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IN THE SUPREME COURT OF NAURU
CIVIL ACTION NO. 13/97
BETWEEN:
HONS. L.G.N. HARRIS, CLINTON BENJAMIN,
NIMROD
BOTELANGA, REMY NAMADUK,
DOGABE JEREMIAH, RUBEN KUN AND
ANTHONY AUDOA
PLAINTIFFS
AND
HON. KENNAN ADEANG, MP, SPEAKER
FIRST DEFENDANT
AND
H.E. KINZA CLODUMAR, MP, PRESIDENT
SECOND DEFENDANT
AND
HON. VASSAL GADOENGIN, MP, MINISTER FOR JUSTICE
THIRD DEFENDANT'
AND
SECRETARY FOR JUSTICE
FOURTH DEFENDANT
CORAM:
DONNE,
C.J. DILLON, J.
Date of
Hearing: 14; 15; 16 January, 1998
Date of Judgment: 27th Feb.
1998
Audoa for Plaintiffs
No appearance of First Defendant
Hulme
and Connell for Fourth Defendant
JUDGMENT OF DONNE, C.J.
This is an action in which the Plaintiffs pray that
"appropriate orders be made to nullify the business enacted in the House (of
Parliament)
at the meeting held on the
12th June 1997".
The second
and third Defendants, against whom no orders or relief were sought in the
action, were dismissed from the suit on the
4th September 1997, and the fourth
Defendant as nominee of the Republic of Nauru under section 11(2) of the
Republic Proceedings Act
1972 was added pursuant to Order 13 Rule 13 of the
Civil Procedure Rules as amended. The first Defendant has not entered an
appearance
in the suit.
The case was referred to the Full Court by an
order made under the Courts Act 1972. It was set down for consideration in mid
November 1997. However, due to the illness of one of the judges, it was not then
considered.
The Court was next able to be convened at Auckland on the
14th
15th and
16th January 1998.
The facts
upon which the action is founded arise from the meeting of Parliament of the
12th June 1997 to which the
Plaintiffs, as Members, were summoned. For reasons, which are not here relevant,
they and one other Member,
in all 8, did not attend the sitting. Parliament
consists of 18 Members including the Speaker. Eight members and the Speaker
attended
the sitting. One other Member, who had been granted leave of absence on
the ground of illness, was also absent. The business of Parliament
that day,
according to the Plaintiffs, consisted of, a statement by the Speaker
complaining about their actions, a resolution to
refer the complaint to the
Privileges Committee of Parliament and the introduction of and subsequent
enactment of 18 Bills which
on the
13th
June 1997 were certified by the
Speaker pursuant to Article 47 of the Constitution and in consequence thereof
are now laws of the
Republic.
The relevant issues in the cause are raised
in the Statement of Claim in the following paragraphs:
1. The plaintiffs are all citizens of Nauru and Members of the 13th' Parliament of Nauru;
2. That the plaintiffs represent various electorates of Aiwo, Boe, Buada, Ewa/Anetan, Meneng, Ubenide and Yarren;
3. That on the 12th May, 1997 (sic) a Parliament Meeting was held notice of which was given by the Speaker the day before;
4. That the Meeting was held without the quorum stipulated by Article 45 of the Constitution of the Republic of Nauru;
10. That the Speaker chose to ignore the need for him to ensure that the deliberations of, and the procedures followed by, Parliament are in accord with, and not in contravention of, the requirements of the Constitution of the Republic of Nauru;
11. That the Speaker's deriliction of his duties and responsibilites as stated in paragraphs 4 and 5 above led that Meeting of the 13th Parliament to deliberate in a serious state of want of quorum facilitated improper passage of important legislations (sic) without proper scrutiny by Parliament;
19. That such a state of the House as described in paragraphs 4 and 5 above, is a clear breach of Article 45 of the Constitution of Nauru, and any business transacted thereof is ultra vires and therefore null and void; and
20. For reasons set out above the plaintiffs move that the Supreme Court as final arbiter over Constitutional issues and upholder and protector of the Constitution, cannot and should not condone the commissions and/or omissions of the Speaker, the President and the Minister for Justice with procedures stipulated in the Constitution, and accordingly incumbent on the Honourable Court to protect and uphold the Supremacy of the Constitution by making appropriate orders to nullify the business transacted in the House at the Meeting held on 12th June, 1997.
The defence admits the
sitting of Parliament of which the Plaintiffs are Members but denies that there
was no quorum. The main defence
is the plea that the issue is not justiciable
since to consider it would require the Court to inquire into the practice and
procedure
of Parliament which is, solely within the province of Parliament.
There was in addition put in issue the question as to who summoned
Parliament,
an issue which I consider of little consequence. Nothing turns on it and I have
no hesitation in holding that Parliament
was lawfully convened.
From this
defence, it was obvious that the first task of the Court was to consider the
defence of justiciability since if that were
sustained the Court would have no
jurisdiction to proceed further into the cause. At my suggestion, it was agreed
that the matter,
because of this important constitutional question, should be
referred to the Full Court and that at this stage no evidence be taken.
For the
convenience of counsel, it was also agreed that submissions on the law could be
made in writing to the Court for its consideration
and ruling.
On the
question of jurisdiction there arise three issues.
Firstly, if this Court
is required in this case, to examine and question the proceedings of Parliament
of Nauru on the 12th June 1997,
would such inquiry be prohibited as a breach of parliamentary
privilege;
Secondly, if after lawful inquiry into those proceedings, the
Court finds there has been non-compliance by Parliament of Article 45
of the
Constitution as to the quorum of Members thereat, can the Court by order nullify
the business there transacted, in particular,
the Bills enacted and subsequently
certified by the Speaker of Parliament under Article 47 as law;
Thirdly,
have the Plaintiffs as Members of Parliament the locus standi to institute this
action.
1. The Parliamentary Privilege of Non-impeachment.
The foundation of this claim rests Parliament at its
sitting on the 12th June on an
alleged breach by 1997 of ArtiCle 45 of the Constitution which reads:
"45. No business shall be transacted at a sitting of Parliament if the number of its members present, other than the person presiding at the sitting, is less than one-half of the total number of members of Parliament."
As above stated, the Defendant
contends that to determine this allegation, the Court must necessarily inquire
into the parliamentary
proceedings in question which the privilege of
non-impeachment enjoyed by Parliament prohibits it from doing. Consequently,
that
privilege must be upheld. The Plaintiffs, while conceding the privilege is
a lawful one, argue that notwithstanding, the Constitution
being the supreme
law, in cases where Parliament acts in contravention of its provisions, the
Court can intervene to judicially review
the unlawful action. Alternatively,
they submit, that the said proceedings by reason of their being conducted
without a quorum, did
not constitute a proceeding of Parliament; they were only
a meeting of those Members present. This, they say, means there is no privilege
available for assertion and there is no bar to a judicial review of that
proceeding.
The Origin of the Privilege.
The privilege of non-impeachment of Parliament originating
300 years ago, is enjoyed by the Parliament of the United Kingdom as a
common
law right and, unfettered, it guarantees the sovereignty and independence of the
legislature. Nauru, on the other hand, in
its constitution creating its
Parliament, adopting the Westminster model, also conferred on the legislature
the power to declare
its own privileges and immunities (Articles 37 and 38).
Thus, it has done by enactment to be referred later in this decision.
The Application of the Privilege.
It is well established that, in the common law, the Court
will not interfere with proceedings in Parliament since to do so would
constitute
a breach of this parliamentary privilege of freedom from impeachment
or question. As Lord Reid said in
British Railways Board v Picken
(1974) A.C. 765 at p. 786:
"For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict .... The whole trend of authority for over a century is clearly against permitting any such investigation."
Erskine
May on Parliamentary Practice
(21st Edn) refers to
Bradlaugh v Gossett (1884) 12
Q.B.D.371 which the learned Author says is "an unqualified recognition by the
courts of their incompetence to inquire into
internal proceedings of
Parliament". In that case, Bradlaugh sought an injunction to restrain the
Sergeant-at-Arms of the House of
Commons from excluding him from the House
following a resolution that he has been prevented from taking the oath of
office. The House
of Lords unanimously ruled that there was no jurisdiction in a
Court to interfere with the order as the House could regulate its
own internal
proceedings. Lord Coleridge C.J. in his decision at p. 275 said:
"What is said or done within the walls of Parliament cannot be enquired into in a Court of Law."
At p.285, Stephen J.
said:
"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."
In
Picken's case (supra) almost a
century later the House of Lords, overruling the Court of Appeal (which held
that the question whether a court
was competent to go behind a private, but not
a public Act to investigate whether it had properly obtained, was a triable
issue)
- upheld and strongly affirmed the privilege of Parliament of its
exclusive right to regulate its own proceedings. Lord Reid at p.787
quoted from
Edinburgh and
Dalkeith Railway Co. v Wauchope (1842) 8 CL at 710; 1 Bell 252 which
dealt with a similar situation, the decision of Lord Campbell which
reads:
". ..... all that a court of justice. can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry. will hereafter be entered into in Scotland, and that due effect will be given to every Act of Parliament, both private as well as public, upon the just construction which appears to arise upon it."
His Lordship observed that as far as he
was aware, no one since 1842 has doubted that Lord Campbell's statement of the
constitutional
position was a correct one. Under its constitutional authority to
declare its privileges and immunities and prescribe the mode of
their
application, Parliament enacted the Parliamentary Privileges, Powers and
Immunities Act 1976. Section 21 thereof
provides:
"In addition to the powers, privileges and immunities expressly provided for in this Act, the Parliament and members shall have all the powers, privileges and immunities which the House of Commons of the Parliament of the United Kingdom and its members have for the time being, except any of such powers, privileges or immunities as are inconsistent with or repugnant to the Constitution or the express provisions of this Act."
The common
law privilege of non-impeachment was thereby inherited as a privilege of Nauru's
Parliament - there is nothing in the Constitution
with which it is inconsistent.
There is, in consequence, no impediment to
its being asserted by Parliament
and upheld by the Court. This was a matter which concerned this Court in the
case of In re
Article 36 of the Constitution and in re Bobby Eoe
(1988) 3 SPLR 225 which at page
228 there is stated:
"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 (34 Halsbury (4th edn.) paragraph 1143, page 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."
Apart
from this case, the question of the sovereignty and privileges of Parliament
have not hitherto required judicial consideration
by this Court and there is a
dearth of authority on these questions. Nevertheless, from the Pacific and
elsewhere in countries with
similar constitutions and Parliaments useful
guidelines can be found in cases involving similar questions.
The Supreme
Court of Tonga in
Sanft v Fotofili
and Ors (1987) L.R.C. (Const) 247; (1987) S.P.L.R. 354 considered 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 a5-1ine d4) [S.P.L.R. 356] said:
"For the 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."
In
Edward
Huniehu v Attorney-General and the Speaker of, the National Parliament of the
Solomon Islands, a decision of the Court of Appeal of the Solomon Islands
delivered on the 24th April 1997 on
an appeal against the refusal of the High Court to grant declarations impugning
and declaring as unconstitutional an
act by the Speaker of Parliament and the
business of Parliament resulting therefrom, the Court considered issues such as
we are called
upon here to consider. The action arose as the result of the
Speaker non-complying with the requirements of that country's constitution
(s.67) which provided that if there were a lack of quorum in the House, a Member
must raise the question in which case the Speaker
must suspend and adjourn the
sitting for a specified interval to enable the Members to make up the required
quorum. If after that
interval, the quorum was not established, then the Speaker
must adjourn Parliament to another day. At the sitting in question, on
the
matter being raised by a Member and the Speaker finding there not to be a
quorum, the House was adjourned by him for 15 minutes.
On resumption of the
proceedings, he found there was still no quorum. Notwithstanding that, the
Speaker refused further to adjourn
and. allowed the House to continue its
business. The declarations sought by the plaintiff, the Member who raised with
the Speaker
the matter, (as amended by the Court of Appeal) were:
"(a) The sitting of the National Parliament on 21st day of December 1995 lacked a quorum.
(b) The action of the second defendant in refusing to adjourn Parliament as required by section 67 of the Constitution was unconstitutional.
(c) The meeting of Parliament held on 21 December 1'996 (sic) subsequent to the Second Defendant's refusal to adjourn Parliament was unlawful, unconstitutional and lacked the powers to enact laws for "the peace order and good government of Solomon islands.
(d) The passage of the Mamara-Tasivarongo-Mavo Development Agreement Bill 1995 was unconstitutional and void."
As to whether
the Court had jurisdiction to entertain the suit, it was found by the judges
that there was specifically set out in
the Constitution the requirements for
jurisdiction in section 83(1) and (2) which reads:
"83. (1) Subject to the provisions of sections 31(3) and 98(1) of, and paragraph 10 of Schedule 2 to, this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section.
(2) The High Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly: ........ "
The Court
agreed that these requirements were met in this case. There was, however,
disagreement as to whether all the declarations
sought could be made.
The
majority of the Court (Kapi P, McPherson J) considered that section allowed the
Court to make all declarations sought. Casey J
declined to approve the
declaration that the "the sitting on the
12th day of December 1995 lacked a
quorum". He was of the view that "it was inappropriate for the Court to make it
because the determination
on that matter is the task of the Speaker to make
as part of Parliament's internal
procedure" (p.44). In my respectful view, Casey J's approach to the declaration
as to the quorum and
his refusal to condone it was correct. His view recognises
the supremacy of the National Parliament conferred on it by the privilege
of
non-impeachment, the right for it to be asserted and the necessity for it to be
upheld by the Court. The subject matter of the
other declarations clearly did
not require consideration of this privilege. The refusal of the Speaker to
adjourn, ipso facto, was
a contravention of the requirements of the relevant
Article. It required no ruling or determination by him. To establish it required
no inquiry into parliamentary proceedings. The "parliamentary roll" recorded
it.
A like situation arose in the Cook Islands.
Pupuke Robati
v
The
Privileges Committee and the Speaker of Parliament, a decision of the
Court of Appeal of the Cook Islands (C/A 156/93) delivered on the
17th December 1993 which involved
an action of the Privileges Committee of Parliament in suspending a Member (the
plaintiff) from Parliament
for a period of more than seven days for failing to
apologise for certain statements made in Parliament about another member. It
was
claimed there was no power in the Committee to make such an order to enure
beyond 7 days. The action came before the Appellate
Court by way of a motion to
strike out the plaintiff's' action on the ground that the jurisdiction of the
High Court conferred on
it by the Constitution did not extend to the right to
hear and determine it. The main argument before the Court was the extent, if
any, that jurisdiction allowed the Court to review and pronounce upon the
proceedings of Parliament.
The official "roll" of Parliament recorded the
suspension order. The law did not permit the order. The Committee did not have
the
power to make it (although Parliament the day after it was made, enacted
legislation to give retrospective validation to the order),
No. inquiry into the
parliamentary process' to establish the suspension order or the reasons for it
was necessary. The Court consequently
held there was no bar to the jurisdiction
of the High Court to entertain the suit.
The circumstances in
Robati's were similar to those
in the Zimbabwe case of Smith v
Mutasa and Anor (1990) I LRC (Const.) 87 which concerned a former Prime
Minister of Zimbabwe who was a member of the House of Assembly of the new
country. He had, while visiting the United Kingdom, made remarks derogatory of
the black people and their representatives in Zimbabwe.
He was found guilty of a
contempt of Parliament. He subsequently made further remarks of a similar kind
and was then suspended by
the-House of Assembly for a year and deprived of his
salary and allowances. He applied to the High Court for an order restoring his
salary and allowances. The Speaker gave a certificate that the matter was one of
privilege and the High Court held the proceedings
should thereupon be stayed on
the basis that they had been finally determined by Parliament. On appeal from
that decision, the Supreme
Court allowed the appeal on the ground there was no
authority in law for the suspension of his remuneration. While the Supreme Court
was prepared to uphold the right of Parliament to deal with matters of privilege
without scrutiny of the Courts and so upheld the
principle of the supremacy of
Parliament, it drew a distinction in the case of Parliament acting unlawfully.
Parliament had the exclusive
power to deal with Smith in respect of his remarks
as a matter of privilege, and could properly debate and decide on the contempt
matter. It, however, had no power in law to initiate proceedings which resulted
in the suspension of salary.
The proceedings were bad, ab initio. No
inquiry into them was necessary. It was for that reason, the Court accepted
jurisdiction.
I have had much assistance from the decision of the Full
Court of the High Court of Australia in
Cormack v
Cope (1974) 131 CLR
432, a case where a proclamation made pursuant to section 57 of its Constitution
for the double dissolution of both Houses of the Australian
Parliament were
challenged as being invalid. The Court, without reaching a final conclusion on
the validity question, ruled (inter
alia) that an application by the plaintiff
for an interlocutory injunction to restrain the joint sitting of Parliament
convened by
the Proclamation, from dealing in any way with a certain Bill
presented to it thereat, should not be made even if it were found that
section
in the authorising enactment under which the proclamation had been made, had not
been complied with. In the course of argument,
it was contended that the
provision in .the Constitution authorising the proclamation dealt with
proceedings in Parliament; the convening,
dissolving and proroguing of
Parliament were all matters concerned with the parliamentary process and as such
were covered by parliamentary
privilege and not subject to judicial review. Four
of the 'six judges dealt extensively with that branch of the
argument.
Barwick C.J. at page 454 says:
" .... it is not the case in Australia, as it is in the United Kingdom, that the judiciary will restrain itself from interference in any part of the law-making process of the Parliament. Whilst the Court will not interfere in what I have called the intra-mural deliberative activities of the House, including what Isaacs J. called in Osborne v the Commonwealth (1911) 12 CLR. 321,363, "intermediate procedure" and the "order of events between the Houses" (1911) 12 C.L.R. at page 363, there is no parliamentary privilege which can stand in the way of this Court's right and duty to ensure that the constitutionally provided methods of law-making are observed.
Ordinarily, the Court's interference to ensure a due observance of the Constitution in connexion with the making of laws is effected by declaring void what purports to be an Act of Parliament, after it has been passed by the Parliament and received the Royal assent. In general, this is a sufficient means of ensuring that the processes of law-making which the Constitution requires are properly followed, and in practice so far the Court has confined itself to dealing with laws which have resulted from the parliamentary process .... ....... "
Menzies J. at page 465 says:
"Closely associated with these principles is another principle of great constitutional importance, namely that the Court will not interfere with the proceedings of Parliament or the Houses of Parliament. The validity of the law that follows from what Parliament has done is one thing. The proceedings of Parliament that lead to a valid or an invalid law are another. It is not for this Court to prevent Parliament from doing what, in the opinion of this Court, will result in an' invalid law. The Supreme Court of New South Wales in Threthowan v Peden (1930) 31 S.R. (N.S.W.) 183, did restrain the presentation for assent of a bill which it decided had not been passed as required by the Constitution of New South Wales. In McDonald v Cain (1953) V.L.R. 411, the Supreme Court of Victoria decided it had jurisdiction to declare that it was contrary to law to present a bill if it had not been passed by the majority required by the Victorian Constitution. But these cases are not authority for the proposition that a court can dictate to the the members of Houses of Parliament what they can or cannot deliberate and vote upon in a parliamentary proceeding. The correct general principle was clearly stated by this Court in Osborne v the Commonwealth (1911) 12 C.L.R. 321, and reference may be made to what was said by Griffith C.J. (1911) 12 C.L.R. at pp. 336-337, by Barton J. (1911) 12 C.L.R. at pp. 351-354, and by O'Connor J. (1911) 12 C.L.R. at p. 355."
Gibbs J. at page 467 says:
" ..... It has been emphatically laid down that the settled practice of this Court is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law and that the proper time for the Court to intervene is after the completion of the law-making process - Hughes & Vale Pty. Ltd v. Gair (1954) 90 C.L.R.203, Clayton v. Heffron (1960) 105 C.L.R. at p. 235. The same considerations apply where the proceedings which may result in invalidity are taken in purported pursuance of s.57. It is after the proposed law has been affirmed that the Court should declare it to be invalid, if the grounds for such a declaration exist .......... "
Finally, at page 472, Stephen J.
says:
" ...... It follows from What I have said above that I am of the view that this Court does not intervene in matters involving the lawmaking process. As early in its history as 1911 members of this Court expressed such a view - Osborne v. the Commonwealth - and in Hughes & Vale Pry. Ltd v. Gair and Clayton v. Heffron, this was affirmed. There may be exceptions to this rule in cases in which, if such cases there be, the product of any irregularity in legislative procedure is other than a statute which is capable of challenge in this Court by those affected by its terms upon the ground that it is not a true product of the constitutionally appointed legislative process.
I may add that in my view this limitation of intervention by the Court depends not upon discretionary but jurisdictional grounds; this emerges I think, clearly enough from the authorities to which I have referred ....... "
As those cases show, the sovereignty of
Parliament is little affected by the constraints of Westminster model
Constitutions and the
approach by the Courts to the applicability of the
non-impeachment privilege enjoyed by the legislature is, in general, the same
in
those jurisdictions as in those of the common law. Nauru's Constitution, as
explained above, confers on its Parliament the power
to declare its powers,
privileges and immunities and to prescribe its procedures. It thus, in my view,
abdicates its right to control
the legislature to the extent of these privileges
and immunities and only if it can be shown that to assert them would. be
inconsistent
with the provisions of the Constitution, could a Court refuse to
uphold them. The privilege of non-impeachment guarantees to the
Parliament that
its proceedings are sacrosanct and as such cannot be impeached. There is nothing
in the Constitution of Nauru which
fetters that privilege and, undoubtedly, the
Court must uphold it.
That, in my opinion, does not mean that Parliament
is able, with impunity, to act unlawfully and while the proceedings in which the
unlawful action takes place cannot be impugned, the consequences of the
unlawfulness can be judicially reviewed as was done in the
cases of Solomon
Islands, the Cook Islands and Zimbabwe referred to above.
Nevertheless,
there is no enforceable duty owed by the Parliament or its members to act
constitutionally,
Rediffusion
(Hongkong) Ltd v. Attorney-General (Hongkong) (1970) A.C. 1136. The
legislature cannot be restrained from passing an unconstitutional Act-
Hughes v. Vale
Pty. Ltd v. Gair (1950)
90 C.L.R. 203,205. These decisions underline that it is the business of
Parliament not of the Court to review any irregularity in the proceedings of
its
House. Parliament has the sovereign power to regulate its
affairs.
Jurisdiction.
On
the question of jurisdiction the thrust of Mr. Audoa's argument is that by its
wording the Constitution gives the Supreme Court
jurisdiction to intervene in
and judicially review the commission, of the alleged breach of its provisions by
Parliament. He relies
on Article 54 thereof which reads:
"54. - (1). The Supreme Court shall, to the exclusion of any other court, have original jurisdiction to determine any question arising under or involving the interpretation or effect of any provision of this Constitution.
(2) Without prejudice to any appellate jurisdiction of the Supreme Court, where in any proceedings before another court a question arises involving the interpretation or effect of any provision of this Constitution, the cause shall be removed into the Supreme Court, which shall determine that question and either dispose of the case or remit it to that other court to be disposed of in accordance with the determination."
As I read
it, the Article purports to ensure that no Court, other than this Court, can
make a ruling on any question concerning the
Constitution whatever may be the
purpose of the question. Courts of lesser jurisdiction must refer such questions
to the Supreme
Court. Unlike section 83 of the Solomon Islands Constitution
where there is specific right for an application to be made to the High
Court
given to a person affected by a constitutional breach for relief, in my
opinion, Article 54 confers no such right. The Constitution
confers specific
jurisdiction on the Court in only two cases. Article 36 gives it jurisdiction to
determine any question that arises
concerning the right of a person to remain a
Member of Parliament. Article 55 gives it power to opine on any constitutional
question
referred to it by Cabinet. There is no express power for the Court to
entertain applications of the kind here made. But, even if
there were a specific
right given for the Court to intervene, I am satisfied that the absolute
privilege of non-impeachment must
be upheld in cases such as this and the Court
would be barred from inquiring and questioning the proceedings in Parliament on
the
12th
June 1997.
Mr. Audoa quotes
the often quoted case of the United States Supreme Court
Marbury v.
Madison (1803) 1 Cranch
103 in support of his contention as to the supremacy of the Constitution over
Parliament. In my view the case does
not assist him. Marshall C.J. in his
opinion said (at p. 177) that it was "emphatically the province of and duty of
the judicial
department of government to say what the law is". That is what the
case was about - the right of judicial review of legislation.
As I have stated
above, this right is available in Nauru, but, the procedure for such review does
not involve the impugning of the
proceedings in which the legislation was
enacted.
As an alternative argument, counsel submits that there was no
quorum at the meeting on the 12th
June, that meeting was not a ,sitting of Parliament. The meeting, he contends,
was no more than a meeting of the Members present
and what was done thereat was
not parliamentary business. That argument, in my view, has no substance. The
effect of a lack of quorum
is stated in Article 45. In short, without a quorum,
no business of Parliament can be transacted. Proceedings of Parliament involve
more than the transaction of business. In
Eoe's
case (supra) at page 230 it is
said:
"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 v. Coffin 4 Mass. 1 (a judgment of the Supreme Court of Massachusets) 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'"
As Parson C.J. pointed
out in Coffin's
case, there are
debates, reports received and many occasions in parliamentary proceedings which
may or may not be concerned with business
to be "transacted". It is the
transaction of business without a quorum which is prohibited by Article 45. Any
other business of the
House can go on without a quorum of Members present. There
is no suggestion here that this sitting was not properly convened and
consequently I find that the proceedings of the
12th June 1997 were a sitting of
Parliament.
The question of jurisdiction aside, I turn to a consideration
of what the Plaintiffs in this action seek from the Court. They do not
seek any
declaratory order. They pray for orders to "nullify the business transacted in
the House at its meeting held on the
12th June 1997". The ground relied
on to support the prayer and the relief sought is that this Parliamentary
meeting was unlawfully allowed
to proceed with the transaction of business
without a quorum being present. It is these parliamentary proceedings they seek
to impugn
and to do so, it seems patently obvious that there must be an
examination and questioning of the conduct and administration of Parliament
on
that day. That apart, particular investigation into the procedural question of
the quorum is called for; but, as Casey J. correctly
observed in
Huniehu's
case (supra) "the determination in that matter is the task of the Speaker
to make as a part of Parliament's internal procedure". No
conclusion on the
correctness or otherwise of the Speaker's action in allowing the House to
proceed could be reached without a scrutiny
of what occurred in the proceedings.
The conduct of the Speaker and his rulings are all relevant in such an
examination as are other
considerations of procedural rules and the law and
practice of Parliament as contained in its Standing Orders and Speaker's rulings
- vide Mehra
on
Practice
and Proceedings of the Parliament of
Nauru pp.
105-7.
The question of quorum is a procedural matter; it is to be decided
by the Speaker who is the master of the House. The correctness
or otherwise of
that decision can only be reviewed by an inquiry into what went on in the House
and what was the basis of the Speaker's
decision to allow the proceedings to
continue and to transact its business. Such an inquiry would involve the Court
on what Barwick
C.J. in
Cormack's
case (supra) called the "intra-mural deliberations of the House" which is
unquestionable, being an involvement in which the Court
has no jurisdiction to
undertake.
2.
Nullification
of Bills Enacted and Certified as Law.
Dillon J., in his judgment,
a draft of which I have seen, adequately covers this question and, with respect
I adopt his views thereon.
3.
Locus
Standi.
I would again adopt what Dillon J. has said on locus
standi. To institute these proceedings the Plaintiffs must have locus standi.
It
is not until a purported law emerges and that particular law on its face affects
rights and not until a plaintiff can establish
that his rights would be affected
that the manner of its being passed can be raised in legal proceedings.
Bribery
Commissioners v. Ranasinghe
(1965) A.C. at pp. 195-197. A plaintiff must show that the legal effect
on him is different from that on the public generally:
Anderson v. the
Commonwealth (1932) 47
C.L.R. 50. That fact that a plaintiff is a Member of Parliament gives him no
better right to bring proceedings to challenge laws than the public
- there must
be shown that his legal rights are affected. The plaintiff in
Huniehu's
case (supra) being the Member of Parliament who gave the required notice
to the Speaker of the lack of quorum thereby had the necessary
locus standi.
Also in Trethowan
v. Peden (1930) 3 S.R.
(N.S.W.) 18, the plaintiffs, Members of Parliament, were accorded locus standi
to challenge the validity of a statute
which would have destroyed the Chamber in
which they were members. In the present case, the Plaintiffs took no part in the
proceedings
they challenge. They did not attend the sitting at any
stage.
CONCLUSION.
In my opinion this matter must be resolved in the forum in
which it originated. This was the gist of what was said in the Queensland
case
of Browne v.
Cowley (1895) 6 Q.L.J.
236 by Griffiths C.J.
"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."
It has been emphasised in many cases, that
Parliament is "the highest Court in the land" and as Griffith C.J. has said the
practice
of Parliament is a branch of knowledge of itself. The privilege it
enjoys of non-impeachment was conferred on it and its Members
to ensure that it
is able to settle its internal disputes without judicial interference or
questioning.
ORDER.
For the reasons above stated, I consider the order as
prayed cannot be granted.
This being also the view of Dillon J., the
Court orders as follows:
1. The action is dismissed.
2. The question of costs is reserved with leave given to parties to be heard thereon.
Gaven Donne
Chief Justice
Solicitors for Plaintiffs: Audoa and Associates,
Nauru
Solicitors for Fourth Defendant: Office of Secretary for Justice,
Nauru.
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