The sitting referred to under
the Standing Orders of Parliament means “a day or part of day or any period”
as submitted
by the Petitioners. On each day when Parliament assembles and
the Speaker takes the chair, there is a sitting.
A parliamentary session may be divided into meetings; meetings may be divided into sittinittings. [See
Maxime Carlot & Others v. Attorney General & Others (1988), Van.
C.A., App. Case No.4 of 1988, Van.L.R. Vol. 1, 1980-1988 at 409].
Order 40(4) provides that:
“Parliament may, on a
motion moved by a Me a Member, suspend any Member from the service of Parliament
for such period indicated
in the Motion. A Member who is suspended shall not
be admitted to Parliament or its precincts during the period of suspension.”
(Emphasis added)
As it transpires fre
perusal of Order 40 and in particular Order 40(2)(c(2)(c) & (e) of the Standing
Orders of Parliament,
the Speaker has no power to suspend a Member of
Parliament. Parliament only has that power as provided under Order 40(4).
The Speaker is not Parliament. Parliament is composed of all Members of
Parliament, currently there are 52 Members.
The Speaker is an officer of
the Parliament and he has important functions and responsibilities. The
Speaker is responsible
for the organisation of the Parliamentary work, in
particular summoning Parliament to hold its sessions. He presides at
sittings of Parliament and is responsible to maintain order in Parliament,
when Parliament sits. When the Speaker presides
at the sittings, he
determines the order of intervention of the Members who speak, controls the
right to speak. The Speaker
has also the right to close or stop the debate
and/or discussion and maintain the order in Parliament as provided under
Order 40(1), (2) and (3). The Speaker is responsible for the security in
Parliament and represents Parliament before the
Courts of law.
ass="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The misinterpretation and
misapplication of Standing Order 40(2)(c)(e) had then then the effect of
infringing the rights
of the 6 Petitioners:
(1) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
span>to lawfully and legitimately exercise their lawful duties and
responsibilities as duly elected represents of eoplehe
Republ Vanuatu in accordance with tith the lahe laws anws and Cond Constitution of the
Republic of Vanuatu;
(2) & p; &nsp; &nsp; ;&nbpp; &n sp;
to theo the protection of the law, freedom of expression and equal
treatment under the law or administrative action [Article
5(1)(d), (g) and
of thstitu.
As to the submission that the
First Respondent Speaker failed to provide to the six (6) suspended members,
an opportunity
to be heard or no reasons provided to them, is rejected. The
right to be heard or the right to be informed of the reasons of
the
suspension before the Speaker suspended the 6 members, is governed by
Standing Orders, and while the six (6) members
should have been given the
opportunity to have their say or be informed of the reasons of their
suspension does not go
to the validity of the Parliament proceedings. In any
event, the Court cannot enquire into that matter.
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In this case, the suspe of
the six (6) Petitioners on 7 May 2001 is invalid,alid, void and of no effect.
B. &  ClosiClosing of the First Extraordinary Session of Parliament
1. &  /span/span>SubmiSubmissions of the Petitioner
span><
The Petitioners allthat
the first extra ordinary session of Parliament went was not properly closed
according to law,
as there was no quorum.
They submitted also that the
quorum of Parliament is half plus which is twenty-seven (27) (27) members of
Parliament.
He said that when the Speaker closed the first extra ordinary
session of Parliament, there were only twenty members plus the
Speaker
himself present in the chambers. Since there was no quorum, the Speaker
should not have closed the first extra
ordinary session of Parliament.
They further submitted that on
7 May 2001 when the Speaker suspendepended the six members, twenty other members
on government
side have walked out from the Parliament Chamber. The Speaker
proceed and continued on with the proceeding after they walked
out and Hon.
Willie Ollie Varasmaite MP who was the only member on government side raised
the point of quorum. When the
Speaker asked the Hon. Varasmaite about what
happened to the government business or government bills he replied him
saying
that the leader of the government business was among those whom he
(Speaker) just suspended and ordered to leave the Parliament.
Hon. Willie
Varasmaite left the chambers after he replied the Speaker.
<
Despite the walking out of the
members of the government side, the Speaker continued on with the sitting.
He has allowed
and sought Hon. Sato Kilman and Hon. Willie Jimmy to give
their views of the issue of quorum. Hon. Willie Jimmy referred to
Standing
Order 17 of the Parliament and said that order of business of the day has
been decided already and that the
Speaker suspended six members only and the
twenty-one (21) members should not have walked out. He said, since they
decided
to walk out, the Speaker should continue with the sitting and close
the first extra ordinary session and call the second extra
ordinary session.
It is finally said for the
Petitioners that from the Speaker’s evidence he saie said that he has sought
advice from 3
people; Clerk of Parliament, Hon. Sato Kilman and Hon. Willie
Jimmy. The statement of the Speaker was typed and prepared for
3
May 2001 and altered in handwriting to 7 May 2001. The Speaker conceded and
agreed to this. He said on 3 May 2001 there
was no quorum.
lass=lass="MsoNormal" style="text-align: justify; text-indent: -18.0pt; margin-left: 18.0pt; margin-top: 1; margin-bottom:
1">
&nnbsp;nbs & Ssp; Ssp; Subm Submissions of
the Respondent
The Respondents submitted that
the First Extra Ordinary Session of Parliament ment was properly closed by the
Speaker
on 7 May 2001.
They further submitted that the
Speaker properd legally convened the Firs First Extra Ordinary Session and
the notice
and the list of items to be discussed at Session was in order.
However, there is dispute whether the Speaker was properly and
legally
closed the First Extra Ordinary Session. It was submitted that the Speaker
had properly and legally closed the
Session on the following basis:
class="Mso="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom:
1">
(i) & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;&
The CThe Clerk of Parliament advised the Speaker during the five minutes
break following the walk out of twenty one members
on the Government side,
the right ha the , meaere was no m no memberember from from the right side
of the House to introduce
business before the House.
(ii) & p; &nsp; &nsp; ;&nbpp; &nnsp;&
sp;
span>Member of Parliament Willie Oli Varasmaite was out of order pursuant
to Standing Order 38 which provides among other things
that “If it own
at ane that a quorum is pres present,sent, it s it shall not be in order to draw the
attention of the Speaker
to the absence of quorum until after the end of 1
hour from that time”. Therefore, Hon. Varasmaite’s intervention should have
been made 1 hour afterwards, and the fact that he made his statement to the
alleged lack of quorum misled the Speaker
into making a hasty and
ill-advised decision.
(iii) p;&nssp; p; &nbp; &nbp;
(iv) &&nsp;;&nspp;&nssp;
<The Speaker also said in his evidence that in his view when a member
of Parliament is suspended from Parliament his or her absence
from
Parliamentary proceedings pursuant to the suion don an
groungrounds fods for the suspension means that the
suspended member is not included
in the calculation or estimation of the quorum. Effectively this means that
when the
Speaker suspended the six members the number of members to be
included in the estimation of the quorum for Parliament dropped
from fifty
two (52) members of Parliament (the total Constituent of Parliament) down to
forty six (46). On that basis
the twenty five (25) members of Parliament who
remained inside of the Parliament chambers following the walk out of 21
members on government side and suspension of six members did form a quorum.
(v) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Finally, the counsel for the
Respondents submit that there is nothinothing preventing the government side from
introducing
the same list of matters in another extra ordinary session of
the present Parliament given the fact the twenty seven members
of Parliament
still form the majority government of the country.
lang="EN-GB" style="font-size: 12.0pt">3. Considerationshe
Cou Court
When Parliament
assembled on 7 May 2001, all 52 Members of Parliawere present. When the
Speaker suspended the six
Members/Petitioners, and ordered them to leave
Parliament and its precincts, twenty (20) other Members on Government side
walked out from the Parliament Chambers in solidarity with the suspended
members and to protest against the decision of
the Speaker which is unlawful
and has the effect of contravening the rights of the 6 members. The Speaker
knew this as
he was presiding at the sitting of 7 May 2001. He then
proceeded and continued on with the proceedings after 20 Members walked
out.
Hon. Willie Varasmaite MP who was the only Government Member of Parliament,
raised the issue of quorum and informed
the Speaker that the Leader of the
Government business was among those whom the Speaker had suspended and
ordered to
leave Parliament. Hon. MP Varasmaite, then, left Parliament.
After this, 25 MPs including the Speaker were present in Parliament.
class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Article 21(4) of the
Constitution provides that:
“Unless otherwise provided
in the Constitutiotution, the quorum shall be two thirds of the Members of
Parliament. If there
is no such quorum at the first sitting in any session,
Parliament shall meet 3 days later, and a simple majority of members
shall
then constitute a quorum.”
Parliament was sed for the
First Extraordinary Session of 2001 on 3 Mn 3 May 2001. Some Members of
Parliament boycotted
the Session. The Speaker adjourned it to 7 May 2001 in
accordance with Article 21(4) of the Constitution. On 7 May 2001, the
quorum
is a simple majority of members which is half of the total members present
plus one (1): [52:2=26+1=27 members].
The quorum of Parliament is
half plus one, which is 27 Members of Parliament.
As the evidence shows, despite
the walking out of the Members of the Government side, the Speaker continued
on with sitting.
He adjournedsitting for 5
minutes and sought advice from the cler clerk and other Members of Parliament who
were present,
namely Sato Kilman and Willie Jimmy on the issue of quorum.
class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
After the short break
minutes, the Speaker and 24 other Members of Parliameliament went into the
Parliament. At that point
in time, the number of Members in Parliament was
25 including the Speaker. It is common ground, the Speaker knew this as he
sought advice on that very issue of quorum. Further, in his evidence while
cross-examined, he admitted to the effect
that on 7 May 2001, after the
short adjournment of Parliament, Parliament was not quorate and Parliament
should not proceed
with any business.
However, on 7 May 2001, despite
his knowledge of the la quorum, after the suspensipension of the 6 members
and the walking
out of Parliament of 20 other members, he decided to close
the First Extraordinary Session of Parliament of 2001 as he so did.
He
further made an announcement that he will call the Second Extraordinary
session of Parliament of 2001. After the short
adjournment of 5 minutes,
Parliament resumed again but there was no quorum.
The Respondents’ submissions
the estimation of quorum for Parliament on 7 May 2001, dropperopped from
fifty two (52) Members
of Parliament down to forty six (46) so that twenty
five (25) members who remained in Parliament Chambers following the walk
out
of 21 members on Government side and suspension of six (6) members did form
quorum cannot stand and is rejected.
The decision of the Speaker to close
the First Extraordinary Session of Parliament of 2001 was unlawful and
unconstitutional
because it was contrary to Article 21(4) of the
Constitution as there was no quorum.
Court of Appeal in
Re Maxime Carlot v. A.G. A.C. No.4 of 1988, and also also C.A.
Barak Sope & Ors v. AG & Ors, Appeal Case No.3 of 1988. Van.L.R. pp.
405 to 410].
Consequently, it follows that
as there was no quorum at the part of the sitt sitting after the short
adjournment, on 7
May 2001, all business which included, the closing of the
First Extraordinary Session of Parliament of 2001 and the announcement
by
the Speaker to call a Second Extraordinary Session of Parliament, were
invalid.
The decision of the Speaker on
7 May 2001 to close the First Extraordinary Session of 2001, when Parliament
is not quorate
has the effect of denying to the Petitioners as lawfully
elected Members of Parliament the following constitutional rights:
(1) &&nsp;;&nspp;&nssp;
p;
to lawfully and legitimately exercise their lawful duties and
responsibilities as dulyted rentatof thple o
ublic of Vanuatu
in accordancrdance wite with the laws and Constitution of the
he
R Republepublic ofic of Vanuatu;
(2) &nbbsp;& &nsp; &nsp; &nnbp;&
n>rightsights guaraguaranteed under the provisions of paragraphs (d), (g) and (k)
of sub-article (1) of Article 5 of the Constitution;
(3) ;&nbssp; &nsp; &nsp; p; &nnsp;&
sp;
span>right under Article 21(2) of the Constitu
(4) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
span>right guaranteed under the provisions of Article 22(2) of the
Constitution;
(5) &nnbsp;; &nsp; &nsp; &&nbp;;
an>to pero permit Pait Parliament to meet and continue to meet when Parliament was
quorauch
ad/or ion bin coention of Artic 21(4) of the Constitution;
>
p class="Mso="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom:
1" (6) p; &nnsp;&&nsp; &nbp; &nbbp;&n p;
rightright guaranteed under the provisions of Article 27( the Consion;
(7) ;&nspp;&nssp; p; &nbp;
p;
Rig exeo exercise its lawful and constitutional duty, function and/or
responsibility.
The cases in support
s follows: Hon. Edward Natapei and Ors v. Hon. Paul Raul Ren Tari,
Speaker, Civil Case No.35 of 2001 (Supreme Court judgment),
Hon. Maxime Carlot Korman MP & Ors v. Hon. Edward Natapei MP, Speaker & Ors,
Civil Appeal Case No.168 of 1997 – Van Appeal Case No.8 of 1997.
C. &nbbsp;
Summons of Notice of the Second Extraordinary Session
>
1. ;&nbs SubmiSubmissions of the Petitioners
nbsp;
The Petitioners
claimed that calling of the second ordinary session of Parliaarliament was
not proper since the first
extra ordinary session of Parliament still alive
and on.
The counsel for the Petitioners
submitted that the Speaker aned on 7 May 2001, that he w he would call the
Second Extra
Ordinary Session of Parliament on 8 May 2001. Written notice of
the Second Extra Ordinary Session was issued on 8 May 2001.
In Hon. IBongnem’s
affidavit, it is clear that the Speaker hasr has signed the notice of the Second
Extra Ordinary Session
on 7 May 2001 (see Annexure “4”). Annexures “5” and
“6” are summons of the Clerk of Parliament issued on 8 May 2001. Annexure
“7” is the list of matters for the second Extra Ordinary session and
Annexure “8” is the two motions. Annexure “10” is
the motion of no
confidence against the Prime Minister Edward Natapei.
The counsel for the Petitioners
mitted that the Speaker was wrong to call the Second Extra xtra Ordinary
Session for the
Opposition to put a vote of no confidence against the
government who have the majority.
2. &nbbsp;&
Submissions by the Respondents
&nb"> /p>
It is submitted for
the Respondents in subs that the Speaker has the pthe power to summon
Parliament in the Second Extraordinary
Session in accordance with Article
21(2) of the Constitution. The Summons of Notice of the Second Extraordinary
Session
was valid.
3. &n ConsiConsiderations by the Court
The Consion
provides by Article 21(2) that Parliament may meet in extraordinary session
at the request of the majority
of its members, the Speaker or the Prime
Minister.
It is clear that thaker
has the right/power to request Parliament to meeo meet in an extraordinary
session.
However, in this case while the
subject matter of the First ExtraExtraordinary Session of Parliament are pending
before
the Courts on 7 May 2001, the Speaker summons Parliament for the
Second Extraordinary Session of Parliament of 2001 and Notices
were signed
by the Speaker on 7 May 2001.
"A question shall not not refer
to any matter on which a judicial decision is pending or reflect on the
decision
of a Court of law”
and this includes written motion in accordance with Standing Order 35(3).
<
Can the Court fere with
the Summons of Notice of the Second Extraortraordinary Session of 2001 issued by
the Speaker?
lass="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The general rule is that
Parliament is not subject to direction by the Courts 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 Court has a
(constitutional)
duty to interfere “if the constitutionally required
process of law-making is not properly carried out”. [Court of Appeal,
decision No.7 of 1996, Attorney General and Natapei v. Willie Jimmy
and Barak Sope & Ors].
I will add to the
e principle that where there is no breach of the Constitutiitution, the
Supreme Court has no power to
interfere into the validity of the
Parliament’s internal proceedings or the actions of the Speaker in the
proceedings
of Parliament. However, where there is a breach of a provision
of the Constitution or the infringement of a constitutional
right guaranteed
and protected under the Constitution, the Supreme Court is then duty bound
by the Constitution to interfere
and enforce the breach of the
constitutional provision (Article 53) or the constitutional right (Article
6). [See judgment
of the Supreme Court in Hon. Edward Natapei & Ors v.
Hon. Paul Ren Tari, Speaker of Parliament, Civil Case No.35 of 2001
(judgment of 12 April 2001) at p.12].
The evidence shoat on 7
May 2001 there is no breach of Order 40(2)(c)2)(c)(e) as the Speaker admitted,
none of the Petitioners
say anything or do anything wrong or disturb him on
7 May 2001 at that sitting of Parliament.
The evidence also shows that
the two (2) Motions were moved to debate aate and decide on the breaches of
Article 22(2)
and Article 27(1) and (2) of the Constitution, and the
subsequent suspensions of all the 27 Petitioners.
It is fundamentally
important to bear in mind that Parliament has no power to interpret and
decide on the breaches of
the Constitution. If the Parliament does so, its
decision or action is ultra vires.
The interpretation
and applicationhe Constitution (by granting relief) are self-evidently
y
not a function of Parliament
but the responsibilities entrusted to the
Supreme Court by the people of this country through the Constitution. [See
Supreme Court judgment of 6 April 2001 – Civil Case 35 of 2001 – Hon.
Edward Natapei & Ors v. Hon. Paul Ren Tari, Speaker].
The 27 Petitioners
apply to the Supreme Court because they say that by the acte action of the Second
and Third Respondents,
their constitutional rights are likely to be
infringed (Article 6(1)). Although the First Respondent says in his evidence
that if the Petitioners are not happy with his decision, they must challenge
by motion under Standing Orders of Parliament,
instead of going to the
Court, the evidence shows also and it is more probable than not that, by the
conduct of the Speaker
and the two (2) Deputy Speakers and the
misinterpretation by the Speaker of the Standing Orders of Parliament about
his
role in the sitting of Parliament, it will be difficult or impossible
for the Petitioners to get justice according to law.
Without the Court’s
intervention the effect of the two motions would be unconstitutional because
by doing so, they will
affect the constitutional rights of the 27
Petitioners in Parliament.
It was wrong for the
Speaker to call the Second Extraordinary Session of Parliaarliament for the
Opposition to put a vote
of no confidence against the Government who has the
majority. This was contrary to Articles 22(2) and 43(2) of the Constitution
in the circumstance of this case. The majority of Members of Parliament have
the right to put a vote of no confidence
against the Government (Article
43(2) of the Constitution and request to debate the motion in an
Extraordinary Session.
(Vanuatu Court of Appeal judgement, Appeal Case No. 7
of 1996 – Attorney General & Edward Natapei v. Willie Jimmy & Ors).
But it was wrong for the Speaker to do so as he did in this case.
D. Privileges/Immunity an t the Jurisdiction of the Court to reinstate suspended Member of Parliament.
<
1. &nnbsp;;
Submission of the Petitioner on Privilege/Immunity
In respect of Privileges and
Immunities, the counsel for the Petitioners said said that the Speaker has no
immunity. The
Member of Parliament including Hon. Paul Ren Tari as a Member
of Parliament has equal rights. The Hon. Tari as Speaker has
no special
immunities and privileges. If he said he has any, he is wrong.
He said that Hon. Paul Ren Tari
as Member of Parliament has privileges anes and immunities. It is wrong for the
Speaker
of Parliament to use the Parliament wrongly. He has a duty to look
after the Parliament and to use Parliament to make decision.
As the Speaker,
he should not hide behind Article 27 of the Constitution for his actions,
which is totally wrong and
irresponsible.
The Counsel for the Petitioner
hised that the Court of Appeal had given an option for the Sthe Speaker in
his appeal against
ruling of Supreme Court in Civil Case 35 of 2001. He was
represented by a lawyer and knows what to do but chose not to follow.
Instead, on 3 May 2001, he prepared a statement to suspend the six members
and on the 7 May 2001 has suspended them.
When the Petitioners filed a
petition by virtue of Article 6(1) (2) and Article 53 (1)(2) against the
Speaker for his
unlawful actions, he said that court could not hear the
matter because he is protected by Article 27 of the Constitution.
The statement made by the
Speaker was ped and signed on 3 May 2001 2001, which was 4 days earlier. The
Speaker said that
it was his first opportunity to take the action against
the six (6) suspended members. He said that they could not bring action
against him in Court because he was protected by the immunity under Article
27, which is wrong. He further said that,
there is no separation of powers.
The counsel for the Petitioners said that Speaker was totally wrong and
irresponsible
in that regard.
lass="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The counsel for the Petitioners
said that the Speaker as the presiding officer who has ultimate authority to
rule on Standing
Orders should make a ruling when he found and knew that
there was no quorum on 7 May 2001. Instead, he ruled and decided to
close
the First Extra Ordinary Session and called the Second Extra Ordinary
Session of Parliament with hope that the
members of Parliament would receive
their papers on 8 May 2001.
2. p;&nb Submissions of the Respondents on Jurisdiction of the Supreme Court
to reinstate suspended Members of Parliament.
ass="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The counsel for the Respos
submitted that if the court finds that the ruling oing of the Speaker was not in
accordance
with the Constitution or the Standing Orders, the court could not
reinstate them because the court cannot interfere with the
decisions of the
Speaker in this respect. Unless the Constitution and or the Standing Orders
or any other law of the
Republic of Vanuatu clearly states that the court
can so intervene the court should never interfere with the ruling of the
Speaker. This is because Standing Order 45 states that the opinion or the
decision of the Speaker as to any question
related to the application or
interpretation of the Standing Orders cannot be challenged except on a
written motion made
pursuant to Order 35.
The counsel for the Respondents
submitted that the Speaker omplied in all respects wits with the Standing
Orders in relation
to suspension of the six (6) members of Parliament. He
said that their suspension (six members) was made pursuant to Standing
Orders 40(2) as previously mentioned. If the court were to find that the
Speaker did not comply in all respect with the
Standing Orders of Parliament
in relation to suspension of the six (6) members, the court cannot reinstate
them because
the court would be unable to enforce its ruling in that respect
because of the wide and strict provisions of Article 27(1)
of the
Constitution.
3. &nbs Consideratierations by the Court
The questiobe
determined by the Court is twofold:
>
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp;
<Is thekSpeaker of Parliament covered/immune under Article 27(1) of
the Constitution for his uul ac?
(b) &nbbsp; &nbbsp; &nbp; &nbp;
ef thwer to r to question 1 is NO, then, can the Court intervene to
correct the unlawful actions of the Speaker when called
upon to do so by the
Members of Parliament who are ted bh actspan>
Article 27(1) of the
Constitution provides:
i>“(1) & No
No
member of Parliament may be arrested, detained, prosecuted or proceeded
against in respect of opinions
given or votes cast by him in Parliament in
tercishis o.”
class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The submissions on the question
of privilege/immes of the Members of Parliaarliament are based on common law
(English)
approach.
p class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
It is important to have a brief
history of the development of Parliamentary priy privilege in the United Kingdom
in order
to appreciate the existence, extent and exercise of the privilege
of Parliament and its members in the Republic of Vanuatu.
In the United Kingdom,
privilege evolved from a history nflict between the Houses oses of
Parliament, the Crown and the
Courts. In essence, it was a struggle for
independence as between the different branches of government. In earlier
times,
particularly prior to 1640, the Crown and the Courts showed no
hesitation to intrude into the sphere of the Houses of Parliament.
Nor did
the Houses of Parliament hesitate to intrude into the sphere of the Courts.
For example, in 1629, Charles I had
Sir John Eliot and two other members
charged and imprisoned for sedition for words spoken in debate in the House.
For
their part, the Houses of Parliament often used their penal jurisdiction
to imprison sheriffs, magistrates and even judges
of the Superior Court – as
in 1689 when two (2) judges of King’s Bench were imprisoned for their
decision in Jay v. Tophan (14 East 102, 104 E.R. 540).
Initially, the Houses simply
claimed privilege on their ohalf. They did not request uest its recognition
by the Crown
in statute, or by the Courts in common law. Thus parliamentary
privileges were in a sense outside the law, or a law unto themselves.
It was
referred to as part of the lex parliamentis or the law of the parliament,
not as part of statute or common law.
When a member was arrested in
violation of privilege, the House would not turn to Crown or Courts for his
release. It
would not make an application for habeas corpus before the
Courts and argue it on the basis of a doctrine of privilege, it
would simply
send the Sergeant-at-Arms with the ceremonial mace to the prison to demand
the member’s release on its own
authority.
Over time, with some
acquiescence on all sides, the exercise of prif privilege became less
confrontational. With the acquiescence
of the Crown, much of the law
relating to privilege was codified in statute. For example, the ninth
article of the English
Bill of Rights of 1689 provided that “the freedom of
speech and debates or proceedings in Parliament ought not to be impeached
or
questioned in any Court or Place out of Parliament.” The Courts conceded
some jurisdiction to the Houses of Parliament
through the common law. In
turn, the Houses conceded some jurisdiction to the Courts, appearing before
them pleading
privilege and trusting them to dismiss an inappropriate claim
on that basis. Finally, in 1704, the commons undertook not to
claim any
privilege in the future not already established by custom and usage. For a
more detailed account of this historical
evolution, see Erskine May’s
Treatise on the law, Privileges, Proceedings and usage of Parliament (21st
ed. 1989), at pp. 69-83.
p class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Thus, privilege in the United
Kingdom currently finds its source in the lex Parx Parliamentis, the common law
and statute
law.
The same cannot be said of
parliamentary privilege aseveloped in the Republic ofic of Vanuatu.
In Vanuatu, parliamentary
prges are derived from the Constitution (Article 27). Parliamrliament is a
creature of the Constitution
and its powers/rights including privileges are
created by the Constitution and their existence, and exercise are subject to
the Constitution as it is the supreme law of the Republic of Vanuatu
(Article 2).
the inherent powers of
Parliament of Vanuatu are not broad as those of the Houses of s of Parliament of
the United Kingdom
for three (3) reasons. First, the relatively shorter
histories of such bodies had not given rise to a similar claim by way
of
custom and usage. Second, the same powers were not perceived to be justified
by necessity. The last but not least,
unlike the traditional British concept
of the judicial role, Vanuatu has a written Constitution which inevitably
enhance
judicial authority by instituting a power of judicial review
[Articles 6(1)(2); 16(4) and 53(1) (2) of the Constitution], because
it
falls to the judges to determine questions which arise as to the exercise of
constitutional functions and, in doing
so, to interpret the constitutional
provisions. This role is entrusted to the Supreme Court of Vanuatu.
Therefore, the
“supremacy” (or even, misleading, “sovereignty”) of
Parliament has long been one of the doctrines offered by British
constitutional lawyers, including Dicey, could not survive transplantation
into the political order of a new state such as
the Republic of Vanuatu,
established by a written Constitution which imposed a variety of limitations
upon the legislative
power: for example by enforceable guarantees of
fundamental rights (Article 6) and effective enforcement of the provisions
of the Constitution (Article 53) and the control of constitutionality of the
legislative functions(Article 16(4)) and
internal proceedings in the light
of the constitutional rights provisions.
The case (English) of
Stockdale v. Hansard [(1839), 9 Ad.4 e.1, 112 E.R. 1112],
constitutes a major turning point in respect to the claims to jurisdiction
made
in the name of privilege by the House of Commons. In that case, Lord
Denman CJ found first that the House’s Contention that
its orders could not
be questioned was untenable. To find otherwise would be to hold that the
House of Commons is supreme
when only Parliament is supreme. Thus when a
case involving privilege is brought before them, the Courts must look at the
grievance of the plaintiff to determine if it is indeed a matter of
privilege. Otherwise, the House could bring any matter
within its
jurisdiction simply by declaring it to be so. If, upon examination, the
subject matter does fall within the
jurisdiction of the House, then the
Courts cannot question its judgements. If, however, a claim of privilege is
not valid,
then the Courts can decline to enforce it. In that particular
case, Lord Denman CJ embarked on that enquiry and determined
that the
House’s claim that it had the privilege of publishing defamatory material
with immunity was not proven.
It follows from the above and
subsequent English case law that Courts will enquire into the existence and
extent of privileges,
but not its exercise. This rule does not always
provide a clear guide, however, as the existence, extent and exercise of
privilege tend to overlap (example of free speech). Another general rule of
the English case law is that Courts are apt
to look more closely at cases in
which claims to privilege have an impact on persons outside the Parliament
than at those
which involve matters entirely internal to the Parliament.
Here, the rule is not clear either though.
In the light of thve two
(2) general rules, the position of the Courts urts in Vanuatu derives from the
Constitution itself
(Article 6 and 53). Therefore, in my view, the Courts
will enquire into the existence, extent of the privilege and also its
exercise this, irrespective of whether the issue of privilege is about
members of Parliament or persons outside Parliament
and/or internal
proceedings of Parliament.
The judgment of the Vanuatu Court of Appeal in Attorney General & Nipake Edwe Edward Natapei v. Willie
Jimmy & Others, Appeal Case No.7 of 1996 is in support of the above
view and the Court of Appeal held (at p.10):
“We do not believe that the
technicalities of the common law, and the limitations upon the English
Courts’ power
to direct the King which for good and sufficient historical
reasons those Courts recognise, have any relevance to the proper
interpretation of the Constitution of Vanuatu. The powers expressly given to
the Courts by Articles 6 and 53 to enforce
the provisions of the
Constitution makes reference to other approaches unhelpful. It would be
wrong in principle to limit
the plain terms of those articles by reference
to the ancient history of a very different society, and on that account to
stultify the intention of the Constitution that the Court should play a
significant role in supporting the rights created
by the Constitution.”
Applied in this case the
evidence is overwhelmingly against the Respondents.
While the Petition in the
present case were placed before the Court, the Court issued Interim Orders
to maintain the status
quo by keeping the First Extraordinary Session of
Parliament still alive and on and reinstated the six (6) suspended
Petitioners pending the outcome of the merit of the case.
Two motions were listed among
other matters to be placed before the Parliament in its Second Extraordinary
Session of
2001. The two motions are about the same issues which are pending
before the Supreme Court. The purpose of the two (2) motions
were for the
Parliament to debate and decide on the breaches of Articles 22(2) and 27(1),
(2) of the Constitution and
also the consequent suspensions of all 27
Members of Parliament including the 6 Members of Parliament unlawfully
suspended
by the Speaker on 7 May 2001. The Speaker issued a statement in
Parliament on 7 May 2001 and suspended six (6) Members of Parliament
because
he was not happy that the said members issued constitutional Petition
against his decisions and also the First
Respondent is not happy about the
outcome of the Civil Case No.35 of 2001 against him. The Court of Appeal
advised him
to file a constitutional Petition if he wishes to pursue his
claim, which he did.
class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
In the present case, the
Petition was filed on 7 001 while the matter is pens pending before the
Court on the question
of the validity of the action of the Speaker to
suspend the 6 Members of Parliament, and despite the provision of Standing
Orders 34(2) which is also extended and applied to written motions under
Order 35(3) of Standing Orders of Parliament,
the First Respondent signed
the Notice of the Second Extraordinary Session of Parliament of 2001 on 7
May 2001. The 27
Petitioners constitute/represent the majority Government in
Parliament on 7 May 2001. The direct effect of this exercise is
to oust the
majority Government and for Parliament to elect a new Prime Minister. As it
is said above, the Second Extraordinary
Session of Parliament was summoned
at the request of the Speaker of Parliament, the First Respondent with the
support
and assistance of the First and Second Deputy Speakers (Second and
Third Respondents).
The whole exe was made by
the First Respondent/Speaker and his twis two (2) Deputy Speakers (second and
third Respondents).
This is so as it transpired on the Summons to convene
Parliament for the Second Extraordinary Session for 2001 that the said
Summons was dated 3 May 2001 but hand written corrections made to cross the
date 3 replacing by (7 May 2001) and this
4 days earlier although the
Summons was signed by the First Respondent on 7 May 2001.
Is the Speaker covered under
Article 27(1) of the Constitution?
p class="Mso="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
My answer to this question is
in the negative (No).
All Memof Parliament
including Hon. Paul Ren Tari as a MembeMember of Parliament have equal rights (as
the First Respondent
conceded to this effect during the hearing of the case
before this Court). The Hon. Paul Ren Tari as Speaker has no special
immunities and privileges.
The statement read by the
Speaker ng to the suspensions of thof the 6 members of Parliament, amount to
an opinion given
by the Speaker on 7 May 2001. However, that
statement/opinion was not made in the exercise of legislative function of
Parliament for the Speaker as a Member of Parliament to be protected under
Article 27(1) of the Constitution.
The First Respondent Speaker
cannoim protection under Articleticle 27(1) of the Constitution. This is
equally so for the
Second and Third Respondents.
If that interpretation is
wrong, because the parliamentary privilege is provided under Article 27(1)
of the Constitution,
then, the rights provisions under Article 5 of the
Constitution must prevail if they are in conflict with Article 27(1) of
the
Constitution.
XI - THE CONSTITUTIONAL
QUESTIONS (ISSUES)
I would answer the
constitutional questions (issues) modified in light of these reasons as
follows:
<
Issues for Petitioners
class="MsoNormal" style="tee="text-align: justify; margin-top: 1; margin-bottom: 1">
1) &&nsp;;&nspp;&nssp; &nbp;
The answer to the first
constitutional question is NO. Parliament only has.
2)&t;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp;
If the a to r to question 1 is yes, in what circumstances does the
Constitupermi (R1)xercich po/span
There is no need for me to
answer ques2 in the light of my answernswer to question 1.
3) &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
<Did the First Respondent comply in all respects with tandi O of Pment latiothe six (6ition/span>
4) p;&nssp; p; &nbp; &nbp; ;
p
(a) p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp;
<right to attend the First Extraordinary Session of Parliament of year
2001;
>
(b) &nbssp; &nbssp; &nbp;
right ko take part in the proceeding s of Parliament;
(c) ; &nnsp;&&nsp;;&nbp; &nbp; &n p;
right to exto except and be afforded protection of the law;
(d) & p; &nsp; &nsp; ;&nbpp; &n sp;
right ight to a fair hearing before any discipl acti taken
against any of the six (6) Petitioners.
The answers to questiore
as follows:span>
§ ;&nspp;&nssp;
4(a) - yes;
>
§
4(b) - yes;
1">
§ p;&nssp;
4(c) - yes;
">
§
4(d) - yes.
nbsp;
5) ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
At what poin point of the proceedings on 7 May 2001 was Parliament quorate?
The answer to qun 5 is: at
the beginning of the sitting of 7 May 2001 2001 until the walking out of 20
Members of Parliament
from Parliament but before the closing of Parliament.
6) p; &nsp; &nbbsp; &nbbsp;
<span>At what point of the proceedings, on the 7 May 2001, Pment uoratpan>
The answer to question 6 is:
when the Speaker closed the First Extraordinary Session of Parliament on 7
May 2001, Parliament
was not quorate.
7) & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
<Can ths First Respondent close the First Extraordinary Session 2001
when Parliament still has business attending?
The answer to question 7 is:
NO.
8) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
span/Can the First Rest Respondent close Parliament when Parliament was not
quorate?
The answer to question:
NO.
&nbs> &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Ce Seco Second Respondent and the Third Respondent place before
Parliament theons 12 andhe circumss givspan>
The answer to question 9 is:
NO.
<
10) style="font:7.0pt "Tiot;Times New Roman""> &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &
sp; Can than the First Respondent call a Second Extraordinary Session of
Parliament and list therein, an opposition mofor a of
No-confidence i Prime Minster?
p>
(a) &&nsp;;&nspp;&nssp; &nbp;
At the rt ofst of the Speaker, my answer is: No. (as in this case).
ass="rmal"e="teign: fy; tndent: -36.0pt; margin-left: 108.0108.0pt; margin-top: 1; margin-bottom: 1">: 1">
(b) ;&nbssp; &nsp; &nsp; p; &nnsp;&
sp;
span>At the request of the majority of Members of Parliament: yes but
(that is not the case here – quiteopposs in(ove).
Issues for the Respondents
p class="Mso="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom:
1" 1) ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
Suspension oion of the Petitioners-
p clasoNorstylet-aliustify; margin-left: 36.0pt; margin-top: top: 1; ma1; margin-rgin-bottobottom: 1"m: 1">
>
(a) &nnbsp;; &nsp; &nsp; &&nbp;; &n sp;
span>Can than the Speaker suspend Members of Paent farliament and
how?
(b) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp;
Can suchensipensions be challenged? Hspan>
pan lEN-GBle="fon="font-sizt-size: 12e: 12.0pt">(c) & &nsp; &nbssp;
/span>Does toes the suse suspension amount to breach of Constitution? How?
">
I answer to question 1 as
follows:
<
§ p; &nsp;
n>1(a) - No.
Parliamnly can (Standing Order 40(4)).
§ p;&nbbsp;&nsp; &nsp;
1(b) - yes. As
provided under Articles 6 and 53 of the Constitution if Standing Orders o Paent asinterpretedreted and misapplied
as in this case.
§
1(c) – yes
because the effect of the suspensifringe contionahts. WhenSpeaksintes and misapplies the the StandStanding Oing
Ordersrders of
of
ParliParliamentament, the effect of such misinterpretation and misapplication of the
Standing
Orders of Parliament which results in suspension affects the
constitutional rights of a Member of Parliament in Parliament.
<
2) &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
Issue of Fiof First Extraordinary Session of Parliament of 2001-
(a) & p; &nsp; &nsp; ;&nbpp; &nnsp;&
sp;
span>Was it properly convened?
1">
(b) &&nsp;;&nspp;&nssp;
p;
Was it properly closed?
Ift">If yes yes – why– why and how?
If not – why not?
I answer the question 2 in the
following way:
§ ; &n sp;
pan>span>2(a) - yes.
§ &nbbsp;& &nsp; &nsp;
2(b) - No.
Reason: Lacquorupan>
3) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n span>Quashiuashing of suspension by the Courts-
>
<
(a) & p;&nssp;&nsp; &nsp; ;&nbpp; &n sp;
Can than the Courts/the Judiciary intervene to quash the First
Respondent’s ruling to suspend?
If yes – why and how?
If no – why not?
I answer to question 3 as
follows:
p>
<
§
n/spapa3(a) - yes.
Reasons: The misinterpretation of Standing Orders 40 by t he Speaker affects
the constitul rigf thetitioners.
The Courts have the pthe power ower to
to
quash the rulings of the First Respondent/Speaker (Articles 6 and 53 of the
Constitution).
4) &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Ce Cour Courts/the Judiciary intervene to direct Parnt to conor tonvenettingting or Se of the House?
ass="Mso="MsoNormal" style="text-align: justify; margin-left: 72.0pt; margin-right: -4.5pt; margin-top: 1; margin-bottom:
1">
If yes – why and how?
If no - why not?
ass="Mso="MsoNormal" style="text-align: justify; margin-left: 72.0pt; margin-right: -4.5pt; margin-top: 1; margin-bottom:
1">
The answer to question 4 is:
yes if the the closing of Parliament is done unlawfully as in this case.
&nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
M No.1
p classclassclass="Mso="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 108.0pt; margin-right: -4.5pt;
margin-top: 1; margin-bottom: 1">
(a) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
Can the Firs First Respondent suspend twenty seven (27) Members of
Parliamenpan>
(b) ;&nbssp; &nsp; &nbs; &nbbp;&n p;
If thIf the answer is yes – can such suspensions be engedan>
(c) &nnbsp;; &nsp; &nsp; &&nbp;; &n sp;
span>Do suco such proposed suspensions amount treachonstitution?
My answers to question (Motion No.1) are as fols follows:
span lang="EN-GB" style="font-size: 12.0pt; font-family: Wiy: Wingdings">§
5(a) - No. Only
Parliament can (Standing Order 40(4) and on lawful grounds.
§ &nnsp;&
sp; span/5(b) - Given my
answer to 5(a), it is not appropriate or necessary for manswe).
§
n/spapa5(c) – yes. They
will have the effect of denying the Petitioners their constitutional rights
if carrit as ed. Tghts of
the petitioners are bein being or g or likellikely
to be infringed (Article 6(1)). Parliament has no power to interpret and
decide on breaches of the Constitution which constitute the ground/basis for
subsequent suspension of the Petitioners
as intended in the 2 Motions.
span lang="EN-GB" style="font-size: 12.0pt">6) p;&nssp; p; &nbp; &nbp; ;
p
class="Mso="MsoNormal" style="text-align: justify; margin-left: 72.0pt; margin-right: -4.5pt; margin-top: 1; margin-bottom:
1">
My answers to question 6 are
the same as to question 5.
<
7) &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
Can the Coue Courts/the Judiciary interveneancelnvalithe
calli a Se of Pment which has been constitutiotutionallynally and and
prop properly erly summosummoned?
If yes – why and how?
If not – why not?
I answer question 7 in this
is
way:
In principle: No. But the
ci circumstances of this particular case require the intervention of the Courts
in order to
ensure that Parliament exercises its duties and responsibilities
in accordance with the Constitution. In the present case,
the answer is:
yes.
These are the reasons of the
Orders issued by the Court on 12 May 2001.
DATED at PORT-VILA, this
23rd DAY of OCTOBER, 200an>
BY THE COURT
class="MsoNormal" align="cgn="center" style="text-align:center">
LUNABEK Vincent
Chief Justice
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