 1997) concerns the action of the Executive Branch of the Government, whereas, here, in this case, we are dealing with the question of constitutional validity of a proposed law (Repeal Bill) as pursuant to the proceedings of the Legislative Branch of the Government. Similar observations are equally applicable to the famous Watergate case, Nixon v. US [1974] USSC 159; 418 US 683 (1973) referred to this Court.

The questions of abuse of powers raised on behalf of the Petitioner, it is for the people and Parliament. In the exercise of its functions under Article 16(1) of the Constitution, Parliament may commit possible abuse of powers. However, that possible abuse of powers is no reason in Vanuatu law for limiting the language of Legislative power contained in the Constitution. It has to be understood that the extravagant use of legislative power presented a political issue, which required a political response: as long as it was within power, it could not be invalidated by the Court. This means that if the representatives of the people of Vanuatu (Members of Parliament) in Parliament use their national powers to pass laws against the interest of the people of Vanuatu considered as such, it is within the power of the people themselves to resort and reverse what may be done. No protection of this Court in such a case is necessary and proper. (see Jean Paul Virelala & Others v. the Ombudsman, S.C. judgment - Civil Case No. 4 of 1997, September 1996, unreported) (at p.27-28).

What the Court can only do is to determine whether the power exists, and if so, whether Parliament has in fact and substance acted within that power. There is no doubt that it is within the parliamentary power to repeal an Act under Article 16(1) of the Constitution on the basis of the decision of the Court of Appeal (Vanuatu) in Re the Attorney General v. President Karlomoana Timakata, Appeal Case No. 1 of 1993 referred to earlier.

Further, as I mentioned earlier on, the issue of motives and objects of the Legislature are not relevant to the question of the constitutional validity of an Act or a proposed law. Caution or judicial self-restrain ought to be the rule for the Courts in this type of exercise.

In effect, with the exception of the two (2) constitutional limitations stated in the case of Virelala v. The Ombudsman (referred to above) and which are again referred to in this case and extended and applied to a proposed law (Bill), I am of opinion that the interference by the Court, would involve the Court in the political function of deciding in what degree Parliament is justified in using its powers under Art. 16(1) of the Constitution, bringing about a conflict with Parliament.

The difficulty in this type of exercise can be understood from the point of view of a layman who may well wonder how the Court can distinguish between such concepts as purpose, intent, or motive, in determining how far the Court may go in trying to decide what was in a legislature’s mind at the time it passed a law or a proposed law.

The substance of the second category of arguments of the Petitioner under ground (c) rises 3 main questions which were summarised as follow:-

(1) The Repeal Bill of the Ombudsman Act is not a Government Bill but a Private Member’s Bill.

(2) The Court is urged upon to enquire into "the internal proceedings of Parliament" and review what actually happened.

(3) The repeal Bill aimed at the very person of the holder of the Office of the Ombudsman and that the Ombudsman reports are criticising leaders in Parliament.

Parliament derives its powers to make laws from Article 16(1) of the Constitution. And how laws are made?

Article 16(2) of the Constitution provides:

"Parliament shall make laws by passing bills introduced either by one or more members or by the Prime Minister or a Minister." (emphasis added)

By this Article 16(2), a Member of Parliament can introduce a bill before the Parliament and if passed by the Parliament and assented to by his Excellency the President of the Republic under Article 16(3) of the Constitution, that Bill, which is a Private Member’s Bill, will become of course a law of the Republic.

With the exception of Article 25(1) of the Constitution in relation to Bill of Budget, there is no provision in Vanuatu Constitution of 1980 which says that Private Member’s Bill will be used for a variety of purposes but cannot be used in other areas of life of this Republic since those are only reserved for the Government Bill.

It is emphatically the function of Parliament to make laws by passing Bills [Art. 16(2)]. In my judgment, it does not matter whether the Bill is a Private Member’s Bill or a Government Bill.

In essence, the Constitution does not create a "reserved domain" in which Parliament will legislate only by passing bills exclusively introduced by one or more members of Parliament ["Private Members’ Bills"] and another "reserved domain" in which Parliament will legislate by passing bills exclusively introduced by the Prime Minister or a Minister ["Government Bills"].

In this instant case, the submission that the Repeal Bill of the Ombudsman Act is not a Government Bill but a Private Member’s Bill is tantamount to a question of policy. It is not for this or any Court to prescribe policy or to seek to give effect to any views or opinions upon policy. Such questions have to be used in Parliament and before the people. They are not for the Court to determine or even to consider and I so rule.

As to submission (3) that the Repeal Bill aimed at the very person of the holder of the Office of the Ombudsman and that the reports of Ombudsman criticised the leaders in Parliament, it has to be stated clearly that these must and can only be gathered from the words of the Private Member’s Bill, as expressing the intention of Parliament to that very effect.

The very Bill at issue, here, provides as follows:

"REPUBLIC OF VANUATU

PRIVATE MEMBERS BILL
FOR
THE OMBUDSMAN (REPEAL) ACT No. OF 1997

Being an Act to repeal the Ombudsman Act No. 14 of 1995

BE IT ENACTED by the President and Parliament as follows:

REPEAL

4. The Ombudsman Act No. 14 of 1995 is hereby repealed.

[5. Removed]

Commencement.

6. This Act shall come into force on the date of assent."

By perusing the words of the Repeal Bill of the Ombudsman Act, there is no express provision in the Bill which aimed at the very person of the holder of the Office of the Ombudsman. There is no provision either that expressly made specific reference to the facts that the Ombudsman reports are criticising leaders in Parliament.

On that basis, I share the view that the words of a statute (or a proposed law), when applied to the state of facts with which the Bill or statute deals, speak for themselves. A statute or bill may be based upon the report of a Committee or of many Committees, or upon cabinet memoranda, or upon a resolution of a political party or of a public meeting, or upon an article in a newspaper. The intention of Parliament as expressed in the statute or the Bill cannot be modified or controlled in a Court by reference to any such material. If a statute or a Bill refers to such material the case is different [see for example the case of Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty Ltd [1939] HCA 27; (1939) 61 C.L.R. 735 at p.754; and on appeal (1940) A.C. 838, at p.341]. [See also the Judgment of Lytham C.J. in South Australia v. The Commonwealth (1942)65 C.L.R. 373 at pp. 408-9].

In this case, I have been provided with cassettes reporting about parliamentary debates/speeches to the passing of the Repeal Bill of the Ombudsman Act 1997 for consideration.

For my part, I share the view that the reports of speeches in Parliament are also irrelevant and inadmissible. Members of Parliament frequently have differing opinions, not only as to the merits and real objects of Bills presented, but as to their meaning. Neither the validity nor the interpretation of a statute (or Bill) passed by Parliament can be allowed to depend upon what members, whether Ministers or not, choose to say in parliamentary debate. The Court takes the words of Parliament itself, formally enacted in the statute (or the Bill) as expressing the intention of Parliament. [See Richard v. McBride [1881] UKLawRpKQB 167; (1881) 8 Q.B.D. 119 at p.123; R. v. Comptroller - General of Patents (1899)1 Q.B. 909, at p.917; Sydney Municipal Council v. The Commonwealth (1909)1 C.L.R. 208 at p.213].

It has to be understood that, in other Commonwealth jurisdictions, it has been emphatically laid down that the settled practice is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law and that the proper time for the Court to intervene is after the completion of the law-making process: [see Hughes v. Vale Pty Ltd v. Cair (1954)90 C.L.R. 203; Clayton v. Hefton (1960)105 C.L.R. at p.235; and per Gibbs J., Cormack v. Cope (1974) 131 C.L.R. 447 at 467].

The position within this jurisdiction is peculiar in that by Article 16(4) of the Constitution, the President of the Republic shall petition the Supreme Court for its opinion when he considers that a Bill is inconsistent with the Constitution. As the Court of Appeal (Vanuatu) said:

"One purpose of Article 16(4) is to prevent laws which on their face appear to be inconsistent with the Constitution from being enacted. If the Bill is inconsistent with the Constitution it is not to be promulgated, and the citizen is thereby saved the trouble of deciding whether the offending provision can be read down so as not to apply to the circumstances of the particular case and tested in the Courts." [The Attorney General of the Republic of Vanuatu v. President Karlommoana Timakata, C.A., Appeal Case No. 1 of 1993, referred to earlier].

The above situation will arise only in this jurisdiction if the President does not exercise his right under Article 16(4) to challenge the constitutional validity of a Bill and that the Bill has become an Act. In effect, it was precisely because the Bill or a provision of that Bill would have been inconsistent with the Constitution, if passed into law that they would have been read down as a matter of construction if that could possibly have been done.

In Vanuatu, like in other Commonwealth jurisdictions (Papua New Guinea, Solomon Islands, Australia), the law-making process of the Parliament is controlled by a Written Constitution. In the case of Bribery Commissioner v. Ranasinghe [1964] UKPC 1; (1965) A.C. 172, the Privy Council pointed out that: "where the law-making process of a legislative is laid down by its constating instrument, the Courts have a right and duty to ensure that that law-making process is observed" per Barwick CJ in Cormack v. Cope (1974) 131 C.L.R. 447 at 467 and further:

"Where the Constitution requires that various steps be validly taken as part of the law-making process... the Court has a duty to see that the Constitution is not infringed and to preserve it inviolate ... it has the right and duty to interfere if the Constitutionally required process of law-making is not properly carried out." (at p.453).

See: Fotofili & Others v. Siale (1988) C.L.R. (Const.) 102 (CA Tonga); The Minister of Police v. Eakalafi v. et al (unreported CA decision, Tonga) and Other decisions cited.

See: Vanuatu Court of Appeal Judgment, Appeal Case No. 7 of 1996 in Re Attorney General v. Nipake Edward Natapei, 16 September 1996, unreported.

Vanuatu Court of Appeal Judgment, Appeal Case No.8 of 1997 in Re. The President of the Republic of Vanuatu v. The Attorney General v. Maxime Carlot Korman & Others, 9 January 1998.

It is an established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority includes the control of the constitutional validity of the Bills under Article 16(4) of the Constitution. [See the case of the President of the Republic of Vanuatu v. The Attorney General, referred to earlier].

Further, Article 21(5) of the Constitution provides that Parliament shall make its own Rules of procedure. Therefore, whilst this Court has jurisdiction in matters involving the constitutionality of the law-making process, it does not have jurisdiction to enquire into what has been described as "intra-mural deliberative activities of the Parliament" or the intermediate procedures of Parliament. These matters of internal proceedings of Parliament may include matters connected with business or ancillary to the formal transaction of business in the Parliament [see Hon. Willie Jimmy and Others v. The Speaker, (Civil Case No.126 of 1996 at p.13) and on appeal in Appeal Case No.7 of 1996 of 16 September 1996 referred to above; See also Appeal Case No.8 of 1997 of 9 January 1998, referred to earlier at pp.5-6].

This has to be understood on the basis that the power to make law as it has emerged from the law-making process is one thing but the actual process of law-making is another thing. This constitutes the answer to the submission (2) inviting this Court to go inside the "internal proceedings of Parliament" which is of course, refused for the reasons referred to above.

Ground (C) of the Petition is therefore dismissed.

SUBMISSIONS OF P OF PETITIONER RELATING TO GROUNDS (d), (b) & (a) - ARTICLES 4, 66 & 68 - SOVEREIGNTY, REPRESENTATIVE DEMOCRACY & ACCOUNTABILITY

1.1 It isitted that one of the distudisturbing aspects of this repeal is the complete disregard of the constitutional mandate required by Articles 66 & 68 of the Constitution. These are fundamental principles of democracy forming the underlying foundation of the State and Sovereignty of the Republic of Vanuatu as captured in Chapter 1, Articles 1, 2 & 4 of the Constitution.

1.2 It is submitted the proposed repeal is violently at conflict with this democratic check that it must be struck down. By Article 68, a clear legislative authority is conferred on "Parliament [that] by law [shall] give effect to the principles of this Chapter", which is Chapter 10, Article 66, the Leadership Code. And that direction is mandatory. By this Article, Parliament is decreed to legislate to "give effect" to the Leadership Code. No where is any other process or method of "giving effect" includes a repeal, especially one grounded in ulterior and unlawful motives. It is respectfully submitted, such a repeal without even a replacement Bill, not only contravenes the law making power under Article 16(1) but it undermines the clear demand to "give effect" decreed in Article 68. It follows all those leadership principles of check and balance and accountability prescribed by Article 66 & 43 are circumvented.

1.3 And of course, to complete that mandate to "give effect", Parliament did give effect to the Chapter by passing and enacting the Ombudsman Act 1995. And this Court in Virelala expressly acknowledges that in its judgment that that Act was a valid, lawful exercise of the power to make laws under Article 16. Therefore, the Respondent cannot, without any valid, constitutional reason, just repeal it. To do so, in the light of the argument submitted now, is to seek to avoid accountability. This is especially so when they are the very people, as outlined in the Petition, to have given themselves "ex gratia" payments of Vt1,500,000 and or compensation of VT5,000,000", for no reason but "to reward themselves" page 2, Public Ombudsman Report, June 4, (1997).

1.4 These unlawful payments and compensations are another example of how the Respondents are simply circumventing the rulings of this Court. And in the process, they make themselves unaccountable for their actions and conduct to the people who voted them in. It is important to bear in mind the series of events that have culminated in this repeal.

1.5 In Maxime Carlot et al v. Attorney General & Onneyn Tahi Speaker of Parliament, (unreported decision, CA, October 1988) the Court of Appeal of Vanuatu rejected the appeal by the Respondents who had vacated their seats from Parliament by their own voluntary acts. They argued that s.2(d) of the Members of Parliament (Vacation of Seats) Act 1983 allowing for loss of seats upon absence from Parliament on "three consecutive seatings", was an unconstitutional exercise of legislative law making functions. This is because, once they were elected into Parliament, then it follows that that ‘eligibility remains for the life of that Parliamentary term.

1.6 The Court of Appeal did not agree. It held that the"... Constitution intends that the Republic shall be governed by Parliament". And that can only happen, "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".

2.1 As a result, the Respondents lost their seats. But when they were re-elected in the next election and became government, they paid compensations themselves for those years their seat were vacated. By whose authority, or whose law or whose consent, no body knows. Just because they were the government, therefore, they had the powers to do what they want - even when it is so abhorrently wrong. And this is the real issue here. This is also the essence of their abuse, the true nature of this case, the true mind and hear at issue.

2.2 And following these and when the Ombudsman Reports became public that they had made themselves ‘ex gratia’ payments out of the people’s money, they began this campaign now culminating in this, fourth Court case.

3.1 With that in mind, it is respectfully submitted that the accountability demanded of them is a high standard conducive expressly to what is expected of them as leaders. And that accountability is the fundamental premise upon which Article 68, 66 & 4 are founded. In Special Reference No.2 by Public Prosecutor pursuant to Art.19 of the Constitution [1993]2 LRC 114, the Supreme Court of Papua New Guinea, in giving scrutiny of Articles 26 & 31(1) of the Constitution of Papua New Guinea relating to its Leadership Code held, @ p. 121 1f-g:

"We gave extended the entire and primary purpose of the Code to be the preservation of the people of Papua New Guinea from improper and corrupt conduct of their leaders. The ultimate maximum sanction of dismissal from office with the consequential disqualification in the prescribed categories of public offices under [Art.] 3 of the Constitution is removal from office of leaders found guilty and unworthy of continuing in public office to serve the people".

3.2 And declaring expressly on accountability, it stated, @ page 125, 1 e-g:

"It is certainly not the best national interest to suggest that a leader, who is being investigated or being prosecuted or who has been found guilty or misconducted and recommended to be dismissed, should be encouraged to resign and avoid being accountable. It is even more outrageous to suggest that having so avoided accountability and the sanctions of the [Code] in the leadership office he formerly held, that such a person could assume another term in the same leadership office, or indeed a completely different office with the same obligations towards the people he is to serve, and still be immune from accountability for his misconduct in the former office. Such a proposition is quite without merit. It is certainly not what we apprehend the founding fathers to have meant by the national interest...".

"The common sense approach as contemplated by the scheme of the Code... is that if a person in a current leadership office is found to have been guilty of misconduct in an earlier leadership office, he should be held accountable for that earlier misconduct. He is a leader as defined at all times as long as he holds leadership office, with all the attendant responsibilities and obligations for preservation of the people and the national interest...".

3.3 The case relates to a Reference seeking the opinion of the Supreme Court on two questions:

(1) Whether the Leadership tribunal could continue with its inquiry of an MP regardless that the MP has resigned, and that the tribunal formally recommended that the MP be dismissed; and

(2) In the event of an MP subsequently being re-elected to public office, whether the earlier investigation could be revived to enable the tribunal to reach a determination on that inquiry.

The Court held, dismissal was the ultimate sanction in these circumstances, therefore, the Code does not apply; but where the same person, is re-elected, and again holds public office, then it would be wrong to construe the Code as not applying to that person, based on that earlier investigation. Page 121-123 & 125.

3.4 When applied to the facts here, it is patently clear the breach of the Constitution by the repeal point to a very high degree of accountability for all the Respondents, by virtue of their position, standing and responsibility, must, at all times, abide by. It is also such a high degree of trust that inevitably, it is submitted that we have to go back to the very beginning of these submissions when we ask that absent any clear law or authority for giving themselves these ‘compensatory payments’, this accountability proves the ulterior motives and malicious intent in the respondents to subvert the Constitution and the law.

4.1 In total, these very principles of accountability are the very limits upon which Parliament must abide, in the exercise of its legislative functions conferred by Article 68, in recognition of the check and balances required by Articles 66 and 67. And these limits were expressly referred to by this Court in Jean Paul Virelala et al v. The Ombudsman (unreported Decision, Supreme Court, September 1997, and in The Ombudsman v. Attorney General & National Government of the Republic of Vanuatu (Unreported Decision, Supreme Court, October 1997).

4.2 In the Virelala case, this Court, after citing the two limitations on the exercise of Parliamentary power under Article 16, declared, page 24,

"...I am of the view that [the] Vanuatu Parliamentary has plenary powers under Article 16(1) of the Constitution, not only to make laws for the ‘peace’ and ‘order’ but also laws for the ‘good government of Vanuatu’. And the expression in an organic instrument of government that is to be adapted to changing times and circumstances".

4.3 The facts are that the plaintiffs objected to the enquiry by the defendant into the purchase of an ATR42/500 new aircraft, made under direction of the Prime Minister. The plaintiffs, all member of the Board of Director of Air Vanuatu, denied appearances on the summons issued claiming the Ombudsman had no jurisdiction, and filed proceedings seeking termination of the enquiry.

4.4 For a variety of reasons, it was argued for the plaintiffs that the enquiry is unlawful and the Ombudsman Act 1995 was unconstitutional and therefore confers no valid powers to investigate and make enquiries. The only valid source of power for the Ombudsman to act is Part 2 Chapter 9, which is a complete Code and unless that part of the chapter was amended to provide for the Ombudsman Act as it stands, then there is no valid authority for the enquiry currently undertaken.

4.5 The extent of the submission is that without the grant of powers under Article 68 that "Parliament shall by law give effect to the principles of this Chapter", then the only valid powers to the Ombudsman are as prescribed by Part 2 Chapter 9 and not the Ombudsman Act.

4.6 For the Ombudsman, it was argued that such view misconstrue the true nature of the Constitution. In rephrasing those submissions, it is submitted that read together with Chapter 10, Part 2 Chapter 9, those constitutional safeguards are the corner stone of constitutional accountability, responsible government (Art.43) and representative government (Art.17) which is the foundation of the constitutional democracy of Vanuatu. Leaders are answerable to the people who elect them in. Part 2 Chapter 9 and Chapter 10 authorises the passage of the Act on account of that democratic accountability. Therefore, it is valid and constitutional. Parliament acted within its plenary powers under Art. 16 in making the law.

4.7 In its judgment, this Court emphasised the evolving aspect of the Constitution are limited and held, at page 23

"Subject to the Constitution, Parliament of Vanuatu is given plenary powers under Article 16(1)... to make laws for the peace, order and good government of Vanuatu. The expression ‘subject to the Constitution means that the powers of the Parliament are limited and that its limits are not to be transcended".

Counsel for the Petitioner questions the second sentence of this holding and said that what is clear however from Art.16 is that that law making power conferred on Parliament is discretionary and not mandatory. Therefore, it is an exercise of legislative authority subject to judicial scrutiny and review.

4.8 Then at page 23, the Court noted that there are two constitutional limitations to the exercise of Parliament’s power under Article 16 of the Constitution-

"Firstly, the Court will declare an Act or provision of an Act unconstitutional when it infringes one of the fundamental rights and freedoms guaranteed and protected under Article 5 of the Constitution...[and]

Secondly, the Court will intervene to sanction an Act of Parliament or a provision of an Act of the Parliament, by declaring it unconstitutional in the circumstances where there is an express or explicit prohibition... but Parliament nevertheless legislates to that prohibited effect in contravention of the constitutional express prohibition."

5.1 Applying these to the facts of the case the court held, page 27

By considering [certain sections] of the Ombudsman Act, together with the power of Parliament to make laws for "... the good government of Vanuatu"... and since there is no relevant constitutional prohibition provision for... Parliament to legislate as it did through the Ombudsman Act and in particular under S.14(1)(a), (b), (c), and (3), I am of the opinion that Parliament had acted within the permissive limits of the Constitution" in passing that Act. And accordingly, the application for termination of the enquiry was rejected.

6.1 And in The Ombudsman case, this Court was dealing with an application by the Applicant that the First and Second Respondents were acting in violation of the Constitution in seeking to dismiss her, under Decision No.125/3.

6.2 One of the arguments raised in objection to the purport dismissal was that the Respondents were acting upon unlawful exercise of executive authority that overrides the clear mandate of the Constitution and consequently impinges upon the democratic sovereignty of the country.

6.3 It is submitted no valid constitutional arguments were advanced in defence of the Respondents. And in determining the case, this Court held:

"Any determination of appointment of the Ombudsman can only be made in accordance with section 9 of the Ombudsman Act and not otherwise, and I so rule. By virtue of Art. 39(1) of the Constitution, the Prime Minister and the Council of Ministers are not above the law or the Constitution. The same goes for everyone in this country."

7. While the purported decision here to dismiss the Ombudsman did not involve Article 16 of the Constitution, it is clear that read together with the Virelala case and the sequence of events culminating in these proceedings, this case establishes authority of strong evidence of abuse of public office for personal and private reasons. As submitted in the Vermeulen case and as expressly referred to in Virelala, there is abuse of legislative authority. But unlike the Virelala case and more like the Vermeulen case, this abuse is not within the scope of constitutional legislative authority under Article 16(1). Accordingly, it is respectfully submitted the repeal breaches Articles 68, 66 & 4 of the Constitution.

8. It is also submitted that on the facts and authorities cited in support for the Petition, this repeal law falls way beyond the constitutional safeguard of Articles 16(1),(2), 4, 66 & 68. As mentioned in the Virelala and Ombudsman cases, not only is this purported repeal outside the powers conferred by Article 16(1) & (2) and therefore becomes an abuse actionable by the Court (Virelala), but to allow it to be promulgated upon assent of His Excellency is to give legitimacy to the Respondents to ‘act above the law’. Indeed, even after the Court of Appeal had ruled against them in the Maxime Carlot case that they had forfeited their seats by operation by law and therefore had no right or authority to be members of Parliament, they ignored that ruling and paid themselves the money when they got back into power. If that is not illegal, it is unlawful. If not, it is contemptuous. It is the Petitioner’s submissions that that is abuse akin to dictatorship.

9. Finally, the view was expressed in the Court of Appeal of Solomon Islands in Kenilorea v. Attorney General [1986] LRC (Const.) 126 @ 134 1h-l, 135, 136 d-h.

"...that the legislature may legislate for the generality of its subjects... as is recognised by the Constitution... It is when the legislation ceases to be general in character and is directed to a particular person and even more so when founded on past acts that the difficult question arises whether the line between the legislative and the judicial power has been transgressed... Instances of legislation which is plainly beyond the power of the Legislature... include the passing of an Act of attainder against some person... What is clear however is that legislation which is not passed for the generality of the citizens but which is clearly aimed at a particular known individuals, the alterations in the law not being intended for the generality of the citizens or designed as any improvement of the general and in particular, I would add, directed at particular pending litigation and to have no effect once that litigation is terminated will amount to such transgression. Each case however must be decided in the light of its own facts and circumstances, including the true purposes to the legislation, the situation in which it was directed and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings". Emphasis italics.

10.1 On the facts here, the repeal is aimed expressly not to the generality of the citizens of Vanuatu, but specifically to the Ombudsman and her work. Its purpose is to stop the Ombudsman work. And it is directed at circumventing the investigations, amongst other things, in relation to the ‘ex gratia’ payments which directly affect the Respondents. And of course, there is litigation right now before this Court on those very ‘ex gratia’ payments.

10.2 The case concerned an application that ss.4 & 5 of the Price Control (Retrospective Operation and Validation) Act purported to usurp the function of the Courts in seeking validation of certain retrospective legislation.

SUBMISSIO T OF THE RESPONDENT ON GROUNDS (a), (b) AND (d) OF THE PETITION

Ground (a):

Article 68 of the Constitution has been referred to by the Petitioner in submitting that the Bill repealing the Ombudsman Act should have been replaced. The failure of Parliament to enact a replacement Bill is considered by the Petitioner to be inconsistent with Article 68.

Article 68 provides that parliament shall by law give effect to the principles of this chapter (the chapter being Chapter 10 of the Constitution).

Chapter 10 of the Constitution enunciates principles pertinent to the conduct of leaders and the leadership code.

The correct interpretation of Chapter 10, therefore, must be, it is submitted for the Respondent that:

(i) Only Parliament can give effect to the principle of Chapter 10 by enactment of law. In this sense the Constitution empowers Parliament to enact laws to give effect to Chapter 10.

(ii) Parliament shall give effect to the principles of Chapter 10 by enactment of law and by no other means.

(iii) As long as Parliament’s intention is to give effect to the principles of Chapter 10 there can be no inconsistency.

(iv) If Parliament’s enactment is to consider the repeal as exclusively, exhaustively and completely expressing Parliaments position as regards Chapter 10, thus, covering Chapter 10 to the exclusion of any other law then the repeal Bill must be inconsistent with the Constitution.

The affidavit of Hamilson Bulu, Attorney General clearly evinces an intention by Parliament to express by its enactment a leadership code as well as either repealing the repeal or put into place by enactment a replacement Ombudsman’s Bill, this year.

In any event the Repeal Bill does in no way remove the Institution of the Ombudsman as enshrined in the Constitution and Article 65 emphatically reinforces Part II of Chapter 9 of the Constitution.

>Ground (b):<

The Petitioner in reference to Article 66 of the Constitution submits to the Court matters which the Respondent says are evant to the considerations of the Court.

The CThe Court has only one issue to satisfy itself in this proceeding (President v. Attorney General VLR p.587). It is therefore irrelevant to the considerations of the Court how a bill is enacted by Parliament so long as the Parliamentary role may show that the Standing Orders were pursued in the enactment.

There can be no litigation on the internal proceedings of Parliament.

Fotofili and Others v. Ipeni Siale [1987] AC 765,

It would be irrelevant for the Court to concern itself with matter in respect of Civil Cases 85 and 104, and for which the machinations of the Court have been invoked, and for which the Respondent dare say are matters that are sub-judice and are not matters that have been affected by the Repeal.

See also Section 11 Acts of Interpretation Act [CAP 132].)

It would therefore be in contravention of the law to invite the Court to correlate facts and issues in matters that are sub-judice to have a bearing on this case.

It is not for the Petitioner to invite the Court to determine whether or not an MP should participate in a debate and/or vote in accordance with the internal proceedings of Parliament.

It is a prerogative that vests entirely in a Member of Parliament who once mandated by Political choice to take a seat in the Supreme legislative body of the Republic of Vanuatu, maintains a privilege which cannot be called into question.

The privilege of a Member of Parliament during the course of the internal proceedings of Parliament may only be called into question if the matters do not necessarily concern the Members as individual members.

All the Court may be entitled to do is to ascertain as a fact whether there has been a collective decision of the House on the repeal (in this case a majority decision) and if so what it is. It cannot question that decision. (Fotofili and Others v. Ipeni Siale [1987] SPLR at p.345.

To invite the Court to do so would in effect be calling upon the Court to adjudicate the proceedings of Parliament bringing the Court and Parliament into direct conflict and further to demean the status of a Member of Parliament in the Republic of Vanuatu.

The Bill is further not inconsistent with Article 66 because it is not a complete, exclusive and exhaustive manifestation of the intention of Parliament.

Parliament made it clear by majority vote that a replacement bill was to replace the incumbent Act. The Affidavit of Hamilson Bulu clearly evidences Parliament’s exclusive intention.

In Ellen Street Estate Ltd v. Minister of Health (1934) 1 KQ 590 Maugham LJ said at p.597:

"The legislature cannot according to our Constitution, bind itself as to the form of subsequent legislative, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make at plain that the earlier statute is being to some extent repealed effect must be given to that intention just because it is the will of Parliament."

Therefore, there can be no doubt whatsoever that the repeal in no way binds the current or future Parliament.

G (d):<

Article 4(3) of the Constitution: "Political parties to respect the Constitution and the principles of democracy".

COURT CONSIDERATDERATIONS ON GROUNDS (b)-ARTICLE 66,
GROUND (a) - ARTICLE 68 AND GROUND (d)-ARTICLE 4 OF THE CONSTITUTION

It is urged upon the Court on behalf of ttitioner that grounds (a), (a), (b) & (d) be considered together even though they are separately grounded in the Petition.

What I propose to do, is, to consider each ground separately in order to ascertain the meaning to be given to the respective constitutional provisions in the relevant contextual situations such as the ones presently under considerations, respectively: Articles 4, 66 and 68. I will only, then, consider grounds (a), (b) and (d) together as suggested if, it is necessary for me at all to do so.

I have to mention specifically that some of the submissions made under grounds (a), (b) and (d) were already made, considered and decided upon under ground (c) of the Petition. I shall not repeat them again here.

Chapter 10 of the Constitution is dealing with leadership Code on the basis of three (3) Articles, respectively: Art. 66, 67 and 68. I decide to proceed, first, with ground (b), (a) and, then, ground (d) of the Petition.

GROUND (b) OF THOF THE PETITION: ARTICLE 66 - CONDUCT OF LEADERS

Article 67 says:

"For the purposes of this chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law."

And Article 66 provides:

"(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1)."

It is of some importance to note that Article 67 of the Constitution refers specifically to some leaders. The list or categories of the leaders under that Article is yet to be added in that "... such public servants, officers of Government agencies and other officers may be prescribed by law" as leaders.

Therefore, the conduct referred to under Article 66 of the Constitution is a common type of conduct which is set out for the leaders in their public and private life. These leaders assume different types of functions/rights and duties/responsibilities either as an individual leader (example of the President of the Republic of Vanuatu) or considered in a specified category of leaders (example of the Ministers, Members of Parliament, specified Public Servants, Officers of Government agencies ...).

The consideration of such a conduct must be undertaken in the light of the respective functions/rights and duties/responsibilities of a leader or specified category of leaders and also in the light of the exercise of these rights and duties assigned to them (individually or in specified category of leaders).

The word "conduct" referred to under Article 66, is not defined in the Constitution. No specific submissions were made to that very point. I will not adventure myself in that speculative exercise since I am sure that ample opportunities will be provided in future for judicial considerations on the subject-matter. I will now limit myself to the present proceedings.

As far as a Member of Parliament is concerned, s/he is a leader under Article 67. As a Member of Parliament, s/he has a right/privilege and as a representative of his people in Parliament, has a duty to participate in Parliamentary debates, to vote for or against or to abstain on the passing of any Bill (emphasis added).

I, therefore, accept the Respondent’s submission that it is not for the Petitioner/President to invite the Court to determine whether or not a Member of Parliament should participate in a debate and or vote in accordance with the internal proceedings of Parliament.

It is a prerogative that vest entirely in a Member of Parliament who once elected to Parliament and thus, become a Member of Parliament, maintains a privilege, a right of expression in Parliament to take part in a debate, to vote for and/or against a Bill or to abstain. This cannot be called into question. (Further development on this point will be provided latter on under ground (d) of the Petition).

All the Court may be entitled to do is to ascertain as a fact whether there has been a collective decision of the House on the repeal, that is, whether the required majority decision reflecting the express intention of Parliament has been reached in the particular situation. The Court cannot question that decision.

See: Fotofili and Others v. Ipeni Siale (1987) SPLR at p. 345.

Ground (b)(ii) is therefore dismissed.

As to ground (b)(i) of the Petition, it is also dismissed. The following authorities were cited and referred to before this Court in support of ground (b)(i) of the Petition:

I have read the two (2) cases. They are, indeed, important judicial pronouncements on various issues related to the Institutions/Office, functions and duties of the Ombudsman and in particular appointment of the Ombudsman (Vanuatu Case) and investigations and prosecutions of the leaders by the Ombudsman in Court (Papua New Guinea Case). But, nevertheless, they are both irrelevant to the question of the Constitutional validity of the Repeal Bill of the Ombudsman Act 1997.

Those two (2) cases were also referred to on the basis of ulterior motives and are already dealt with and rejected for the reasons I mentioned under ground (c) of the Petition. I will not repeat them again here.

The case of Kenilorea v. Attorney General (1986) L.R.C. (Const.) 126 [C.A. of Solomon Islands Judgment] was cited and referred to this Court in support of the Petitioner’s argument that the Repeal Bill of the Ombudsman Act of 1997 is aimed specifically to the Ombudsman and her work.

I have to reiterate that the Repeal Bill in question is not aimed especially to the Ombudsman and her work. As I have already ruled upon, this has to be gathered from the intention of Parliament, formally enacted in the wordings of the said Repeal Bill of the Ombudsman Act of 1997 which is not the case here. Further, the Repeal Bill cannot abrogate the Institution of the Ombudsman which is enshrined in the Constitution of Vanuatu of 1980: under chapter 9, Administration, Part II: The Ombudsman (Articles 61, 62, 63, 64 and 65).

I have to mention specifically that ground (b)(i) of the Petition concerns matters in respect of Civil Cases 85 and 104 of 1997 "Ex gratia payments" or "compensation payments" for which the machinations of the Court have been invoked, and as such, are sub-judice and are not matters that have been affected by the repeal. In effect, these two (2) matters were listed before this Court and were scheduled to be heard on 8 June 1998 at 9.00 am o’clock in the forenoon.

Section 11 of the interpretation Act CAP 132 provides that:

S.11

"(1) Where any Act of Parliament repeals any Act, the repeal shall not-

(a) ...

(b) ...

(c) ...

(d) ...

(e) affect any... legal proceedings...and any such legal proceedings... may be continued or enforced, ... as if the repealing Act had not been passed.

...".

By perusing the language of section 11 of the Interpretation Act and in particular section 11(1)(e), I accept the Respondent’s submission that it would be in contravention of the law to invite the Court to correlate facts and issues in matters that are sub-judice to have a bearing on this case. This is an abuse of the process of the Court and cannot be tolerated.

The case of Kenilorea (1986) (referred to above) cannot be relied upon on this particular point and has to be distinguished from the factual situation of the present case and, as such, does not constitute a persuasive authority at all for the purposes of this case.

The Repeal Bill of the Ombudsman Act of 1997 is not inconsistent with Article 66 of the Constitution.

Ground (b) of the Petition is therefore dismissed.

Gr(a) of thof the Petition

Article 68 of the Constitution provides:-

"Parliament shall by law give effect to the principles of this Chapter" (which is chapter 10).

By exercising its legislative power under Article 16(1), Parliament gives effect to the principles of this Chapter by enacting the Ombudsman Act No. 14 of 1995.

Subsequently, by exercising its legislative power under Article 16(1), Parliament passed a Bill which repeals the Ombudsman Act no.14 of 1995, but, however, no replacement Bill for the Ombudsman Act was enacted by Parliament.

Then, is the failure of Parliament to enact a replacement Bill for the Ombudsman Act, inconsistent with Article 68?

The answer to that question depends on the ascertainment of the Parliament’s intention to give effect to the principles of Chapter 10 of the Constitution.

It is to be noted that the Constitution mandates Parliament to "give effect" by law to the principles of chapter 10 of the Constitution. It is a purely legislative prerogative given to Parliament by the Constitution. The Constitution does not provide for a specified time limit/period within which the Parliament has to "give effect" by law to the principles of Leadership Code. [Chapter 10 of the Constitution].

Therefore, if the Parliament’s intention is to consider the repeal Bill as exclusively, exhaustively and completely expressing Parliament’s intention as regards Chapter 10, thus, covering Chapter 10 of the Constitution, to the exclusion of any other law, then, the repeal Bill must be inconsistent with the Constitution.

But if Parliament’s intention is to give effect to the principles of Chapter 10, then, there can be no inconsistency.

In this case, I accept the sworn affidavit of Hamilson Bulu, Attorney General, filed before this Court in support of the Respondent, which clearly evinces an intention by Parliament to express by its enactment a Leadership Code Bill, as well as either repealing the repeal Bill of the Ombudsman Act of 1997 or put into place by Parliament’s enactment a replacement Ombudsman’s Bill, this year 1998.

The answer to the question of inconsistency of the Bill with Article 68 is: NO.

In my judgment, whilst the Supreme Court of Vanuatu has power to invalidate legislative enactments or proposed enactments, it cannot compel the Parliament to exercise a purely legislative prerogative. Put another way, this Court cannot order the Parliament or its members to legislate or not to legislate under the doctrine of separation of powers between the Executive, Legislative and the Judicial branches of the Government of this Republic.

In effect, the doctrine of separation of powers, coupled with the principle of responsible government, constitute the two (2) fundamental Parliamentary democratic principles and safeguards guaranteed under the Constitution and it is the duty of the Court to ensure that they are not abused and their values are not diminished.

Overall, "it must be remembered that legislating is the constitutional domain of Parliament. The Court’s constitutional duty is to strike down legislations (proposed laws) inconsistent with the provisions of the Constitution and leave the legislature to amend or repeal where the Court has struck down the offending legislations (proposed laws). The lesser the judicial branch of Government intrudes into the domain of Parliament, the better for the functioning of democracy." (emphasis added).

See: Kanersa v. Minister of Home Affairs & Others, Judgment of the Supreme Court of Namibia (1995) L.R.C. (Const.) 1540 at 1558 (Dumbutshena J.A.) with whom I fully agree and, therefore, adopt here.

For the above reasons, ground (a) of the Petition is therefore dismissed.

Ground (d) of thof the Petition

Article 4(3), which provides as follows:

"Political parties may be formed freely and may contest elections. They shall respect the Constitution and the principles of democracy".

The essence of the Petitioner’s argument, here, is that the Repeal Bill of the Ombudsman Act, in view of its repeal of the Ombudsman Act in toto, and in the absence of a replacement Act and/or any one or more of the matters particularised in (a) to (c) above, is contrary to and inconsistent with the spirit of the said democratic principles and as such is therefore inconsistent with Article 4(3) of the Constitution.

I find this ground to be quite misconceived.

Article 4(3) of the Constitution provides for the free formation of political parties and that it is the political parties which shall respect the Constitution and the principles of democracy.

The challenge before this Court is about the constitutional validity of a proposed law of Parliament. The Parliament of Vanuatu is not a political party. The Repeal Bill of Parliament has nothing to do with a political party. A political party is an outside body. [see Vanuatu Court of Appeal decision No. 6 of 1998, in Barak T. Sope & Others v. Attorney General and Others referred to below].

It is by Article 4(3) of the Constitution that political parties are formed freely and contest for general elections in order to have representative-members to participate in the democratic exercise of the powers of Government of this Republic through National Parliament. Once elected they become Members of Parliament and they enjoy parliamentary privileges as Members of Parliament.

The Appeal Case No.6 of 1988, in Barak T. Sope & Others v. Attorney General & Others (1988) [Vanuatu L.R. Vol. 1, 1980-88, p.411] is the authority for the proposition that a Party Member of Parliament has a fundamental right to freedom of expression in Parliament. It is unconstitutional to hinder or preclude a Party Member of Parliament, to express an unfavourable opinion in the Government Leadership by a constitutionally provided procedure of parliament, namely: Motion of No Confidence. In that case, the Court of Appeal, held, then, that the rule of conduct of the Vanuaaku Pati Constitution is unconstitutional in that it infringes the fundamental right to freedom of expression of a Party Member of Parliament in Parliament.

In the present case, the Petitioner, through his counsel, repeated all matters particularised in grounds (a) to (c) including in particular ground (b)(ii), in support of ground (d) [Article 4(3) - Constitution], now, under consideration.

For the present purpose, ground (b)(ii) of the Petition reads:

(b)

"(ii) by failing to abstain from the debate and/or vote on the bill, the Government Members of Parliament cast their parliament votes in circumstances that were inconsistent with and in breach of their constitutional obligations as leaders pursuant to the provisions of Article 66 of the Constitution".

In this case, the Government Members of Parliament in Parliament exercise their fundamental right to freedom of expression enshrined and guaranteed under Article 5(1)(g) of the Constitution to participate in the parliamentary debates and vote in favour of the Repeal Bill. Equally, the Opposition Members of Parliament exercise their fundamental right to freedom of expression, in Parliament, by taking part in the parliamentary debates and vote against the Repeal Bill. Other Members of Parliament, by the exercise of their fundamental right to freedom of expression in Parliament, abstain to vote.

This is clearly an example of the operation of a democratic legislature. That operation is effectuated under Articles 1, 2 and 4 of the Constitution [Chapter 1 - the State and Sovereignty].

And, it is worth mentioning that Article 4(3) of the Constitution constitutes one of the basic tenets of a free and democratic society in this young Republic.

Therefore, to invite this Court to declare that the Repeal Bill of the Ombudsman Act of 1997, is contrary to and inconsistent with the spirit of the democratic principles and, as such, inconsistent with Article 4(3) of the Constitution, on the grounds, inter alia:-

    • that Government Members of Parliament fail to abstain from the parliamentary debate; and/or vote
    • that they cast their parliament votes in circumstances that were inconsistent with and in breach of their constitutional obligations as leaders pursuant to the provisions of Article 66 of the Constitution,

is extraordinary and obviously without basis.

The effect of that invitation is to request the Court to interfere with the due or lawful exercise of the fundamental rights and freedoms of the individual members of Parliament enshrined and guaranteed under Article 5(1)(g) of the Constitution. The Court has a constitutional duty to protect and enforce the breaches of the fundamental rights and freedoms of the individuals enshrined and guaranteed under Article 5 of the Constitution. It is not part of the Court’s duty to interfere with the due and/or lawful exercise of these fundamental rights and freedoms. To do otherwise, is to go beyond the Constitution and the Court are not permitted to do so.

Other comments made earlier on under ground (b) - Article 66 of the Constitution - are equally applicable and repeated here.

I therefore accept the Respondent submission that, in this case, the Bill cannot be said to be inconsistent with Article 4(3) because the working of Parliament to make laws, via its proper process, is an element of parliamentary democracy.

Parliament exercises its powers under Article 16(1) and had passed a Bill in accordance with Article 16(2) and in pursuance of parliamentary procedure through Parliament’s Standing Orders. In that respect, as indicated by the affidavit of Hamilson Bulu, the present Parliament will go further, to respect the Constitution of the Republic of Vanuatu by passing an Act that will bring to life Chapter 10 of the Constitution. That is a matter for Parliament. Therefore, to say that the proposed law of Parliament, on 15 November 1997 was inconsistent with Article 4(3), is without basis. Further the two international instruments identified, namely: The Harare Declaration 1991 and the 1997 Cairns FEMM Action Plan are not legally enforceable.

Therefore, the Repeal Bill of the Ombudsman Act of 1997 was not inconsistent with Article 4(3) of the Constitution.

Order

The relief sought is denied.

No order as to costs.

DATED AT PORT-VILA, this 5th DAY OF JUNE, 1998

BY THE COURT

Vincent LUNABEK J.
Acting Chief Justice

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