Jimmy v Tari [2000] VUSC 16; Civil Case 035 of 2000 (7 April 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Civil Jurisdiction
Civil Case No.35 of 2000

IN THE MATTER OF THE CONSTITUTION OF THE
REPUBLIC OF VANUATU

BETWEEN:

WILLY JIMMY TAPANGA RARUA
HENRI TAGA
VINCENT BOULEKONE
PAUL TELUKLUK
KORA MAKI
Petitioners

AND:

PAUL REN TARI
Speaker of Parliament
First respondent

AND:

ATTORNEY GENERAL
Second Respondent

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REASONSASONS FOR ORDER

An ex-parte summons was lodged at the Court at midday on 6 April 2000 for hearing at 3 p.m. An affidavit of urgency was lodged in support. The matter was first heard at 3 p.m. when the Petitioners were represented by Mr. Nalial, the First Respondent was neither present nor represented and the Second Respondent was represented by Mr. Ham Bulu.

Mr. Nalial informed the Court that the First Respondent had been served at 2.44 p.m. This was effected by a clerk from his office passing the papers to a Parliamentary clerk who was then seen to give the papers to the First Respondent in the chamber and during a sitting.

I do not find that this was good service. Accordingly I treated the Respondent as not served.

Mr. Nalial informed the Court that Parliament is currently in session and the normal hours of sitting are from 8.30 am to 11.30 am and from 2 p.m. to 5 p.m.

The Court declined to hear this matter on an ex-parte basis without the First Respondent being served and being given the opportunity to appear and make representations. The matter was therefore adjourned until 6 p.m. and Mr. Nalial undertook to use his best endeavour to serve the First Respondent with the papers and notification of the fact that the Court would sit again at 6 p.m.

Mr. Ham Bulu for the Attorney General stated that the Attorney General could not see on what basis he could be a party to the proceedings. Mr. Nalial put forward no argument to substantiate the inclusion of the Attorney General as a party and accordingly he remained as amicus curiae only.

The Court sat again at 6 p.m. Mr. Nalial and Mr. Ham Bulu were present as before. The First Respondent was neither present nor represented.

Mr. Nalial informed the Court that he had himself attended the entrance to Parliament at 5.10 p.m. and personally handed the documents to the First Respondent. The First Respondent would not take the documents and said “I have received these documents already”. Mr. Nalial told him the matter was to be heard at 6 p.m. The First Respondent replied “I will not come. You look to the Attorney General. He represents me. Contact the Attorney General immediately.”

Mr. Ham Bulu for the Attorney General stated that his position has not changed. Further, the Attorney General had had no communication whatsoever from the First Respondent about these matters. Mr. Ham Bulu remained present as amicus curiae.

I had read he Petition, the summons, the affidavit of urgency, the affidavit of service, the affidavit of Willie Jimmy Tapanga Rarua and the outline submissions. I was supplied with a copy of the Standing Orders of Parliament and copies of the authorities referred to herein.

Mr. Nalial said that by an Order of Marum J. dated 27^th October 1999 the petitioners were affirmed as members of the U. M. P. (Union of Moderate Parties) and entitled to attend that party’s congress on 24-27 October 1999. Any suspension issued by Serge Vohor dated 19^th October 1999 was against the order of the Court of 18^th October 1999. Further, the decision of the National Council of the UMP dated 25^th October 1999 was declared null and void. That decision purported, apparently, to exclude the Petitioners from the party.

That order and judgment have been appealed and are to be heard by the Court of Appeal on 8^th May 2000. In the meantime, Marum J.’s order stands.

Motion No. 1 of 2000 is at annex B of the affidavit of Willie Jimmy Tapanga Rarua. It states that Section 52 (1) (a) of Standing Orders requires a member, within three months to declare of which political party he is a member. The motion further said that as the UMP congress of 24-27 October 1999 had expelled the Petitioners they weren’t members of the UMP, hadn’t declared themselves as members of another political party and were therefore strangers in the House and should remain out of the House until a proper declaration of membership of a political party was made.

The motion was passed, the five members were expelled and, apparently, the police at Parliament instructed not to allow the five petitioners to enter the building.

Mr. Nalial put his case on two bases

1. Since by a ruling of the Supreme Court the Petitioners are still members of the UMP, their declarations as to that membership satisfied section 52 (1) (a) of Standing Orders and Motion 1 of 2000 was not only wrongly based in fact, but purported to render ineffective an order of the Supreme Court.

2. Even if, which is denied, the Petitioners were not members of a political party or had assumed membership of a party different from the one they were members of at the time of their election, then it would be unconstitutional for them to be expelled from the House on that ground alone. He cited Articles 6 (1), 6 (2), 7(c), 17 and 21 of the Constitution.

In support he cited the dicta of the Court of Appeal in Sope –v- Attorney General and Others (AC 6/88). Further he drew the Court’s attention to Standing Order 34 (2), “a question shall not refer to any matter on which a judicial decision is pending or reflect on the decision of a Court of Law”, as considered by Order 35 (3) to include written motions. His arguments are set out in his outline submissions.

I refer to Appeal Case 7 of 1996, the Attorney General and Nipake Edward Natapei against Willy Jimmy, Barak Sope and others. At page 9 the Court says “The principle [is] that Parliament is not subject to direction by the Court so long as its proceedings are not inconsistent with obligations placed upon it by the law from which it derives its powers …” it [is] plain that the Courts have a duty to interfere “if the constitutionally required process of law-making is not properly carried out”. A little further on the dicta of Megarry V. C. in John v. Rees (1969) 2 All ER at 367 is cited and I remind myself of these principles.

I am asked to make the order as set out in the summons. I will not make any final orders. I will consider temporary orders. This matter has come before the Court speedily and without argument from the First Respondent. Nevertheless the matter does require urgent attention.

I find the petitioners do have an arguable case on both grounds advanced by Mr. Nalial. I do not say at a full hearing that those arguments would succeed. However, they appear to be properly based and have a reasonable prospect of success.

In considering a temporary or interim order I must look to the balance between the five members being excluded from the House until final order or their resuming their seats. If they are excluded five constituencies will, in effect, be unrepresented for a substantial period. The five members will also be in danger, rightly or wrongly, of steps being taken to declare their seats vacant having missed three sitting days. If an order is made permitting their return then they will be able to participate in the business of Parliament when a motion has been passed excluding them, purportedly for breach of the House’s Standing Orders.

However it is the interpretation of these orders, the effect of an order of the Supreme Court and the application of the Constitution which are at the heart of this matter.

Accordingly I will make an interim order effective forthwith as requested in the summons. The order will run until 5^th July 2000 or such earlier time as any further order is made. There will be liberty to all parties to apply and costs be reserved.

I note that the fifth Petitioner, Kora Maki, did not appear to be a party to the proceedings before Marum J. I also note that in the affidavit of Willy Jimmy Tapanga Rarua there is no copy “Curriculum Vitae” in which he makes a declaration of adherence to a political party. Motion No. 1 of 2000 is worded on the basis that for its purposes he is indistinguishable from the other four Petitioners.

In these circumstances the first argument of Mr. Nalial does not apply as forcefully in his case. However, Mr. Nalial’s second point, concerning the Constitution does apply to him. That argument concerning him, and the other Petitioners, is strengthened by the judgment in the Court of Appeal in the case of Sope and others and the Attorney General and others Appeal Case 6 of 1988 (Vol. 1 Vanuatu Law Reports p. 411 at p. 415). The Court held that section 2 (f) of the Members of Parliament (Vacation of Seats) Act 1983 was unconstitutional. The Court said “The basic question is whether it is necessary for the proper functioning of Parliament, or to preserve the proper quality of its members, for a Member of Parliament to remain a member of a political party whose candidate he was at the election. The only possible answer to that question is ‘No’.” I make no finding as to the constitutionality of Section 52 (1) (a) of Standing Orders. I make no finding as to whether its correct interpretation is that a member of Parliament should declare of which political party he is a member, if he is a member of any political party, or that he has to be a member of a political party and declare which.

For these reasons and for the purposes of this application and the order I make I have treated the position of the fifth Petitioner in the same way as those of the other four.

Dated at Port Vila, this 7^th day of April 2000.

R. J. COVENTRY
JUDGE.