Kilman v Republic of Vanuatu - Order [2011] VUSC 38; Constitutional Case 01 of 2011 (24 April 2011)

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

Constitutional Case No.01 of 2011

IN THE MATTER OF:

ARTICLES 53(1)(2) AND ARTICLES 21(2) OF THE CONSTITUTION AND ORDER 14 OF THE STANDING ORDER OF PARLIAMENT

BETWEEN:

HON. SATO KILMAN - Prime Minister
HON. HAM LINI VANUARORO - Deputy Prime Minister, HON ALFRED CARLOT - MP for Efate Rural, HON. HARRY IAUKO - MP for Tanna, HON. DONNA BROWNY - MP for Malekula, HON. JAMES BULE - MP for Ambae, HON. DON KEN - MP for Malekula, HON. DUNSTAN HILTON – MP for Banks, HON. MOANA KALOSIL – MP for Port Vila, HON. DANIEL TOARA – MP for Shepherds, HON. MARCELLINO PIPITE – MP for Santo Rural, HON.SAMSEN SAMSON – MP for Santo Rural, HON. GEORGE WELLS – MP for Luganville, HON. DAVID TOSUL – MP for Pentecost, HON. PHILIP CHARLIE – MP for Tafea Outer Islands, HON. MOKING STEVENS – MP for Tafea, HON. ESMON SIMON – MP for Malekula, HON. HAVO MOLI – MP for Malo, HON. RALPH REGANVANU – MP for Port Vila, HON. LOUIS ETAP – MP for Tanna, HON. ISAAC HAMARILIU – MP for Epi, HON. WILLIE LOP – MP for Tanna, HON. JEAN RAVO – MP for Santo Rural, HON. JAMES NGWANGO – MP for Ambae and HON. DAVID ARIASUA – MP for Paama
Applicants
Counsel: Mr George Boar of Boar Law, Port Vila

AND:

THE REPUBLIC OF VANUATU
Respondent

Mr Daniel Yawha for the Applicants
Mr Ronald Warsal for the Respondent

Hearing date & time: 24th April 2011 at 8.00am
Date of decision: 24th April 2011 at 9.15am o'clock

ORDER

1. Relief 1 sought in the Application dated 24th April 2011 for suspension of the decision of the Supreme Court of 24th April 2011 is withdrawn by counsel of the Applicants.

2. Relief 2 sought in the Application dated 24th April 2011 restraining the Speaker and Deputy Speaker of Parliament from presiding and convening the extraordinary session of Parliament listed for 8.30am o'clock on 24th April 2011 to debate a Motion of no confidence in the Prime Minister pending the determination of the Notice of Appeal filed 24th April 2011 is refused.

The reasons are set out below:

(a) The subject matter of the Motion of no confidence is presently before Parliament for debate at 8.30am o'clock this morning on 24th April 2011.

(b) While the application is on before the Court, the process before Parliament is also on and it appears that the Court is entertaining counsel and parties on same issue which is currently placed before Parliament and Parliament is now debating it and will decide on it shortly or may be Parliament has already decided on it.

(c) The Notice of Appeal and grounds of appeal are filed. There is no stay/suspension process as the Court dismissed the Urgent Application on the evidence before the Court.

(d) The grounds are advanced on factual findings of the Supreme Court on its oral decision made this morning 24th April 2011. The issue is about Court factual findings but not on a major interpretation of the provision of the Constitution.

(e) The appeal is made against the decision of the Supreme Court and that is a matter of right for the Applicants. Whether or not the Supreme Court could grant the restraining Orders sought against the Speaker and the Deputy Speaker of Parliament, is a different matter. If the Court issues an order restraining Parliament to debate the Motion, the order will achieve nothing as Parliament is now debating the Motion of no confidence in the Prime Minister and is deciding on it. It is too late for such an order to be made. As the order sought is of injunctive nature, the Court exercises its discretion to refuse it.

These are the reasons of the Court's refusal to grant the injunctive relief sought by the Applicants on 24th April 2011 when the Court hears both counsel from 8.00am to 9.15am o'clock this morning.

DATED at Port-Vila this 24th day of April 2011

BY THE COURT

Vincent LUNABEK
Chief Justice