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Supreme Court of Nauru |
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IN THE SUPREME COURT OF NAURU
Constitutional Reference No. 1 of 2003
IN
THE MATTER
of Article 55 of the
Constitution
AND
IN
THE MATTER
of a Resolution pursuant to
Article 24(1) of the Constitution
OPINION
1. The Supreme Court has
received from President Harris, as Chairman of Cabinet on 8 January 2003 a
Constitutional Reference hereafter
referred to as
'the
Reference' pursuant to Article 55 of the
Constitution. The terms of the Reference as finally settled by the Cabinet are
attached to his Opinion
(Attachment
'A').
BACKGROUND
2.
The Reference sought answers to some six questions relating to a motion
introduced by a member for Ubenide (Mr. David Adeang) on
Wednesday, January 8
2003, to which he had given notice (Item 7(b)) in the House on Tuesday 7 January
2003. His motion was seconded
by a member for Meneng (Mr.
Jeremiah).
3. It was noted by the
Court that under Item 5 in the Votes and Proceedings for Tuesday 7 January 2003,
Mr. Adeang had also given
notice that at the next sitting of Parliament he would
move the following motion - 'That pursuant to Article 24 of the Constitution,
President Rene Harris and Minister be removed from office.' On Wednesday, 8
January 2003, this motion was deferred to the next sitting
(see Item 9). Upon
the deferral, Mr. Adeang proceeded (Item 10) to move the other motion to which
he had given notice the previous
day (Item
7(b)).
4. The motion itself and
the ensuing record of the Votes and Proceedings of the Fourteenth Parliament,
Eleventh Sitting of the Twentieth
meeting, Wednesday, 8 January 2003 should be
recorded, in full. They are attached to this Opinion (Attachment 'B'), along
with the
other Notice Papers and Votes and Proceedings relevant to the period,
and certified by the Clerk of Parliament as a true
copy.
5. The first matter that is
addressed is what the Court is entitled to look at to establish facts. The Court
may call for the relevant
Votes and Proceedings of the Parliament and is bound
by the facts disclosed therein. A Court will not pursue further matters relating
to what Barwick CJ stated in
Cormack v
Cope (1974) 131 CLR 432 at 454 be 'the
intra-mural
deliberative activities of the House'. However, Barwick CJ did here distinguish
the position between Australia and that operating
in the United Kingdom, in that
in Australia 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 lawmaking are observed.' Similarly, in Nauru, with a written Constitution,
the Court may be called upon to adjudicate a matter in the Parliament that is in
breach of the Constitution. This is a delicate matter
and Courts, with written
Constitutions, have had to grapple with the many problems associated with such a
course. Problems, which
go to the extent of intervention and the appropriate
time or such intervention, have weighed heavily with such other Courts from
time
to time. Illustrations of this within this South Pacific area are contained in
the judgment of Donne CJ and that of Dillon J
in
L.G. Harris
& Ors v The Speaker and Ors, Civil
Action No. 13/97. On this point, the Court finds itself in agreement with the
submission to the Court by S.E.K. Hulme QC,
that there should be a 'mutual
restraint between Parliament and the Courts' though later in his submission, he
agrees that 'there
can be cases where giving proper operation to a particular
provision of the Constitution will involve reference happened in Parliament',
though he states 'they (the Courts) will minimise the ambit of the reference in
cases where some reference is
necessary'.
6. This Court can see
no justifications, so far as the proceedings of Parliament are concerned, of
accepting as evidence of some fact
pertinent to the matter in hand anything
other than the officially recorded Votes and Proceedings of the Parliament
signed by the
Clerk of Parliament. Such Votes and Proceedings were accepted in
evidence by the Court in Civil Action No. 13/97 as conclusive. (also
see Section
23 Parliament Powers and Immunities Act
1976.)
7. The relevant facts
disclosed by the Votes and Proceedings of Wednesday 8 January 2003 would enable
the Court to establish the following-
1. It is to be assumed that a quorum was present at the commencement of the sitting on 8 January 2003 at 10:00 am and after prayers were read. Mehra, 'Practice and Procedure of the Parliament of Nauru at p.105 records thereafter the practice of the House.
'Once the sitting of the House has commenced and Prayers are read, if there is a quorum of members present, the Chair presumes that a quorum of members is present all they time unless his attention is drawn by any member to the lack of a quorum. Lack of presence of a quorum may also come to the Speaker's notice if on recording votes during a division, it is found that the total number of members present in the House and voting is less than nine.'
2. On Wednesday 8 January 2003, three divisions were called for and recorded in the Votes and Proceedings, Item 8, Item 12, and Item 13. In each instance, there were recorded 11 members voting which were two greater than the quorum.
3. There was no record of a member drawing the attention of the Chair to a lack of a quorum.
4. On Item 15, the Chair called for nominations for the office of President. Mr. Dowiyogo was nominated and seconded, he then accepted the nomination and as there was no other nomination, Mr. Dowiyogo was duly elected President, without the need to record a vote.
5. The motion of Mr. Adeang that this House resolves that it has want of confidence in the Honourable Rene Harris and the Honourable Aloysius Amwano and that they be censured by this House' was debated and put to vote and passed. Upon a division, there were eight supporting votes for the motion and three against.
6. Upon the declaration of the division, the Speaker ruled from the Chair (Item 14) as follows: -
'Honourable members, the results of the votes is (sic) that Government has lost the confidence of the House and stands defeated after losing its parliamentary mandate, and is effectively removed from office.
I will now adjourn the House until the bell rings, after which I shall call for nominations for President and conduct election of the new President.'
7. Upon election, the newly elected President moved that Parliament adjourn until 10 January 2003 at 10:00 am. This was seconded and passed. The House adjourned at 3:50 pm on 8 January 2003.
8. It was recorded by the Clerk of Parliament that one member, Mr. Audoa had been granted leave of absence but that five other members had not been present at any time during the sitting. The five members recorded were President Harris and the other four members of his Cabinet.
Some
material matters therefore disclosed by the above are: -
A. There is no disclosed evidence acceptable to the Court that would indicate that a quorum was not present for the sittings on Wednesday, 8 January 2003.
B. The vote taken on the Adeang motion was passed by eight votes to three.
C. No member of the Harris Cabinet was present at any time during the sitting nor had sought leave of absence.
THE
CONSTITUTIONAL REFERENCE
8. The
Court shall answer
seriatim
the questions raised in due course, but it is clear that the crucial question
surrounds Article 24(1) of the Constitution, and what
interpretation should be
attributed to it.
9. Article 24(1)
reads as follows: -
'Where Parliament on a resolution approved by at least one-half of the total number of members of Parliament resolves that the President and Ministers be removed from office on the grounds that it has no confidence in the Cabinet, an election of a President shall be held.'
10.
Article 46(1) states the normal rule that a question before Parliament shall be
decided by a majority of the votes of members
present and voting - unless
otherwise provided in the
Constitution.
11. Article 24(l)
does otherwise provide. On a vote of no confidence, it must be approved by at
least one-half of the total number
of members of Parliament. With eighteen
members that means such a vote requires nine in support excluding the Speaker
who has no
vote unless on the question the votes are equally divided when he is
able to exercise a casting vote (see Article
46(2)).
12. Similarly, the
amendment provision (Article 84) also otherwise provides where in Article 84(2)
(b) a proposed law must be approved
by not less than two-thirds of the total
number of members of Parliament. In that instance, it would require in an 18
member House
an approval vote of twelve members excluding the
Speaker.
13. The Votes and
Proceedings for 8 January 2003 record that on a division there were eight
members supporting the motion, the subject
of this controversy, and three
members against.
14. There can be
no doubt that Article 24(1) is a mandatory and not a directory provision.
Article 46(1) provides the normal manner
of voting unless otherwise provided by
the Constitution. The Constitution clearly had in mind, for example, that the
expulsion of
a government from office, and a proposed law to amend the
Constitution were two cases when something more was required than a simple
majority of those members present and
voting.
15. The power in the
Speaker of Parliament to rule from the Chair that the President and Ministers be
removed from office on the grounds
that Parliament has no confidence in the
Cabinet and conduct an election of a President is clearly contingent upon the
existence
of a vote in conformity with Article 24(1) as expressed in the
Constitution. It was, therefore, an erroneous ruling of the Speaker
on the basis
that he was applying Article 24(1) of the
Constitution.
16. There is some
argument that the Adeang motion as recorded in the Votes and Proceedings for 8
January 2003 was not in a form to
conform with seeking a no confidence motion
against the Government but was a mere censure against two ministers, the
President and
the Minister for Finance. I find this difficult. If it were a mere
censure and not argued as a no confidence vote on the Cabinet
but simply on two
ministers, then there does not appear to be an explanation for the ruling of the
Speaker whose words are formed
loosely with Article 24(1) in mind. Standing
Order 97 provides the internal procedure in the Parliament for a No Confidence
motion
under Article 24(1).
Mehra
at page 91 also states that the Standing Order operates as the procedure where
there is motion of censure against a Minister. It,
therefore, may have a dual
role. However, whatever the situation the Standing Order cannot have any legal
effect upon the constitutional
provision, Article
24.
17. In any event, how else
could the Speaker have called for an election for President if it had not been
achieved through Article
24(1)?
18. On this point, one must
turn to Article 16 of the Constitution, which reads: -
"16. - (1) There shall be a President of Nauru, who shall be elected by Parliament.
(2) A person is not qualified to be elected President unless he is a Member of Parliament.
(3) The Speaker and the Deputy Speaker are not qualified to be elected President.
(4) The President holds office until the election of another person as President.
(5) Parliament shall elect a President -
(a) wherever the office of President is vacant;
(b) at the first sitting of Parliament next following its dissolution; and
(c) whenever-
(i) the President tenders the resignation of his office by writing under his hand delivered to the Speaker;
(ii) a resolution for the removal from office of the President and Ministers is approved under Article 24; or
(iii) the President ceases to be a Member of Parliament otherwise than by reason only of its dissolution."
19.
Article 16 clearly indicates that Parliament can only remove a President and
Ministers from office by a resolution approved pursuant
to Article 24. There is
no other way for Parliament to remove a Cabinet. Article 32 provides other
grounds but these are, as it were,
self-destructive, and not dependent upon the
will of Parliament.
20. This does
not mean, of course, that there is not reason for the exercise of the
parliamentary convention that when it is clear
that a government has lost the
ability to control the Parliament, the President should resign or seek a
dissolution. In fact, of
course, there are a number of such examples in the
history of the Nauru Parliament where a President has resigned on defeat of an
important motion - usually a money bill. Such examples are quoted in
Mehra -
Practice and Procedure of the Parliament of
Nauru at page 75. But the Court does not
propose to expound on the niceties of parliamentary conventions. The Hulme
submissions put some
emphasis on parliamentary practice and convention where a
government may resign upon defeat in the House where it puts to the House
that
defeat of a measure will be a test of confidence. The matter in hand is not a
question of resignation it is simply a no confidence
motion whose object is the
removal of the government from office. The Constitution is quite specific as to
the ambit of this provision
both in Article 24 itself and Article 16.
Furthermore, the smallness of the House in terms of members and the shifting
sands of Nauruan
political groupings give credence to the wisdom of such a
provision. It is sufficient, for the question sought in the Reference merely
to
state that the Constitution provides but one-way Article 24 in which Parliament
can remove a President other than by a vote following
a dissolution of
Parliament. That does not mean that political pressure may not be applied in the
give and take of political life
to encourage a resignation, but a removal of
Cabinet can only be achieved other than resignation through an Article 24
procedure.
21. On the basis that
the resolution introduced by the Adeang motion did not carry sufficient votes in
terms of Article 24(1) and
that the subsequent ruling of the Speaker was flawed
what was the status of the election of a President and his present status as
elected?
22. Such a question may
present some element of conflict between the Parliament, Executive and
Judiciary. Whilst the Supreme Court
is commonly and not improperly stated as the
'guardian' of the Constitution, it must exercise care in intervening in the
affairs
of the Parliament. At the same time, it has a significant role to play.
In particular it has tasks through Articles 54 and 55. Above
all, Article 2
establishes the Constitution of Nauru as the supreme law of Nauru. In that
sense, the Parliament, the Executive and
the Judiciary are all subject to its
obligations and directions. A clear illustration of proper intervention would be
a situation
where a proposed law was passed for amending the Constitution where
less than two thirds of the total members of Parliament voted
for such a
proposed law. Depending at what point the matter was brought before the Court
and the locus
standi of the applicant an injunctive
process may issue upon the invalid procedure being evidenced before the Court.
This matter was argued
at length in
Victoria v
The Commonwealth (the PMA Case) (1975)
134 CLR 81 whether the illegality of subsequent acts to an incorrect procedure
spelt out in the Constitution produced a justiciable issue. The
majority of the
High Court of Australia in that case opted for the view that the Court had the
jurisdiction to make a declaration
of validity or of invalidity as the case may
be (see Barwick CJ at p.120).
23.
In this instance, the ruling of the Speaker was not in accordance with the law
of the Constitution but was not in itself void.
The Court is not here concerned
with the ruling but whether what followed namely the election of the President
that took place when
only eight votes were mustered in support of a no
confidence motion. The vote on the Adeang motion did not entitle there to be an
election for a President as the vote in favour did not amount to at least
one-half of the total number of members of the
Parliament.
24. For the purposes
of this reference, a clear opinion is given on the major issue. In the end, this
now becomes a matter for Parliament.
It is up to Parliament to correct itself
once the constitutional opinion of the Supreme Court has been given under
Article 55.
25. Two further
matters may be alluded to. First, the Harris Cabinet did not attend the sitting
on Wednesday
8th
January nor were any members of the Cabinet granted leave of absence on that
day. To some degree, what subsequently took place may
have been materially
prevented by the presence of the Government members. Under the Westminster
system, it is the responsibility
of the government to retain control not only of
legislation but also of proceedings in the House. In other places, lack of such
control
brings about a change of government or a dissolution. In Nauru, there
are limited means to achieve this, however, a constitutional
stalemate can be
avoided if the Government manages to retain control of its Parliament. Non
attendance does not enhance
control.
26.. Secondly, so far as
the powers, privileges and immunities of Parliament and members are concerned,
these are subject to such
powers, privileges, or immunities as are inconsistent
with or repugnant to the Constitution (See Section 21). In other words, where
there are mandatory provisions within the Constitution it is open in any
properly maintained suit for the Court to accept jurisdiction
and make
appropriate declarations or
orders.
ANSWERS
TO QUESTIONS CONTAINED IN THE
REFERENCE:
27. I answer the
questions contained in the Reference as follows:
-
Under Article 55 the Cabinet may
seek from the Court its opinion upon any question concerning the interpretation
or effect of any
provision of the Constitution which has arisen or appears to
the Cabinet likely to arise. Accordingly, the Court has addressed the
questions
in the light of this Article. It is the view of the Court that the
constitutional difficulties earlier described have occurred
through the
interpretation of Article 24(1) and could not have presently arisen
otherwise.
A. Given that there are l8 members of the Parliament and that 9 members represents one half of the membership of the House, was the resolution passed by a majority of 8 members a resolution such that as a result of its passage there must be an election for President?
Answer: No
B. If so, upon what basis does the resolution have such effect?
Answer: not required to answer given the answer to A above.
C. If not, is there any other manner by which the President may be removed from office and a new President appointed?
Answer: Not required to answer as not relevant to a question which has arisen or appears to the Cabinet likely to arise.
D. If so, what is that manner and what is its basis?
Answer: Not required to answer. See answer to C above.
E. Was the ruling of the Speaker that the office of the President was, as a result of the vote, vacated sufficient to override the Constitution and allow the subsequent election of a President?
Answer: A ruling by the Speaker cannot override the mandatory requirements of the Constitution. The Votes and Proceedings disclose that the resolution that was passed did not have the required majority for the removal of the President and Cabinet from office under Article 24(1).
F. What, if any, is the status of the election of a member to be President, and of the person so elected?
Answer: Not required to answer in the light of the answers to A and E. This should be left to the Parliament to regularise through its own procedures.
28.
Before concluding, I would like to thank those members of Parliament either by
themselves or with the assistance of counsel who
sent written submissions or
contributed to the oral submissions. The quality of the submissions required at
very short notice due
to the exigencies of the moment was of a high standard and
was of great assistance to the Court. In what has been a contentious political
atmosphere, the Court congratulates all who made submissions calmly and adroitly
to the Court. The Court trusts that the reception
of the opinion will materially
assist a proper legal and constitutional answer to the situation thus
demonstrating again the strong
adherence of Nauruan society to the rule of law
and a high level of parliamentary practice. The list of submissions is recorded
in
Attachment C.
Barry
Connell
Chief
Justice
Date 17 January
2003
Attachments: A B and
C.
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