Wells v Taga Tarikarea [2003] VUSC 103; Civil Case 202 of 2003 (13 December 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 202 of 2003

BETWEEN:

THE HONOURABLE GEORGE ANDRE WELLS
First Claimant

AND:

THE ATTORNEY GENERAL
Second Claimant

AND:

THE HONOURABLE HENRI TAGA TARIKAREA
Defendant

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Dudley Aru and Freddie Gilu for the first and second claimants
Mr. Nigel Morrison for the defendant

Date of hearing: 11 December 2003
Date of Judgment: 13 December 2003

JUDGMENT

Before me is a claim for judicial review. The claim seeks for the following:

A declaration that the Parliament has the power to remove, or otherwise declare vacant, the offices of its Speaker and Deputy Speakers.

The claim was brought before the Court as a matter of urgency. All parties agree that there is urgency. The matter was set for hearing and the claim was heard on 11 December 2003.

The brief statement of the facts show the following:

• The first claimant is a Member of Parliament representing the constituency of Luganville.
• The second claimant is the Attorney General of Vanuatu.
• The defendant is the Speaker of Parliament.
  
• On 25 November 2003, the first claimant moved a motion (“the removal motion”) that the Parliament consider removing the first defendant and the Honourable Judah Issack from their respective offices as Speaker and Deputy Speaker.
  
• On 2 December 2003, after considering specifically Article 22(1) of the Constitution and Order 5(iii) of the Standing Orders of Parliament, the Defendant/Speaker made a finding that there is no foundation for the Notice of Motion. The Defendant/Speaker’s opinion is that “the vacancy in the Office of the Speaker” contemplated by Order 5(iii) cannot include and does not sanction the removal of the Speaker, or a deputy, by a Notice of Motion. The Defendant/Speaker, therefore, rejected the Motion.
  

This leads up to the claim before this Court.

The issue for the determination of the Court is:

Does Parliament have the power to remove, or otherwise declare vacant, the offices of its Speaker and Deputy Speakers.

The claim proceeds on two (2) grounds:

First, at common law the Parliament’s power to elect its Speaker and Deputy Speaker implied the power to remove them as well.

Second, upon their proper construction, Article 22 of the Constitution and Sections 4, 5 and 6 of the Standing Orders of Parliament do not preclude the exercise of this power.

The defence arguments, in essence, can be summarized as follows:

First, the Constitution does not give the Parliament power to remove the Speaker.

Article 22 of the Constitution, which authorizes the Parliament to elect its Speaker, says nothing about removing him. This silence means that the power to remove the Speaker does not exist.

Second, Vanuatu has a “Westminster” system of Parliament. The Speaker has a specific and defined role in such a system (Article 22(2) of the Constitution). The chief characteristics of the role of the Speaker are authority and impartiality.

The Speaker represents the Parliament in its powers, proceedings and dignity.

For Parliament to be able to vote the Speaker out as proposed would be entirely inconsistent with his definition and role. Therefore, in the absence of express provision the Court cannot create a provision for removal because that is a domain of the Constitution.

In interpreting a provision of the Constitution, the Court must be reminded of the following which I adopt in the present case:

The Constitution is the Supreme Law of the land. The People own and retain these basic rules, without forfeiture when electing governmental representatives. The Constitution provides a framework and sets the limits of governmental power, acting as a controlling instrument against which all other laws may be tested. It is the enduring representative of the People. As such, it must be allowed to develop in line with the development and aspiration of its people taking into account new social and political realities which may whittle down the full recognition of their rights. To adopt a strict statutory approach when interpreting the Constitution is to leave its very gates unguarded:

“The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a bill or charter of rights, for the unremitting protection of individual rights and liberties.

Once enacted, its provisions cannot easily be repealed and amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions bear these conditions in mind.” [6] Hunter v. Southam Inc. Judgment of the Supreme Court of Canada, (1985) 11 DLR (4^th) 641 (SCC) at page 649 (Dickson, J.).

As recognized by the US Supreme Court in 1941:

“In determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government, they undertook to carry out for the indefinite future and in all vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence, we read the words not as we read legislative codes- but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.” [8] United States v. Classic, Judgment of the US Supreme Court, [1941] USSC 135; 313 US 299 (1941) at 316. Emphasis added.”

In the present case, I accept the submission of the claimants that the Constitution authorizes the nation’s Parliament to do everything which it does not expressly or by necessary implication prohibit. The fact that the Constitution is silent upon the topic of removing the Speaker does not mean that the Parliament has no power to do so, it merely means that the Parliament is not precluded form doing so.

Being a brief document the Constitution does not try to foresee and provide procedures or machinery for every situation which may arise. It is thus silent on a whole range of issues and matters. It is not a Code. The framers of the Constitution expected that when these situations arose the Parliament would be able to address them, either by direct legislation or the evolution of its own procedure.

This interpretation is consistent with the reasoning which the Supreme Court published in Virelala & Ors v. the Ombudsman (Civil Case No. 4 of 1997). In that decision the Court had this to say (at page 22):

“I must say that there is a role for implication in constitutional interpretation. But, this role is a limited one, and the only implications, which could be made were those that must necessarily be implied from the actual terms of the instrument...

Therefore, in my judgment, I am of the opinion that the Court is not free to limit the language of a legislative power contained in the Constitution or the Court is not free to invent implied prohibitions upon the exercise of Legislative power.

In that respect, I must add that, when making laws for “the good Governance of Vanuatu”, Parliament may commit possible abuse of powers. However, that possible abuse of powers is no reason in Vanuatu law for limiting the language of a 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 interests of the people of Vanuatu considered as such, it is within the power of the people themselves to recent and reverse what may be done. No protection of this Court in such a case is necessary and proper.”

Article 22(1) of the Constitution says-

“... Parliament shall elect a Speaker and one or more Deputy Speakers.”

“To elect” means “to vote” see Vanuatu Court of Appeal decision No. 6 of 2002 - judgment delivered on 13 March 2002 in the interpretation of “the date of election” of Parliament in accordance with Article 28 of the Constitution.

Article 22(1) must be read in to include Parliament shall “remove by election or vote” a Speaker or one or more Deputy Speaker.

It is a matter of logic and common sense for Parliament as an institution to be equipped with the power to remove its officers including its Speaker and Deputy Speakers.

As to whether or not a supermajority is required for the Speaker to be removed, the defendant referred the Court to the relevant provisions of the Constitutions of Fiji and Uganda. In the two (2) Constitutions, a supermajority is required for the Speaker to be removed. (In Fiji, a two third majority is required; in Uganda two third of absolute majority is required).

Vanuatu Constitution does not provide for specific procedures for the removal of the Speaker. In the absence of an explicit provision a decision to remove the Speaker could be made in the normal course of Parliament’s decision-making processes, i.e. by simple majority.

Article 21(3) and (5) of the Constitution says:

“(3) Unless otherwise provided in the Constitution, Parliament shall make its decisions by public vote by a simple majority of the members voting.

(5) Parliament shall make its own rules of procedure.”

The silence of the Vanuatu Constitution on the specific required majority for the removal of Speaker by comparison with those of Fiji and Uganda, suggest an expectation by the framers of Vanuatu Constitution that no special procedure would be required for the removal of the Speaker.

Article 21(5) of the Constitution is materialized through the Standing Orders of Parliament.

These do refer to a vacancy arising in the Office of the Speaker but, do not enumerate the means by which a vacancy could occur. However, Order 5(2) of the Standing Orders contemplate a vacancy which arises otherwise than by the resignation of a Speaker. This could presumably be the death of a Speaker, but also his removal.

In any event, Standing Orders must be read in conformity and consistently with the Constitution and not otherwise.

As to whether these should be special procedures for the removal of the Speaker like those of the Prime Minister, the framers of the Constitution clearly intended a simple majority vote should suffice.

On the basis of the above, I come to the conclusion that, Parliament is entitled to remove its Speaker, by means of a simple majority vote, in accordance with normal parliamentary procedures.

I now make the following Orders and Declarations:

1. A declaration that the Parliament has the power to remove, or otherwise declare vacant, the Office of its Speaker and Deputy Speakers.
   
2. Costs are for the claimants to be agreed or taxed.
   
3. The matter in CC 202 of 2003 is listed for conference for costs assessment on 19 December 2003 at 1.30PM o’clock.
   

Dated at Port-Vila this 13^th day of December 2003

BY THE COURT

Vincent LUNABEK
Chief Justice