Natapei v Tari No 1 [2001] VUSC 29; Civil Case 035 of 2001 (6 April 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Civil Jurisdiction
CIVIL CASE No.35 of 2001

p class="MsoNormal" aal" align="center" style="text-align:center">IN THE MATTER OF: ART: ARTICLES 2, 53(1) and (2) OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU (hereinafter referred to as “the Constitution”)

/p>

IN THE MATT MATTER OF: SECTION 218 AND 219 OF THE CRIMINAL PROCEDURE CODE ACT [CAP 136], as amended (hereinafter referred to as “the Act”)

BETWEEN:

HON. EDWARD NATAPEI, HON. SILAS HAKWA,
HON. REUBEN TITEK, HON. RIALUTH SERGE VOHOR,
HON. JOE BORMAL CARLO, HON. JACQUE SESE,
HON. CLEMENT LEO, HON. WILLIE POSEN, HON. DONALD K. MASIKEVANUA, HON. HENRI TAGA,
HON. SELA MOLISA, HON. JOSIAS MOLI, HON. JOE NATUMAN,
HON. JEAN ALLAIN MAHE, HON. ALLAN NAFUKI, HON. KORA MAKI,
HON. WILSON RAY ARU, HON. JIMMY IMBERT, HON. SAM DAN AVOCK,
HON. JIMMY NIKLAM, HON. PHILIP I. PASVU, HON. JOHN MORSEN WILLIE,
HON. WILLIE O. VARASMAITE, HON. DANIEL A. BANGTOR,
HON. GEORGE WELLS, HON. RAKORM FOSTER, HON. AMOS TITONGOA
Petitioners

AND:

HON. PAUL REN TARI,
Member of Parliament for Maewo Constituency and
Speaker of Parliament of the Republic of Vanuatu
Respondent

Coram: Chief Justice Lunabek

Counsels: Mr. Silas Hakwa & Ms Marie Hakwa for the Petitioners
Messrs John Malcolm & Ishmael Kalsakau for the Respondent

Date of hearing: 3 - 4 April 2001
Date of judgment: 6 April 2001

JUDGMENT

INTRODUCTION

Nature of the claim and relief sought

This is a Constitutional Petition. On 3 April 2001, 27 Members of Parliament (M.P.) filed a petition in the Supreme Court at Port-Vila, pursuant to the provisions of Articles 2, 53 of the Constitution and Sections 218 and 219 of the Criminal Procedure Code Act [CAP 136]. The respondent is Hon. Paul Ren Tari, the Speaker of the Parliament of the Republic of Vanuatu.

The petitioners claim:

1. Leave to apply for the Writs of mandamus and certiorari.

2. A declaration that the decision and/or ruling by the Respondent made on 3 April 2001 to prevent Parliament from debating and dealing with the Motion is invalid, void and of no effect.

3. A declaration that Parliament is still meeting in its First Ordinary Session in 2001 and that the decision made by the Respondent on 3 April 2001 to close Parliament’s First Ordinary Session in 2001 is invalid, void and/or of no effect.

4. Further and/or in the alternative an order directing the Respondent forthwith to re-convene Parliament and place before the Parliament the Motion so that Parliament can debate and deal with the Motion in accordance with the law and Standing Orders of Parliament.

5. Any other or further Orders as the Court shall deem fit.

6. Costs of and incidental to this petition.

The grounds of the petition are as contained in the petition. The petition is supported by two (2) affidavits filed respectively by Hon. Edward Natapei MP, Leader of the Opposition and Mr. Silas Hakwa MP, Deputy Leader of the Opposition. The Respondent filed an affidavit in response.

On 4 April 2001, both Counsels in accordance with the direction Orders issued by the Court on 3 April 2001, provided a common statement of facts and issues agreed and in dispute. Both counsels indicate that there is no need to cross-examine the deponents of the affidavits on disputed facts. They both agreed to waive immunity/privilege issue on the Motion. The Respondent undertakes to abide by the Orders of this Court.

CONCESSIONS MADE BY THE RESPONDENT

The respondent conceded that the facts as contained in the affidavit of Hon. Edward Natapei from paragraphs 1 to 11 are accepted. It is further conceded for the Respondent that he had the view that because of the filing of the Writ of Summons in Civil Case No.30 of 2001 (defamation case between Hon. Barak T. Sope and Others), the Motion of No Confidence is sub judice. The Respondent says upon being taken legal advice, he accepted it is not a good reason and there is no sub judice issue.

Finally, it is conceded on behalf of the Respondent that when the Motion of No Confidence was filed, the Respondent/Speaker accepted that it complied with Article 43(2) of the Constitution and 7 days notice period and was executed/signed by one sixth of the Members of Parliament.

It was also said that the Respondent took no issue about the veracity of the signatures or the Motion obtained on duress or unlawful means. The Respondent has agreed to leave being given and time abridged.

THE FACTS

In the light of these concessions, then, the facts in this case are straight forward and are as follows:

On 26 March 2001, 27 duly elected Members of Parliament had handed to the Speaker a Notice of Motion pursuant to Articles 43(2) of the Constitution indicating no confidence in the Prime Minister the Hon. Barak Tame Sope Mautamate.

On 26 March 2001, the Speaker acknowledged receipt of the Notice, ruled that it was in order and advised that the Motion be placed on the agenda for business for the 2001 Ordinary Session of Parliament to be debated on Tuesday, 3^rd April 2001.

On 27 March 2001, Parliament assembled in Session. The Government benches in Parliament had 21 Members of Parliament while the Opposition benches had 29 Members of Parliament. The Government withdrew all Government Bills intended for its current First Ordinary Session of Parliament in 2001.

The Prime Minister announced that the Government has lost its majority in Parliament and further that the Council of Ministers had earlier that day resolved to advise the President of the Republic of Vanuatu to dissolve Parliament.

The Prime Minister also publicly announced in Parliament that he would resign if the President should decline to dissolve Parliament.

The Respondent/Speaker then adjourned the sitting of Parliament to 2.00pm on Wednesday, 28 March 2001.

The President of the Republic of Vanuatu advised he would not dissolve Parliament.

On 28 March 2001, Parliament re-convened for normal business at 2.00pm. The Opposition side in Parliament had 29 Members of Parliament while the Government only had the support of 22 Members of Parliament.

The Respondent/Speaker advised that there were no written questions for Parliament to deal with so he decided to adjourn the sitting to 4.00pm on Tuesday 3 April 2001 so that the Parliament could debate and vote on the Motion. The Prime Minister did not resign as he stated in Parliament.

On 3 April 2001, Parliament re-convened at 4.00pm. The opposition had 27 Members of Parliament on its benches while the Government side had only 22 Members of Parliament (excluding the Respondent and two Members of Parliament who represent the Green Party).

The Respondent then advised and ruled that the Parliament would not debate and/or deal with the Motion because of some typing errors or incorrect references of the provisions of the Constitution in the content of the Motion of No Confidence. The Motion being the last item on the agenda of Parliament Session, and as Parliament now had no other business, the Respondent/Speaker closed the First Ordinary Session of Parliament of 2001.

It is also agreed between the parties that on 3 April 2001 the petitioners filed the documents herein and issued against the Respondent a Summons to call Parliament to an extraordinary Session to debate a further Motion of No Confidence (“the second motion).

THE ISSUES TO BE DETERMINED BY THE COURT AND DECISION

The issues before the Court are:

1. Whether the form of the First Motion was such that it breached the Standing Rules.

2. If so whether Respondent was correct in closing Parliament or whether the debate should have been adjourned 7 days for amendment.

3. If not whether the Speaker should re-summon Parliament to debate the first Motion.

4. Whether the filing and acceptance of the second Motion has made the Court functus officio in respect to (1-3) hereof.

5. And/or in the alternative whether the second Motion has had the same effect as an amendment to the first Motion and/or the effect that the Motion in any effect is now expired on the issued of the second Motion.

I proceed to deal first, with issues 4 and 5 together.

It is accepted as a fact that on 3 April 2001 the petitioners filed the documents in relation to the petition in Court and issued against the respondent a Summons to call Parliament to an extraordinary Session to debate a further Motion of No Confidence (“the second Motion”).

The Summons referred to above is not a matter before this Court. The said Summons was issued to call Parliament to an Extraordinary Session. This is a matter for Parliament alone but not for this Court.

If the filing and acceptance of the Summons by the Respondent/Speaker to debate the “second Motion” has rendered the Court Functus Officio, the Supreme Court of this Country will fail to exercise its constitutional duty which is to protect and enforce the provisions of the Constitution under Articles 6 and 53. The Respondent’s submission must be rejected on that point and I so rule.

My answer to issue 4 is: No.

Further, it is important to understand that in entertaining a Constitutional Petition and in granting relief sought under such a petition, the Supreme Court would not be interfering in any matter the exclusive province of Parliament but would be interfering and upholding the Constitution. The interpretation of the constitution and the granting of relief is self-evidently not a function of Parliament but the responsibilities entrusted to the Court by the people of this country through the Constitution.

The Respondent submitted that the “second Motion’ has had the same effect as an amendment to the “first Motion” and/or the effect that the Motion in any effect is now expired on the issue of the second Motion. This submission is without foundation.

The best evidence here is that although, the Petitioners lodged a “second Motion” before the Parliament, they are in Court and asked the court to exercise its duty to enforce the breach of a provision of the Constitution in relation to each and all 27 Members of Parliament in respect to the “first Motion”. That is the purpose of this Petition.

My answer to issue 5 is: No.

I, then, consider issue 1.

The evidence established that there are typing errors or incorrect references of the provisions of the Constitution in the content of the Motion of No Confidence. The evidence established also that the Respondent/Speaker acknowledged receipt of the Notice of the Motion, and ruled that it was in order and advised that the motion be placed on the agenda for the 2001 Ordinary Session of Parliament to be debated on Tuesday 3^rd April 2001. Whatever reason may be in the mind of the Respondent/Speaker on Tuesday 3 April 2001 before the closing of Parliament by the Respondent, the irregularities are of technical nature, which could not vitiate the substance of the “first Motion” and as such could not breach the Standing Rules and I so rule.

My answer to issue 1 is: No.

I deal, next with issue 2:

(i) whether the Respondent/Speaker was correct in closing Parliament; or

(ii) whether the debate should have been adjourned 7 days for amendment.

The evidence in this case are overwhelming.

It is not for the Court to interfere in the internal arrangements of the Parliament but members of Parliament can never act so as to deny to others (including the speaker or other members of Parliament) rights which are provided under the Constitution.

Article 43 (2) provides:

“Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week’s notice of such a motion will be given to the Speaker and the motion must be signed by one sixth of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected”.

Once a motion has been accepted and a date has been set down for its hearing the Speaker is not competent to close Parliament on the basis that there are typing errors or incorrect references of the provisions of the Constitution in the content of the Motion of No Confidence. And by doing so, in effect, is denying members of Parliament a constitutional right.

The following are cases in support of this view: Hon. Maxime Carlot Korman MP & Others .v. Hon. Nipake Edward Natapei MP, Speaker of Parliament & Others, Civil Case 168 of 1997. See Appeal Case of the President of the Republic of Vanuatu .v. Hon. Maxime Carlot Korman MP & Others. Appeal Case No. 8 of 1997.

My answer to issue 2(i) is: No.

The best option is for the Respondent/Speaker to adjourn the debate for 7 days to allow the Petitioners to rectify the technical irregularities so that Parliament can proceed with the first Motion but not to close the Parliament as he did.

My answer to issue 2(ii) is: Yes.

I now finally deal with issue 3.

The Respondent/Speaker should re-summon Parliament to debate the first Motion of No Confidence. This follows directly from my answer to issue 2.

My answer to issue 3 is: Yes.

On the basis of the above considerations, I have no difficulty to grant the relief sought in the Petition.

DECLARATIONS AND/OR ORDERS

The Court hereby grants the following Declarations and/or Orders:

1. That leave to apply for the Writs of Mandamus and Certiorari is granted.

2. That the decision and/or ruling by the Respondent/Speaker made on 03^rd April 2001 to prevent Parliament from debating and dealing with the Motion of No Confidence is invalid, void and of no effect.

3. That Parliament is still meeting in its First Ordinary Session in 2001 and that the decision made by the Respondent/Speaker on 03^rd April 2001 to close Parliament’s First Ordinary Session in 2001 is invalid, void and/or no effect.

4. That an Order quashing the Respondent/Speaker’s ruling that Parliament refrain from debating and voting on the Motion.

5. That an Order directing the Respondent/Speaker forthwith to re-convene Parliament and place before the Parliament the Motion so that Parliament can debate and deal with the Motion in accordance with the law and Standing Orders of Parliament.

6. That the costs are costs in cause.

DATED at PORT-VILA, this 06^th DAY of APRIL, 2001.

BY THE COURT

LUNABEK Vincent
Chief Justice