Lini v Speaker of Parliament [2004] VUSC 42; Civil Case 154 of 2004 (19 August 2004)

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

CIVIL CASE No. 154 of 2004

BETWEEN:

Hon. Ham Lini, Leader of Opposition
Hon. Edward N. Natapei
Hon. Willie Jimmy
Hon. George A. Wells
Hon. James Bule
Hon. Philip Boedoro
Hon. Morkin Stevens
Hon. Isabelle Donald
Hon. David Tosul
Hon. Sam Dan Avock
Hon. Seule Tom
Hon. Moses Kahu
Hon. Eric Shedrack
Hon. Bob Loughman
Hon. Sandy Iavcuth
Hon. Leinavau Tasso
Hon. Charlie Rocroc
Hon. Jack Eric
Hon. Sato Kilman
Hon. Danstan Hilton
Hon. Malon Hospmander
Hon. Noel Tamata
Hon. Joshua Kalsakau
Hon. Peter Vuta
Hon. Paul Telukluk
Hon. Arnold Prasad
Hon. Thomas Nendu
Applicants

AND:

The Hon. Josias Moli,
Speaker of Parliament, Parliament House, Port-Vila
Respondent

Coram: Chief Justice Vincent LUNABEK

Mr. Ishmael Kalsakau for the Applicant
Mr. Ronald Warsal for the Respondent

Date of hearing: 14 August 2004
Date of judgment: 19 August 2004

JUDGMENT

Introduction: Nature of the Application and Relief Sought

This is a Constitutional Application dated 9 August 2004 and filed on 10 August 2004 by 27 Members of Parliament, Applicants against the Speaker of Parliament of Vanuatu, Respondent.

The Application seeks for the following:

1. That the Speaker of Parliament is served a valid request for an Extraordinary Session of Parliament and a valid Notice and Motion of No Confidence against the incumbent Prime Minister of Vanuatu.
   
2. That the Speaker of Parliament in accordance with Article 21(2) of the Constitution of the Republic of Vanuatu must summon Parliament to meet in Extraordinary Session pursuant to the request of the said 27 Members of Parliament dated 4^th day of August 2004 and served upon the Speaker.
   
3. Costs.
   
4. Such further and/or Order the Court may be pleased to so make.
   

The Constitutional Application is advanced on the following grounds:

1. Twenty seven Members of Parliament constituting a majority of the Members of Parliament have made a valid request for Parliament to meet in Extraordinary Session.
   
2. Once the Speaker of Parliament receives such a request by the majority of the Members of Parliament requesting an Extraordinary Session he must summon Parliament.
   
3. The Applicants contend the Respondent is avoiding accepting service of the requests and/or summoning Parliament in a manner that is infringing upon the rights of the Applicants as guaranteed by the Constitution.
   

Response and Defence

The Application is supported by the sworn statement of Hon. Vanuaroroa Ham Lini, MP, the Leader of Opposition dated 10 August 2004.

The Response to the Constitutional Application is set out as follows:-

1. The Respondent does not admit the first relief sought in the Application.
   
2. The Respondent does not admit the second relief sought on the basis that a majority of Members of Parliament did not request an Extraordinary Session of Parliament pursuant to Article 21 (2) of the Constitution to compel the Respondent to summon Parliament.
   

In his defence, the respondent contends that:-

1. A majority of Members of Parliament did not make the request for Parliament to meet in an Extraordinary Session.
   
2. The Respondent did receive the request for an Extraordinary Session of Parliament but had to consider whether there was a majority to compel him to summon Parliament in accordance with Article 21(2) of the Constitution of the Republic of Vanuatu and Article 14(1) and (2) of the Standing Orders of Parliament.
   

Further and/or in the alternative, the Respondent contends that it is not avoiding accepting service or the request for the summoning of Parliament that would be in breach of the rights of the applicants as guaranteed and enshrined by the Constitution of the Republic of Vanuatu.

The Respondent Speaker filed a sworn statement on 11 day of August 2004 in support of his response and defence.

Brief Factual Circumstances

The brief factual circumstances from the sworn statements establish the following:-

1. On 4 August 2004, 27 Members of Parliament signed the following:-

• A request by each of the 27 Members of Parliament for the Speaker to summon Parliament to meet in an Extraordinary Session. They are annexed as “A1 to A25” to the sworn statement of Hon. Ham Lini.
  
• A Notice to the Speaker of a Motion of No Confidence against the Prime Minister.
  
• A Motion of No Confidence against the Hon. Rialuth Serge Vohor, Prime Minister of Vanuatu.
  

2. On same date, Hon. Ham Lini, Leader of Opposition met the Respondent/Speaker in his Chambers with the Clerk of Parliament. He then indicated to the Speaker of his intention to serve on him the request of 27 Members of Parliament for the Speaker to Summon Parliament in an Extraordinary Session to debate a Motion of No Confidence against the Prime Minister.
   
3. The Speaker told him to make a written appointment for the purpose of lodging the motion.
   
4. Hon. Ham Lini left the Respondent’s Chambers. He then approached the Clerk of Parliament and serve on the Clerk of Parliament the documents he intended to serve on the Speaker and asked the Clerk to confirm he had given them to the Speaker namely:-
   
   • The request of 27 Members of Parliament to meet in an Extraordinary Session dated 4 August 2004;
     
   • The Notice of Motion of No Confidence in the Prime Minister; and
     
   • The Motion of No Confidence in the Prime Minister dated 4 August 2004; and
     
   • The covering letter addressed to the Speaker dated 4 August 2004 explaining the nature of the referred documents
     
5. On the same day 4 August 2004 in the evening, Hon. Ham Lini wrote a letter to the Respondent referring him to their earlier meeting of that afternoon and confirmed to the Respondent that he had served him through the Clerk of Parliament given he had refused to accept the documents in his Office.
   
6. On 5 August 2004, the Respondent wrote a letter to Ham Lini requesting that his Office provided the following:-
   

(a) Reasons for which an Extraordinary Session of Parliament is requested;

(b) Proof of a majority of the Members of Parliament to compel him to summon Parliament to meet in an Extraordinary Session. Such proof to be in writing and signed by a majority of Members of Parliament and that there be no revoked signatory by any of the majority of the Members of Parliament because there has to be a majority.

7. The same day 5 August 2004, Hon. Ham Lini responded to the Respondent’s letter referred to above and confirmed the documents were with the Clerk of Parliament and attached with his letter copies of all the documents he had served him through the Clerk.
   
8. On 6 August 2004, he received a letter from the Clerk of Parliament. The Clerk of Parliament confirmed that the documents relating to the Motion of No Confidence he received on 4 August 2004 at about 5.28PM were filed in the Speaker’s Secretariat. The Clerk further confirmed that on Thursday 5 August 2004 at around 9.15AM he informed the Speaker about the said documents that were kept in his Secretariat. The Clerk indicated that the Speaker has therefore knowledge of the documents that are kept in the Speaker’s Secretariat. The Clerk of Parliament indicated also that the Respondent directed that the documents are to be kept in his Secretariat for the time.
   

Finally, the Clerk indicated that the documents are being kept in Mr. Speaker’s Secretariat for him to decide to deal with them at the time and manner he thinks fit.

9. On 6 August 2004, Hon. Ham Lini attempted to meet with the Respondent. The Respondent agreed to him but he indicated they will meet on Monday 9 August 2004. But Ham Lini insisted to meet the Respondent on that same date. On 6 August 2004 at 1.30PM, Hon. Ham Lini attended the Office of Speaker, he was not there.
   
10. On 9 August 2004, Hon. Ham Lini met with the Respondent/Speaker at about 3.45 PM. The Respondent advised him that he had officially received their request for Extraordinary Session, the Notice and Motion of No Confidence against the Hon. Prime Minister.
    
11. On the same date (9/08/04) the Respondent asked Hon. Ham Lini to give him until Tuesday 10 August 2004 at 4.30PM to respond to the matters he had accepted.
    
12. Later that same day of 9 August 2004 in the afternoon, Hon. Ham Lini wrote a letter to the Respondent that he will give him until Tuesday 10 August by 12.00PM o’clock to decide on their request for the Speaker to call Parliament for an Extraordinary Session to debate the Motion. He informed the Respondent/Speaker that he has obtained legal advice and he is ready to file proceedings in the Courts over the issues of service of the documents which were in the Office of the respondent/Speaker since Wednesday 11 August 2004 and the Motion of No Confidence in the Prime Minister.
    
13. Hon. Ham Lini deposed finally in his sworn statement that the Respondent may be resorted to delay tactics for reasons known only to him but which are affecting their rights guaranteed by the Constitution to request an Extraordinary Session of Parliament and to table the Motion of No Confidence against the Prime Minister.
    
14. He pressed the Court to make the Declarations and Orders sought in the Constitutional Application.
    
15. The above factual circumstances are not in substance disputed by the Respondent/Speaker. In his sworn statement filed in support of his defence, he confirmed in substance these facts. However, he stated that he had never refused and/or rejected any documents as put by Hon. Ham Lini MP, Leader of Opposition.
    
16. He stated also that he postponed the meeting of 6 August 2004, with Hon. Ham Lini to Monday 9 August 2004 at 4.00PM because of various matters not foreseen because he is also the Acting President of the Republic of Vanuatu.
    
17. The respondent stated that Hon. Ham Lini MP at no stage deposed or made any attempt in having the Notice of Motion deposed with his Private Secretary in his Office.
    
18. On Monday 9 August 2004 at 4.00PM o’clock he met with Hon. Ham Lini and advised him that he has received the Motion but it is with the Clerk of Parliament Mr. Lino Sacsac. He will consult the Clerk with a view of receiving it and to decide whether it is in order so as to get back to him by Tuesday August 10, 2004 at 4.15PM.
    
19. On 10 August 2004 in the morning, he received a letter form Hon. Ham Lini dated 9 August 2004 amongst other things giving him until 12.00PM on Tuesday 10 August 2004 to get back to him failing which Court proceedings would be filed.
    
20. On 10 August 2004, the Respondent replied to Hon. Ham Lini’s letter of 9 August 2004 informing him that he would have to see him on 4.30PM on same date. The Respondent and Hon. Ham Lini met at 4.30PM at the Respondent’s office. The Respondent confirmed to him that he had received the Notice of Motion and all other accompanying documents but the Clerk of Parliament was not there and now that the Clerk of Parliament was there, the Clerk has advised him as Speaker to do a letter of certification of acknowledgment that shows and confirms the receiving of the Notice of Motion and other accompanying documents all dated August 4^th, 2004 as this would be the procedure for acknowledgement of receipt of such document by the Speaker’s Office of such documents.
    

The certification is reproduced below:

“PARLIAMENT OF THE REPUBLIC OF VANUATU
EIGHT LEGISLATURE

Hon. Ham LINI (MP)

Leader of Opposition

Parliament House

Port-Vila

Dear Hon. Ham LINI,

CERTIFICATION OF RECEIPT OF REQUEST FOR AN EXTRAORDINARY SESSION, NOTICE OF MOTION OF NO CONFIDENCE AND MOTION OF NO CONFIDENCE ALL DATED 2^nd AUGUST 2004

This is to confirm that I have today 2^nd August 2004 at ..... hours received the following documents from the Leader of Opposition:-

1. Request for Calling of an Extraordinary Session of Parliament by the majority of Members of Parliament, particularly by 30 of them.
   
2. Notice of Motion of No Confidence.
   
3. Motion of No Confidence in the Prime Minister Serge Vohor Rialuth.
   

I have found the Request and Motion of No Confidence to be in order.

Yours sincerely,

____________________

Hon. Josias MOLI MP

Speaker of Parliament”

[The above Certification is not signed nor sealed by the Respondent].

21. He stated also that he advised Hon. Ham Lini that he would have to get the date on the certification of acknowledgement and receipt changed to August 10^th, 2004. However, he deposed that Hon. Ham Lini refused for the change and advised the Respondent that he had filed proceedings in Court.
    
22. The Respondent deposed further that at that point in time, he told Hon. Ham Lini that he has received a letter of revocation from Hon. MP Arnold Prasad who had withdrawn his name for the calling of the Extraordinary Session of Parliament.
    
23. The said letter from Hon. Arnold Prasad MP, of 6 August 2004 is reproduced below:
    

“Honourable Arnold PRASAD

MP for Santo Rural

6^th August 2004

Honourable Josias MOLI

Speaker of Parliament

PMB 9052

Port-Vila

Republic of Vanuatu.

Honourable Speaker,

I wish to advise that I hereby redraw my signature and support on the Motion of Non Confidence against the Honourable Prime Minister Serge Rialuth Vohor with immediate effect. (sic)

I also wish to advise that I have decided to remove my signature for the best and stability of the country and for the people of Vanuatu.

I would like to take the opportunity to apologies for all the inconvenient that has caused.

Yours truly,

__________________

Honourable Arnold PRASAD

MP for Santo Rural”

[This letter was signed by Hon. Arnold Prasad].

24. The Respondent finally deposes that to his best knowledge and belief he was going to advise Hon. Ham Lini that he could not summon Parliament because there were not a majority of twenty seven (27) Members of Parliament given that Hon. MP Arnold Prasad had revoked his signature for the Notice of Motion of No Confidence against the Hon Rialuth Serge Vohor, Prime Minister which was what he had emphasized in his letter to Hon. Ham Lini dated 5^th August 2004.
    
25. The Respondent requests that the Court refused the Orders sought by the Applicants and have the Constitutional Application struck out with costs.
    

Facts Found and Accepted by the Court

The following are facts as found and accepted by the Court:-

On 4 August 2004, 27 Members of Parliament signed the following:-

• A request for the Speaker to summon Parliament in an Extraordinary Session; and
  
• A Notice of Motion of No Confidence; and
  
• A Motion of No Confidence signed by 27 Hon Members of Parliament, the Applicants.
  
• A covering letter form Hon. Ham Lin, Leader of Opposition dated 4 August 2004 to the Respondent.
  

The request by 27 Members of Parliament proposed for the Extraordinary Session to open on 12 August 2004 to discuss the Motion of No Confidence against the Prime Minister Hon. Rialuth Serge Vohor and the election of a new Prime Minister.

The Respondent at the relevant time was also Acting President of the Republic of Vanuatu. It is a fact that he may also involve in other matters relating to that capacity.

The service of the request for the Speaker to summon Parliament in an Extraordinary Session, the Notice and the Motion of No Confidence in the Prime Minister of Vanuatu and the covering letter of 6 August 2004 explaining to the Respondent the nature of the request and the Motion on the Clerk of Parliament on 4 August 2004, constitutes a proper and valid service on the Office of the speaker of Parliament.

There is no evidence that any of the 27 Members of Parliament withdrew his signature requesting the Speaker to summon Parliament in an Extraordinary Session to debate the Motion of No Confidence against the Prime Minister.

The only evidence before the Court is that Hon. Arnold Prasad MP, withdrew his signature and support on the Motion of No Confidence against the Hon. Prime Minister Serge Rialuth Vohor. This is a different matter from Hon. Arnold Prasad’s signature and request dated 4 August 2004 requesting the Speaker to summon Parliament in an Extraordinary Session to open on 12 August 2004 to debate the Motion of No Confidence against the Prime Minister.

The request of Hon. Arnold Prasad, MP is annexed to the sworn statement of Hon. Ham Lini of 10 August 2004 in support of the Constitutional Application and marked “A26”. It is reproduced below:-

«PARLEMENT DE LA REPUBLIQUE DE VANUATU
PARLIAMENT OF THE REPUBLIC OF VANUATU

HUITIEME LEGISLATURE / EIGHTH LEGISLATURE
_____________________________________________________________

Dear Honourable Speaker,

REQUEST FOR CALLING OF AN EXTRAORDINARY SESSION

OF PARLIAMENT

In accordance with the provision of Section 21(2) of the Constitution and Standing Order 14(1) (2) (a) (b) (c), I Hon. Arnold PRASAD, Member of Parliament for Santo Constituency, hereby request that the Parliament meet in Extra Ordinary Session, to open on the 12^th August 2004 to discuss Motion of No Confidence Against the Prime Minister Honourable Rialuth Serge VOHOR and the election of a new Prime Minister.

Yours sincerely,

Hon. Arnold PRASAD (MP)

Member of Parliament for Santo

Dated at Port-Vila this 4^th day of August 2004.”

[This letter of 4 August 2004 was signed by Hon. Arnold Prasad].

The signature and request of Hon. Arnold Prasad requiring the Speaker to call Parliament in an Extraordinary Session dated 4 August 2004 is still in existence and has not been withdrawn by him. What is withdrawn by Hon. Arnold Prasad is his signature and his support on the Motion of No Confidence against the Prime Minister Hon. Rialuth Serge Vohor. The Motion bears names and signatures of the Applicants including those of Hon. Arnold Prasad dated 4 August 2004. The said motion is annexed and marked “C” to the sworn statement of Hon. Ham Lini, Leader of Opposition. It is reproduced below:-

“CONSTITUTION OF THE REPUBLIC OF VANUATU

PARLEMENT DE LA REPUBLIQUE DE VANUATU
PARLIAMENT OF THE REPUBLIC OF VANUATU

HUITIEME LEGISLATURE / EIGHTH LEGISLATURE

STANDING ORDERS OF PARLIAMENT
______________________________________________________________

Motion Number 1 of 2004

Proposed by: Honourable Ham Lini Member of Parliament

Seconded by: Honourable Nipake Edward Natapei Member of Parliament

PROPOSE: MOTION OF NO CONFIDENCE AGAINST THE PRIME MINISTER OF THE REPUBLIC OF VANUATU, HONORABLE RIALUTH SERVE VOHOR

______________________________________________________________

WHEREAS: Pursuant to Article 43(2) of the Constitution of the Republic of Vanuatu Parliament may pass a motion of no confidence in the Prime Minister.

AND WHEREAS: Once such a motion is passed to the effect that renders the office of the Prime Minister vacant the Members of Parliament are mandated by Article 41 of the said Constitution and Standing Orders 9(3) and 8(2), (3) and (4) of the Standing Orders of Parliament to elect a Prime Minister from amongst the said Members of Parliament.

AND WHEREAS: It is contended by the undersigned Members of Parliament that the Hon. Serge Vohor RIALUTH, elected Prime Minster on the 29^th July 2004 no longer enjoys the confidence of the majority of the Members of Parliament.

AND WHEREAS: It is intended by the undersigned Members of Parliament in exercise of each of their prescribed rights under the Constitution to move a motion of no confidence in the current Prime Minister, the Hon. Serge Vohor Rialuth.

THIS MOTION IS SUPPORTED BY THE FOLLOWING MEMBERS OF PARLIAMENT WHO HAVE GIVEN THEIR SIGNATURE THIS 4^th DAY OF AUGUST 2004

Hon. Ham LINI Hon. Edward Nipake NATAPEI

Member for Pentecost Member for Port-Vila

Hon. Sato KILMAN Hon. Joshua KALSAKAU

Member for Malekula Member Efate

Hon. Peter VUTA Hon. Willie JIMMY

Member of Ambae Member of Port-Vila

Hon. George Andre WELLS Hon. James BULE

Member for Luganville Member for Ambae

Hon. Philip BOEDORO Hon. Danstan HILTON

Member for Maewo Member for Banks/Torres

Hon. Morkin STEVENS Hon. Isabelle DONALD

Member for Tanna Member for Epi

Ho. David TOSUL Hon. Sam Dan AVOCK

Member for Pentecost Member for Paama

Hon. Seule TOM Hon Moses KAHU

Member for Tongoa Member for Tanna

Hon. Laiurou Erick SHEDRAC Hon. Hon Sandy IAVCUTH

Member for Banks/Torres Member for Santo

Hon. Charlie ROCROC Hon. Bob LOUGHMAN

Member for Malekula Member for Tanna

Hon. Jack ERIC Hon. Leinavau TASSO

Member for Luganville Member for Epi

Hon. Malon HOSPMANDER Hon. Noel TAMATA

Member for Malekula Member for Pentecost

Hon. Arnold PRASAD Hon Thomas NENDU

Member for Santo Member for Tafea Outer Island

Hon. Paul TELUKLUK Hon. Esmon SIMON

Member for Malekula Member for Malekula

Hon. Raphael WORWOR Hon. Philip ANDIKAR

Member for Ambrym Member for Santo”

The above Motion is the one referred to by Hon. Prasad in his letter of 6 August 2004 to the Respondent/Speaker informing the Speaker of the withdrawal of his signature and support.

The Respondent/Speaker although, he stated that the documents be kept in his Secretariat for him to decide and to deal with them at the time and manner he thinks fit, nevertheless has indicated his intention that he could not summon Parliament because there was no majority of 27 Members of Parliament given that the Hon. Arnold Prasad had revoked his signature for the Notice of Motion of No Confidence against the Prime Minister, Hon. Rialuth Serge Vohor.

Law: Constitution and Standing Orders

The following are the relevant and important provisions of the Constitution and the Standing Orders of Parliament to the issues before the Court:-

Articles 1, 2, 4(1), 6, 21, 43(1) & (2) and 53 of the Constitution and Order 14(1), (2) and (5) of the Standing Orders of Parliament.

The relevant provisions of the Constitution provide:

“1. The Republic of Vanuatu is a sovereign democratic state.”

“2. The Constitution is the supreme law of the Republic of Vanuatu.”

“4. (1) National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.”

“6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right.”

“21. (1) Parliament shall meet twice a year in ordinary session.

(2) Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.

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

(4) Unless otherwise provided in the Constitution, 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.

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

43.(1) The Council of Ministers shall be collectively responsible to Parliament.

(2) Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week’s notice of such a motion shall be given to the Speaker and the motion must be signed by one sixth of the members of Parliament. If it is supported by an absolute majority 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.”

53.(1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.”

Order 14 of the Standing Orders of Parliament provides:

“14. (1) Whenever the Speaker so decides or is requested by the Prime Minister or the majority of the Members of Parliament, he shall summon Parliament to meet in extraordinary session.

(2) Any request made to the Speaker under paragraph (1) shall be in writing and shall be signed by the Prime Minister or Members requesting the extraordinary session. Such request shall contain:-

(a) The reason for which an extraordinary session is requested;

(b) A statement of the specific matter or matters to be discussed during the extraordinary session;

(c) The expected duration of the extraordinary session and a proposed date for its opening.

(3) ...

(4) ...

(5) The Clerk shall send to each Member a notice stating that the extraordinary session will commence on the date specified therein. The notice shall contain a statement of the matter or matters to be discussed during such session. The notice shall be given at least seven (7) day before the day appointed for the opening of the extraordinary session.”

Submissions, Arguments and Application of Law

The Applicants say that twenty seven (27) Members of Parliament constituting a majority of the Members of Parliament have made a valid request for Parliament to meet in an Extraordinary Session.

On 4 August 2004, 27 Members of Parliament intended and signed each and all a request for the Speaker to summon Parliament to meet in an Extraordinary Session to debate a Motion of No Confidence in the Prime Minister Hon. Rialuth Serge Vohor. The Parliament is composed of 52 members. 27 Applicants constitute a majority requiring the Speaker to summon Parliament for an Extraordinary Session in accordance with Article 21(2) of the Constitution.

The submissions and arguments put on behalf of the Respondent/Speaker that a majority of the Members of Parliament did not make the request for Parliament to meet in an Extraordinary Session is contrary to the facts before the Court. It is therefore rejected.

The Applicants submitted further that once the Speaker of Parliament receives such a request by the majority of the Members of Parliament requesting an Extraordinary Session he must summon Parliament.

The Respondent submitted in reply that the Respondent did receive the request for an Extraordinary Session of Parliament but however, he had to consider whether there were a majority to compel him to summon Parliament in accordance with Article 21(2) of the Constitution and Orders 14(1) and (2) of the Standing Orders of Parliament.

It is important for the Speaker to ensure that the request for calling an Extraordinary Session of Parliament is made by a majority of the Members of Parliament as provided under Article 21(2) of the Constitution and in the manner as set out under Order 14(2) of the Standing Orders of Parliament.

In the present case, the request for the Speaker to summon Parliament in an Extraordinary Session dated 4 August 2004 was made in writing with a Notice of and a Motion of No Confidence signed by 27 Members of Parliament with a covering letter dated 4 August 2004 explaining the nature of the Request, the Motion and a proposed date for Parliament to meet, which was 12 August 2004. They were served on the Clerk of Parliament who has lodged them in the Secretariat of the Respondent/Speaker on 4 August 2004. The service is a proper and valid service taken the circumstances of this case bearing in mind that the Respondent is also assuming the functions of the President of the Republic on an acting capacity.

The Speaker is to check on the face of the document if there is a majority of the Members of Parliament who signed and requested him to summon Parliament in an Extraordinary Session. Once that exercise is done, it is sufficient for the Speaker to accept the request and the Notice and the Motion of No Confidence and summon Parliament in an Extraordinary Session as requested.

The calling of an Extraordinary Session of Parliament at the request of a majority of the Members of Parliament is not a matter at the discretion of the Speaker of Parliament. Once the Respondent/Speaker of Parliament receives such a request by a majority of the Members of Parliament in accordance with Article 21(2) of the Constitution, the Speaker has no choice. He must summon Parliament.

The Court of Appeal interpreted Article 21(1) & (2) of the Constitution in the case of Attorney General and Edward Natapei v. Willie Jimmy and other, Court of Appeal [1996] VUCA 1; Case No. 07 of 1996. In that case, the Court of Appeal held:

“The correct analysis is that the constitutional right of a majority of members to require that Parliament be summoned in extraordinary session is found in Article 21(2) of the Constitution.

The use of the word “shall” in Article 21(1) and the word “may” in Article 21(2) is not in our opinion intended to indicate that the calling of an Extraordinary Session is a matter of discretion. It merely recognizes whereas there must be at least two ordinary parliamentary sessions each year, in addition there “may” be extraordinary sessions if requested.

To construe Article 21(2) as the appellants propose would-

(i) Deprive the majority of the members of the House from exercising the power to legislate, by majority decisions, as is the plain intention of the Constitution – see Articles 1, 4 and particularly 21(3); and

(ii) Give the Speaker, an officer of Parliament, the discretionary power to determine whether or not a majority of its members should have the opportunity to make parliamentary decisions at any time other than during the biannual ordinary sessions.

That result would be so contrary to the plain intention of the Constitution that the Court would only adopt such a construction if the language of Article 21(2) compels that course. It does not.

...

In our view the only tenable construction of Article 21(2) is that a majority of members can require that Parliament be summoned to consider business in Extraordinary Session. Unless that construction is adopted there would be no purpose in the Constitution providing for extraordinary sessions.

It follows that if the respondents’ request was within the parameters of Article 21(2), the Speaker’s rejection of that request was a breach of the respondents’ right under that Article to have Parliament summoned.” [at page 6].

This is the law which is applied in the present case.

The Respondent’s submission to the contrary is clearly against the law. It must be rejected.

The Applicants finally submit that the Respondent is avoiding accepting service of the request and/or summoning Parliament in a manner that is infringing upon the rights of the applicants as guaranteed by the Constitution.

It is submitted on behalf of the Respondent that the Respondent received the Notice of the request for the calling of an Extraordinary Session of Parliament, the Notice of and the Motion of No Confidence on 10 August 2004. Once the Speaker decides, the Clerk will send the notice for Parliament to be summoned. As the Respondent has not yet decided whether or not to call Parliament for an Extraordinary Session, there cannot be any breach of the constitutional rights of the Applicants.

On the facts as found and accepted by the Court, the request signed by each and all 27 Members of Parliament, the Notice of and the Motion of No Confidence in the Prime Minister were served on the Clerk of Parliament as proper and valid service on 4 August 2004.

Further on Monday 9 August 2004, the Respondent informed Hon. Ham Lini that he had received the Motion and accepted it. However, the document annexed as “I” entitled: “Certification of Receipt of Request for an Extraordinary Session, Notice of Motion of No Confidence and Motion of No Confidence all dated 4 August 2004, which is annexed to the sworn statement of the Respondent filed on 14 August 2004 did not bear the signature of the Respondent/Speaker.

It follows that the submission that the Speaker received the request, the Notice and the Motion on 10 August 2004 cannot stand and must be rejected.

In this case, as the facts show, not only the Speaker take into account of irrelevant matters which cannot assist him in the performance of his duty under Article 21(2) of the Constitution, but he has also indicated of his intention to advise Hon. Ham Lini, Leader of Opposition that he was not going to summon Parliament because there was not a majority of twenty seven (27) Members of Parliament given that Hon. MP Arnold Prasad had revoked his signature for the Notice of Motion of No Confidence against the Prime Minister Serge Vohor which was what he had emphasized in his letter to the Leader of Opposition dated 5^th August 2004.

Although it is submitted that the Respondent has yet to decide, the facts show to the contrary. The Respondent intended to refuse the Request of the 27 Members of Parliament, the present Applicants, dated 4 August 2004, to summon Parliament. In effect, the Respondent has made up his mind. He has decided to refuse the Request of 27 Applicants, MP.

As the facts show the Hon. Arnold Prasad had never withdrawn his signature and his request for the Speaker to summon Parliament for an Extraordinary Session under Article 21(2) of the Constitution Annexed as “A26” to the sworn statement of Hon. Ham Lini filed in support of the Application.

On 6 August 2004, Hon. Arnold Prasad wrote to the Hon. Speaker of Parliament, the Respondent and advised him that he withdrew his signature and support on the Motion of No Confidence against the Prime Minister Rialuth Serge Vohor Annexed as “JM5” to the statement of Respondent in support of his defence.

Hon. Arnold Prasad’s letter of 6 August 2004 is not a matter for the Speaker’s consideration. It is a matter for Parliament in Parliament in pursuance to Article 43(2) of the Constitution.

It is clear that by expressing his intention to refuse to summon Parliament in an Extraordinary Session as requested by a majority of 27 Members of Parliament, amount to a refusal by the Respondent/Speaker to summon Parliament as requested.

Finally, by considering and taking into account of irrelevant matters in the exercise of his duty under Article 21(2) of the Constitution and coupled with the intention of the Respondent to refuse to summon the Parliament as requested by a majority of the Members of the House, constitute facts that have been, are being or are likely to infringe the rights of the Applicants as Members of Parliament as enshrined under Article 21(2) of the Constitution.

The submissions and arguments made on behalf of the Respondent are refused and have no basis in law.

On the basis of the above considerations, THE COURT MAKES THE FOLLOWING ORDERS AND DECLARATIONS:-

1. That the Speaker of Parliament is served a valid request for an Extraordinary Session of Parliament and a valid Notice of and Motion of No Confidence against the incumbent Prime Minister of Vanuatu.
   
2. That the Speaker of Parliament in accordance with Article 21(2) of the Constitution of the Republic of Vanuatu, must summon Parliament to meet in an Extraordinary Session pursuant to the request of the said 27 Members of Parliament dated 4^th day of August 2004 and served upon the Speaker.
   
3. The Respondent/Speaker is directed to summon Parliament in an Extraordinary Session to debate the Motion of No Confidence in the Prime Minister dated 4^th August 2004 within 7 days from today’s date.
   
4. The costs are for the Applicants and to be agreed or taxed.
   
5. The matter is adjourned for conference on Monday 30 August 2004 at 10.00AM o’clock in the morning.
   

Dated at Port-Vila this 19^th day of August 2004

BY THE COURT

Vincent LUNABEK
Chief Justice