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[1980-1989] NLR
[Ed – No
page no. in original]
IN
THE SUPREME COURT OF NAURU
(Civil
Jurisdiction)
No. 3A/88
IN THE MATTER OF ARTICLE 36 OF THE CONSTITUTION
AND
IN
THE MATTER OF A REFERENCE TO THE SUPREME COURT
BY
MR. BOBBY
EOE
PETITIONER
Dates of Hearing: 19:8:88;
8:11:88
Date of Decision: 25th
November 1988
P. Aingimea for the
Petitioner
Saksena for the
Republic
DECISION OF DONNE, CJ.
This is a reference under
Article 36 of the Constitution in which the Petitioner asks whether his seat in
Parliament has lawfully
been vacated under the provisions of Article 32(1) (d).
Specifically he asks these two questions:
(1) If his seat has been declared vacant on the grounds of the conditions specified in Article 32(1)(d); and
(2) Has he breached the said conditions specified in the Article.
The matter was first heard
on the 19th August 1988. The Secretary for Justice was made a party to the
proceedings as representing
the Republic and the case was adjourned for written
submissions to be made. I received the last of these on the 31st October and
again heard the parties on the 8th
November.
The petitioner, who was
elected a Member for the Constituency of Meneng at last general election held in
1986, is alleged to have
vacated his seat by reason of his absences from
Parliament without its leave for the period of two months as specified in
Article
32(1) (d) of the Constitution. It is established and agreed that the
absences extended from the 19th May 1988 to the 22nd July 1988.
There were
thirteen occasions on which Parliament met during that period. The petitioner
was absent in the case of each meeting.
He had left for Melbourne on the 5th of
May 1988 with his wife and son. He did not return to Nauru until the 23rd July
1988. The
purpose of the visit was to obtain medical treatment in Melbourne for
the son who was due to receive surgery there. The petitioner,
before leaving,
arranged with one of his Parliamentary colleagues to obtain leave of absence for
him from Parliament to cover the
period of his absences. Towards the end of May
the commercial operations of Air Nauru ceased by reason of there being a strike
by
certain of its pilots. The petitioner in June considered returning to Nauru.
He had been told that Parliament would meet to debate
on the main Appropriation
Bill. He heard in early June about a non-commercial flight of Air Nauru which he
believed was being made
by the airline from Nauru to New Zealand returning to
Nauru on the 5th June. There was some confusion over flight and he alleges
that
he inquired from the Consul-General of Nauru at Melbourne about it and believed
he would take steps to get him on the flight.
It appears he never heard from the
Consul-General further thereon and did not get on the plane. The reason for this
confusion is
not clear but in the result it plays but a small part explaining
the reasons for the petitioner's absences. Counsel for the petitioner
tends to
emphasise this particular incident as indicating that the petitioner's inability
to return to Nauru before he did was due
to some political machinations
preventing him from doing so. Although the petitioner in fact did not return
until the 23rd of July
there were non-commercial flights from Melbourne to Nauru
between the 5th of June and the 23rd of July which were available on which
I am
satisfied he could have travelled. He has given evidence. In the witness box he
was completely frank and honest and his evidence
dispelled any suggestion of the
political interference suggested. He said that his main concern was the health
of his son. His wife
returned by Air Nauru on the 11th of June and he was left
alone with the boy and it is understandable that he should desire to stay
with
him. He said he did not leave a contact address in Melbourne with the
Consul-General, but had been in communication with Air
Nauru about flights. The
airline had told him about some but not all. During his time in Melbourne, the
petitioner made enquiries
from time to time from his colleagues in Nauru about
the progress of Parliament.
The
petitioner believed that Parliament had granted him leave of absence over that
particular period, during which there were 13 meetings
of Parliament. In fact no
leave was ever granted. Surprisingly there was only one attempt over the whole
period to
obtain leave and that was on the 16th of June 1988. On that day the House was
meeting and was about to consider an adjournment of
an uncompleted debate in
committee. The Member for the Constituency of Ubenide, Mr. Kennan Adeang,
intervened and addressed the Speaker
as follows
"......May I ask leave for my other colleague from Meneng or not. He has to be excused on medical grounds."
The
Speaker replied:
"This is not the time. I think you have missed your cue. You should have asked that during motion time. Now this is an adjournment of the committee stage."
The
Business house proceeded with the Minister for Finance moving the adjournment.
There the matter rested and thereafter during the
period in question, the matter
of leave for the Petitioner was never raised and Parliament has never granted
leave. Nor was there
any objection taken in Parliament to the Speaker's ruling
at the time it was given or
later.
The last meeting of
Parliament of the period under review at which the petitioner was absent was the
22nd July. On that day, due to
the fact that some members refrained from
entering the Chamber of the House, there was no quorum and the Deputy Speaker,
after having
ascertained that fact, adjourned the House until the 25th of July.
On that day the petitioner was present, he having returned to
Nauru by air on
the 23rd of July. At this meeting the Minister for Works and Community Services
questioned the right of the Petitioner
to sit in Parliament in view of his
absences. Subsequently, the Deputy Speaker of the House notified the petitioner
by letter that
his seat had been vacated by reason of his being disqualified
pursuant to the provisions of Article 32(1)
(d).
The Speaker issued a writ for
election under the provisions of the Electoral Act and the by-election to be
conducted by the Returning
Officer was fixed for the 27th August 1988. On the
19th August 1988 this Court issued an injunction halting the holding of the
election
by the Returning Officer until further order of the
Court.
Jurisdiction
Article
36 of the Constitution gives this court the jurisdiction to entertain this
application. It reads
"Any question that arises concerning the right of a person to be or to remain a member of Parliament shall be referred to and determined by the Supreme Court."
This
article may be invoked by any person with the necessary "locus standi" who
questions the qualification or disqualification in
law of a member of
Parliament. In this case it is the member himself who petitions, but, the right
is also available to a constituent
who questions the legal capacity of a person
to represent him in Parliament. Likewise the Cabinet, the Speaker, or Parliament
itself
would have the necessary legal standing to initiate proceedings under the
article, but it does not follow that on the happening of
any of the events
provided for in Article 32(1) the Court must be called upon to make a
determination thereon. Article 36 gives the
right to any person legally entitled
so to do, to challenge the legality of a disqualification under Article 32(1).
Here the petitioner
challenges the legality of the vacation of his seat on the
grounds that he has not breached the conditions laid down in Article 32
(1) (d)
for the vacation of a seat in Parliament. He requires this Court to determine
that he is still lawfully a member of
Parliament.
The
Operation of Article 32(1)
It is
well established in law that the vacancy of the seat of a member of Parliament
becomes automatic immediately the disqualifying
circumstances have arisen - see
Constitutional
Reference No. 1 of 1977 reported in Part
A Nauru Law Reports (1969-1982) at p. 57. A similar provision to Article 32(1)
(d) is enacted in Vanuatu in The
Members of Parliament (Vacation of Seats) Act
1983 Section 2(d) which requires the vacation of a member's seat if he is absent
without
leave from three consecutive sittings of Parliament. In a decision
interpreting this provision recorded in Case No. 116 of 1988
Sope and Ors v
Attorney-General and Anor delivered on
the
16th
August 1988 in the Supreme Court of Vanuatu Ward C J. said at page 8:
"Section 2(d) is mandatory,.... Once a member is absent from three consecutive sittings without permission, he shall vacate his seat..... no declaration is required and the vacation is of immediate effect... neither does the fact of any legal challenge suspend the vacation of the seat."
This
was also the view of Speight CJ. in the Cook Islands High Court case of
Rua and Ors v
Moate O.A. No. 1/1987
delivered on the 23rd August 1987 and affirmed on appeal and to which further
reference will be made
hereunder.
Counsel for the parties
appeared to place some weight on the notification by the Deputy Speaker of the
vacancy of the petitioner's
seat, indicating the view that such notification was
a requisite step to be taken before the vacancy could occur. As I have said,
the
seat of a member becomes vacant immediately the disqualifying circumstances
occur and whether the. Speaker or his Deputy did
or did not make any declaration
to the House or give any notification to the member makes no difference to the
fact that the seat
has been vacated and no procedural step is required in law by
the Speaker to effect the
vacancy.
The
meaning of Article 32(1) (d)
It is
pursuant to Article 32(1) (d) of the Constitution that the petitioner is
required to vacate his seat in Parliament. It reads:
"32(1) A member of Parliament vacates his seat:
(d) If he is absent without leave of Parliament everyday on which a meeting of Parliament is held during a period of two months."
The
petitioner submits that the meaning of the phrase "on every day on which a
meeting of Parliament is held over a period of two
months", is not clear. He
refers to the Standing Orders of Parliament and, in particular, the definition
of "session" therein and
contends the words "on every day in which a
meeting...is held "relates to that definition which says:
"'A session' means any series of sitting days during which the Parliament does not adjourn for a period longer than seven days."
That
being so, he argues that the meetings referred to in the Article are the "series
of sitting days" which constitute a "session"
of Parliament within the meaning
of the Standing Order so that in order that a seat be vacated the member must be
absent without
leave of Parliament" in a session of Parliament (i.e. as defined
in Standing Orders) held during a period of two months". Therefore,
he says, the
"period of two months" commences "on each first sitting of a session and ends 7
days after adjournment of the last sitting
of the session." However the support
he seeks from Standing Orders, in particular from the definition of "session"
therein does not
help him.
The
Standing Orders of Parliament were promulgated 15 years after the enactment of
the Constitution and were never at that time contemplated
by Parliament. Apart
from the fact that they do not have the force of the proceedings of Parliament,
even if they had how far one
may look to a later statute is questionable. This
was pointed out by Lord Reid in
Kirkness v John
Hudson & Co Ltd (1955) A.C. 696 who
said (at p.735) that the earlier decision in
Ormond Investment Co
v. Betts (1928) A.C. 143 afforded
"conclusive and binding authority for the proposition that, in construing a
provision of an earlier Act,
the provisions of a later Act cannot be taken into
account except in a limited class of case". For that later statute to become
relevant
the words or phrase used in the earlier statute must be on the face of
them "obscure or ambiguous" or "open to diverse meanings".
Besides the
Constitution itself defines "session" in Article 81(l) and if that term is to be
considered in the process of interpreting
the phrase in question then it must be
considered in the light of the meaning given to it in the Constitution. The
meaning is in
conflict with that in Standing Orders. Article 81(1) defines the
term as:
""Session" means the period beginning...... after Parliament has at any time been prorogued or dissolved and ending when next Parliament is prorogued or dissolved."
That
definition and Article 40(1) fix the meaning and bounds of a session of
Parliament. That is the meaning which must prevail. Using
the term in that sense
cannot assist the petitioner in his interpretation. While it is perhaps
irrelevant I should mention that the
submission of the petitioner to the effect
that to apply the term as defined in the Constitution to Articles 41(3) and
62(3) would
result in "an absurd" meaning has no substance. These Articles
provide for the Speaker to summon Parliament in the event of certain
contingencies arising at any time. If it happened that they arose while
Parliament was prorogued and thus was not in session, it
would be necessary for
the Speaker to appoint and fix a new session as opposed to a sitting and the
respective Articles give him
that
power.
There is, however, no
necessity to resort to external aids in interpreting the Article. The primary
duty of the Court is to find the
natural meaning of the words used in the
context in which they occur, that context including any other parts of the
enactment which
may throw light on the sense in which Parliament used the words
in question R v
Clixby (Inhabitants) (1847) 11 J.P. 568.
The Article sets out the elements which must be satisfied before a member's seat
in Parliament is vacated as being:
1. There must have been daily meetings of Parliament held.
2. The meetings must have been held during a period of two months.
3. During that period the member must have been absent without the leave of Parliament on each occasion a meeting was held.
As
to element 1, while there is no definition of the term "meeting" in the
Constitution, a meeting in the ordinary meaning of the
term is "an assembly or
getting together" (Shorter Oxford Dictionary) (3rd Edn.). A meeting of
Parliament is an occasion when Parliament
assembled. We are here concerned with
"meetings" on "everyday on which a meeting of Parliament is held". That
qualifies what days
count.
As to
element 2, the question as to how the period specified is calculated must be
considered. The result must be consistent with
the Constitution as a whole, do
justice to the persons involved as well as give effect to the apparent intention
of the makers of
the Constitution. Now the purpose and intent of the Article is
to punish effectively parliamentarians who do not give their time
and attention
to their duties in Parliament by attending to its business when sitting.
Parliament has said that absences of members
without its leave during a period
of two months disqualifies that member from sitting. His seat becomes vacant.
The period is "during"
two months. The period defined is not an absolute one. To
treat the term as absolute would imply that if the transgression is greater
than
two months there is no penalty. This would be absurd and defeat the intention
and purpose of the Article.
For
the period to apply there must be two qualifications:
1. The Article requires that the absence must be on days when meetings are held during the period. Use of the expression "everyday" and the requirement for there to be a "period" indicate the necessity for a plurality of days so that there can be both a commencement and a completion.
2. The period must start with a sitting and finish with one and also include at least one sitting day in between. The reason for this is that to be able to choose a start or a finish which is not a sitting day opens the way for arbitrary application of the Article. Further the failure to require that there be at least one sitting day in between would fail to acknowledge that the article requires there to be a failure "during" the period.
The
context in which the word "during" occurs in the Article is I consider "during
the whole". We must therefore look to the whole
period concerned (any given
period of 2 months) and to every qualifying event that takes place within that
period. If we can delineate
a period which starts and finishes with a qualifying
event, then it follows that the events all occurred during the period. The
context
of the Article is the context of attendances at meetings of Parliament
which in places such as Nauru, do not occur on everyday of
the year. Therefore
there can be no suggestion that the whole period in this case means each and any
everyday of the two months.
On the contrary it means each and everyday when
there is a sitting of Parliament in any period of two
months.
In the result I find that
for Article 32(1) (d) to be applicable in relation to the period specified
therein the following conditions
must be satisfied:
1. The commencement date of the period of two months must be a day when Parliament met,
2. The conclusion of the period must be a day upon which there is a meeting of Parliament, and that day must be two months or more from and including the first meeting day when the member was absent, and
3. There must be at least one meeting day during the period of two months.
As
to element 3, that speaks for itself. There must be absence without the leave of
Parliament on each occasion Parliament was held
during the
period.
Applying this
interpretation of the Article to the present case, parliament met this year on
the 19th and 31st May, on the 9th, 10th,
11th, 13th, 14th, 15th, 16th, 17th,
20th and 21st June and on the 22nd July (the legality of this latter meeting is
challenged).
The first and last meeting extend during a period of two months
with eleven meetings in between. The petitioner was absent on each
of these days
without Parliament having granted him leave on any of them. Assuming all these
days are legal meetings it is clear
he satisfies the conditions laid down in
Article 32 (1) (d) which require the vacation of his seat in
Parliament.
However, it is
contended that the conditions for the vacation of the petitioner's seat have not
been met because firstly, the final
day of the period was not legally a meeting
day since Parliament was not quorate on that day and secondly, that a motion for
the
granting by Parliament of leave of absence for the petitioner was wrongfully
disallowed by the Speaker of Parliament on the 16th
June. We shall now consider
these
contentions.
The
Parliament of 22nd July
1988:
Business was transacted on
all the meetings of Parliament over the two month period under review except at
the meeting held on the
22nd July 1988. The Clerk of Parliament has certified
that, on that day the Deputy Speaker took the Chair at the time appointed for
the meeting, he read the prayers. It was then pointed out to him by a member
that the required number of members to constitute a
quorum was not present after
the bells were rung pursuant to Standing Order 29. Parliament was then adjourned
by him without transacting
any business until the 25th July. There was
apparently on that day a concerted decision by a body of members not to attend
Parliament.
There is no evidence to indicate for what reason that step was
taken.
The contention is that as
that Parliament was not quorate on that day, the sitting was invalid and of no
effect. However I have no
doubt that there can legally be a meeting or sitting
of Parliament even though no business may be transacted at it. "Sitting" is
defined in Standing Order No. 2 of Parliament as "the daily meeting of the
Parliament from the ringing of the bells at the appointed
time until the
adjournment of the Parliament". The definition of the term in the Constitution
is of the same effect. That means that
the moment the bells ring, the meeting of
Parliament begins and continues until Parliament is adjourned. When Parliament
met on the
22nd July 1988, the bells were rung, the formal entry was made, the
Deputy Speaker took the Chair and prayers were said in accordance
with Standing
Order No. 30 and then in accordance with Standing Order No. 29 and Standing
Order No. 31, the Deputy Speaker instituted
the proceedings for determining that
a quorum was not present. On being satisfied that a quorum was not present he
then adjourned
Parliament in accordance with the authority given in the said
Standing Orders. Until Parliament was adjourned it was sitting although
it was
debarred by the Article 45 of the Constitution from transacting any business
other than ascertaining whether a quorum was
present. This was a situation with
which the Parliament of the Cook Islands was confronted in 1987 when members of
a political party,
one of whose members was in danger of being unseated for
non-attendance, in the belief that absence of a quorum aborted a sitting,
entirely refrained from entering the Chamber of the House. The Speaker, after
prayers and the ringing of the bells, adjourned the
Parliament without any
business being transacted because of the lack of a quorum (the relevant Standing
Order providing for this
procedure is similar to that of the Nauru Parliament).
Speight C J. dealing with the point in
Rua's
case (supra) said at page 4:
"this formality of procedure.... contrary to the belief of some members constitutes a sitting of the House" and further "The whole affair arises therefore from a futile misunderstanding."
I
therefore hold that the assembly of Parliament on the 22nd July 1988 was a
lawful meeting of Parliament and as such must be included
in the computation of
the two month period specified in Article 32(1) (d). It was the last meeting of
that period and is properly
included therein. The petitioner was not present at
it.
Leave of
absence:
In order to avoid
disqualification under Article 32(1) (d), the member must obtain leave of
absence. The leave is granted by Parliament
in accordance with Standing Order
No. 22 which reads:
"Leave of absence may be given by the House to any member on motion without notice, stating the cause and period of absence; and such motion shall have priority over all other business"
The
effect of such leave of absence is stated in Standing Order 23
as:
"A Member shall be excused from service in the House, or on any Committee, so long as he has leave of absence."
It
is common ground that the petitioner was never granted leave of absence by
Parliament. During the relevant period of two months
he was in Melbourne, he had
attempted without success to get on a flight to Nauru from Auckland on the 4th
June 1988 by communicating
with the Consul-General at Melbourne but was
unsuccessful. When his wife returned to Nauru by Air Nauru on the 11th June he
has said
he decided to stay in Melbourne to be with his son who was receiving
medical attention. He had arranged with a Parliamentary colleague,
the
Honourable Kennan Adeang to obtain leave of absence from Parliament. On the 16th
June 1988, Mr. Adeang raised the question of
leave of absence for the petitioner
in the House. According to official English version in Hansard this is what
happened:
Mr. Adeang (Ubenide) - May I ask leave for my colleague from Meneng or not. He is to be excused on medical grounds.
The Speaker - This is not the time. I think you have missed your cue. You should have asked that during the motion time. Now is the adjournment of the committee stage.
While
there does not appear to be a direct ruling that the application for leave was
disallowed, it being suggested only that it was
the wrong time for it, it can, I
believe, be inferred it was such a ruling. It is also clear that there was no
objection raised to
the ruling and the matter has never been pursued further in
Parliament by Mr. Adeang or any other Member. The consequence is that
Parliament, the only authority that can grant leave, has not done so. Leave
cannot be granted because there was silence on the issue:
if there is no
decision, there is no
leave.
Standing Orders of
Parliament are quite clear as to the right of a member to object to a ruling
given by the Speaker and it is quite
wrong to suggest, as has been done in this
case, that to dissent from the Speaker's ruling would "amount to misconduct or
disobedience"
and be "contemptuous". Standing Order No. 82
states:
"If any objection is taken to any ruling of the Speaker, such objection must be taken at once, and a motion of dissent, to be submitted in writing" moved without notice, if seconded, shall be proposed to the House, and debate thereon shall ensue"
Every
member must be presumed to be aware of this Order. It provides the procedure for
the settling in the House of any objection
to the Speaker's ruling. It is, in
effect, an appeal to the House which is empowered to adjudicate on it. Whether
the Speaker was
right or wrong in his ruling is thus
decided.
The petitioner,
nevertheless, submits that notwithstanding this, Article 36 gives a right of
judicial review in the circumstances
and that if the Speaker's ruling was wrong
in law this Court can correct it. Should that be the case, there is, of course
still the
very real problem that the nub of the matter is that it is Parliament
that grants the leave of absence and even if the Court is able
in law to correct
the Speaker's ruling, in the event of it being wrong, does the Court then have
the lawful authority in the circumstances
to supplant Parliament and itself
grant the leave or alternatively order Parliament to do
so?
The sovereignty of Parliament
is reinforced in the Constitution. It confers on Parliament the right to declare
its powers, privileges
and immunities (Article 30) and under the authority of
that Article, Parliament enacted the Parliamentary Powers, Privileges and
Immunities Act 1976. Section 21 thereof declared that Parliament's powers,
privileges and immunities and those of its members and
officers are identical to
those of the United Kingdom House of Commons. It also provides in Section 26 as
follows:
"26. Neither the Speaker nor any officer of the Parliament shall be subject to the jurisdiction of any Court in respect of the lawful exercise of any power conferred on or vested in the Speaker or the officer by or under this Act."
This
effectively answers any argument that this Court has jurisdiction to correct any
rulings of the Speaker of the Parliament of
Nauru. There is no question that in
this case the Speaker was lawfully exercising his power in ruling on the motion
for leave. He
is the interpreter of the rules and procedures of the House.
Halsbury
(4th Edn) para 1143 p. 455. It is contended he made an error in ruling. If he
did there is no appeal in this Court against the
ruling.
Furthermore it is an ancient
privilege of Parliament embodied in the claim in Article 9 of the Bill of Rights
1689 that "freedom of
speech and debate or proceedings in Parliament ought not
to be impeached or questioned in any court of law or place outside Parliament".
De Smith's Judicial
Review of Administrative Action (4th Edn)
at page 469 states the position in this way:
"The courts have no jurisdiction to restrain by injunction, or otherwise to pass upon, any conduct that forms part of proceedings in Parliament, even though the matter in issue is not directly connected with the process of legislation. In the well-known case of Bradlaugh v. Gossett (1884) 12 Q.B.D. 271, the court refused to award the plaintiff an injunction against the Serjeant-at-Arms to restrain him from enforcing an order of the House of Commons requiring him to exclude the plaintiff from the House, or a declaration that the order of the House was void. Assuming that the plaintiff
was right in his contention that the order of the House was based upon the misconstruction of a statute, nevertheless the courts had no jurisdiction to interfere, for the matter fell exclusively within the scope of the privilege of the House to regulate its own internal proceedings."(The italics is mine)
What
is sought here by the petitioner is an investigation into what undoubtedly was
"a proceeding in Parliament". The term, while
never having been expressly
defined by the Courts, has been the subject of oblique references from time to
time. An American judge
Parsons C J. in
Coffin vs
Coffin 4 Mass. 1 (a judgment of the
Supreme Court of Massachusetts) said:
"I will not confine it to delivering an opinion, uttering a speech or haranguing in debate, but will extend it to giving a vote to the making of a written report, and to every other act resulting from the nature and in the execution of the office"
Erskine
May on Parliamentary Practice (20th Edn)
quotes at page 83 the 1938-39 Parliament Select Committee of the House of
Commons on the official Secrets Act which states
the term included "everything
said or done in the House in the transaction of Parliamentary
business."
Acknowledgment by the
Courts of this privilege of Parliament, namely, that the control of the House
over its internal proceedings
is absolute and cannot be interfered with by the
courts, is to be found in many cases, the most quoted being Bradlaugh v Gossett
(supra). In that case, Mr. Bradlaugh, having been returned as a member of
Parliament, required the Speaker to call him to the table
for the purpose of
swearing him in as a member. He claimed to make an affirmation instead of taking
an oath. The Speaker declined
to allow him to do this and the House subsequently
resolved he could not qualify himself by making the affirmation and that he
should
be excluded from the House. The Sergeant-at-Arms accepted the instruction
of the House and an action was brought by Mr. Bradlaugh
against the Sergeant
praying for an injunction to restrain him from carrying out the instruction. The
question before the Court was
whether such an action could be entertained. Lord
Coleridge C J. p. 275 said:
"What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject,-Burdett v. Abbott 14 East, 1, 148 and Stockdale v. Hansard 9 Ad. & E.1.; - are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it." 14 East, at p. 152"
Stephen
J. at pp. 278-279 said:
"Many authorities might be cited for this principle; but I will quote two only. The number might be enlarged with ease by reference to several well-known cases. Blackstone says at 1 Com. 163:"The whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.'" This principle is re-stated nearly in Blackstone's words by each of the judges in the case of Stockdale v. Hansard. As the principal result of that case is to assert in the strongest way the right of the Court of Queen's Bench to ascertain in case of need the extent of the privileges of the House, and to deny emphatically that the Court is bound by a resolution of the House declaring any particular matter to fall within their privilege, these declarations are of the highest authority. Lord Denman says at p. 114: "Whatever is done within the walls of either assembly must pass without question in any other place." Littledale, J., says at p. 162: "It is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned." Patteson, J., said at p. 209: "Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should: not be liable to examination elsewhere." And Coleridge, J., said at p. 233: "That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity."
Mr.
Bradlaugh contended that the Speaker and the House had acted unlawfully since
the decision to prevent him making his affirmation
was contrary to the
Parliamentary Oaths Act then in force. On this point Lord Coleridge said at page
276-277:
"It is said that in this case the House of Commons has exceeded its legal powers, because it has resolved that the plaintiff shall not take an oath which he has a right to take.........But there is nothing before me upon which I should be justified in arriving at such a conclusion in point of fact. Consistently with all the statements in the claim, it may be that the plaintiff insisted on taking the oath in a manner and under circumstances which the House had a clear right to object to or prevent. Sitting in this seat I cannot know one way or the other. But, even if the fact be as the plaintiff contends, it is not a matter into which this Court can examine. If injustice has been done, it is injustice for which the Courts of law afford no remedy. On this point I agree with and desire to adopt the language of my Brother Stephen. The history of England, and the resolutions of the House of Commons itself, shew that now and then injustice has been done by the House to individual members of it. But the remedy, if remedy it be, lies, not in actions in the courts of law (see on this subject the observations of Lord Ellenborough and Bayley, J., in Burdett v. Abbott, 14 East, 150, 151 and 160, 161), but by an appeal to the constituencies whom the House of Commons represents."
Stephen
J. said at page 285
"The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal."
and,
at page 286
"In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologize for the supposition) wilfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses. This is enough to justify the conclusion at which I arrive."
More
recently in British
Railways Board v. Pickin (1974) AC 765,
Lord Morris of Borth-y-Gest commented:
"It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders ........It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed."
I
In
the case of Browne v
Cowle (1895) Vol. 5-6 Q. L. J. R. 234,
the Supreme Court of Queensland, dealing with an action by a member of the
Legislative Assembly
against the Speaker thereof relating to an incident which
occurred in the Assembly, was concerned with this question of Parliamentary
privilege. Griffith C J. at page 241 (1st Column) said:
"The error alleged, if it be one, is in my opinion one of procedure only, of which I think the Legislative Assembly themselves are the judges, without appeal to this court. It is hardly necessary to point out that the practice of Parliament is a branch of knowledge of itself, of which successive Speakers have been distinguished exponents. I believe this is the first instance in which the ruling of a Speaker, which is subject to appeal to the House itself, has been sought to be submitted to the review of a court of justice. I am not disposed to be the first judge to review a Speaker's decision on the construction of the Standing Orders - a function which requires not only a consideration of the printed document, but an acquaintance with the law and practice of Parliament, with reference to which the Standing Orders themselves are framed, and without which the judge undertaking the duty would be ill-equipped for the task."
Recently
in the Pacific, the Supreme Court of Tonga, in the case of
Sanft v Fotofili and
Others (1987) LRC (Const.) 247, was
called upon to consider the validity of a certain enactment passed by the
Legislative Assembly of Tonga
on the grounds that several steps of irregular
procedure in Parliament had occurred which rendered the enactment invalid. In
striking
the action out, Martin J. at page 249 (lines a5 - line d4)
said:
"For any reasons given in my previous judgment, which I will not repeat here, I hold that this court does have the power to decide whether a constitutional or statutory requirement has been observed. If not, any act of the Legislative Assembly in contravention of that condition would be invalid. But this Court has no power to pronounce on the validity of the "internal proceedings" of the House. That, in my view, includes the procedure adopted within the House to conduct its business.
I turn back to the words of Stephen, J., in Bradlaugh v Gossett (1884) 12 QBD 276 at 280:
"...the House...has the exclusive power of interpreting the statute, so far as the regulation of its proceedings within its own walls is concerned; and.....even if that interpretation should be erroneous, this court; has no power to interfere with it directly or indirectly."
Even if the Rules of Procedure were breached (and I can make no finding whether or not this was so), this is a matter over which this court has no jurisdiction."
In
this present case there is no question that what is sought by the petitioner to
be reviewed by this Court is a "Proceeding in Parliament".
There was an attempt
to move a motion to obtain the leave of Parliament for him to absent himself.
This was made to the Speaker in
Parliament. The mover was Mr. Adeang. His
attempt to do so was rejected by the Speaker. Now, as I have already said there
was a clear
procedure available under Standing Orders to have the Speaker's
ruling reviewed by Parliament, which, of course, was the authority,
and indeed
the only authority, empowered to grant leave. Parliament did not get the
opportunity to consider further either the ruling
of the Speaker or the
application for leave since the matter was not pursued after the Speaker's
decision. The matter arose in Parliament,
the procedures of which allowed the
whole matter to be adjudicated upon in Parliament. To use again the oft quoted
words "whatever
is done within the walls of Parliament must pass without
question in any other place." Consequently this Court, I am satisfied, has
no
jurisdiction to review what is here a proceeding in Parliament and the
application to do so is
declined.
In the result it is
clearly established that the petitioner was absent without leave of Parliament
for the period laid down by Article
32(1) (d) of the Constitution and therefore
the conditions specified therein have been satisfied. The seat in such
circumstances
must be considered vacant. I accordingly answer the questions
posed in the petition as follows:
Question 1 Has the seat of the Petitioner been declared vacant on the grounds specified in Article 32(l) (d) of the Constitution?
Answer Yes.
Question 2 Has the Petitioner breached the conditions specified in the said Article 32(1) (d)?
Answer Yes.
When
this petition was filed, contemporaneously therewith was an application for an
injunction to prevent the holding of the election
ordered by the Returning
Officer pursuant to a writ under Electoral Act 1965-1973 issued by the Speaker
for an election of a member
of Parliament to fill the vacancy of the seat
formally held by the petitioner. I accordingly issued an order restraining the
Returning
Officer from taking any further steps in the election until further
order of this Court.
It should be
noted that this order did not impugn the Speaker's writ but merely postponed the
date of the holding of the election.
The Speaker's writ is still a valid one and
all steps taken in pursuance of it, such as the acceptance of nominations for
the election
are valid. The Court now orders the injunction to be lifted and the
election may now proceed at a date to be fixed by the Returning
Officer.
CHIEF JUSTICE
Solicitor for the
Petitioner:
P.
Aingimea
Nauru
Solicitor
for the Republic:
Department of
Justice
Nauru
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