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Vohor v Abiut [2004] VUSC 5; Civil Case 096 of 2004 (13 May 2004)

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

CIVIL CASE No. 96 of 2004

BETWEEN:

HON. SERGE VOHOR, Leader of Opposition
HON. BARAK T. SOPE, Deputy Leader of Opposition
HON. CHARLOT SALWAI, MP for Pentecost
HON. MICHAEL TURE, MP for Pentecost
HON. JACKLEEN R. TITEK, MP for Malekula
HON. PAUL B. TELUKLUK, MP for Malekula
HON. TOARA DANIEL K., MP for Shepherds Outer Islands
HON. JACQUES SESE, MP for Ambae
HON. HENRI TAGA T., MP for Port-Vila
HON. JEAN ALLAIN MAHE, MP for Santo
HON. DENIS PHILIP, MP for Santo
HON. SAMSON BUE, MP for Ambae
HON. WILLIE POSEN, MP for Tanna
HON. STEVEN KALSAKAU, MP for Efate
HON. JIMMY IMBERT, MP for Santo
HON. FRANCOIS LUC BABA, MP for Luganville
HON. RAPHAEL WORWOR, MP for Ambrym
HON. FRANCOIS KOAPA, MP for Tanna
HON. ISAAC JUDAH, MP for Tanna
HON. KEASIPAE SONG, MP for Tanna
HON. ALBERT R. PISUVOKE, MP for Santo
HON. PHILIP ANDIKAR, MP for Santo
HON. JAPHET M. NAWILAU, MP for Malekula
HON. ESMON SAIMON, MP for Malekula
HON. SATO KILMAN, MP for Malekula
HON. JOE NATUMAN, MP for Tanna
HON. DONALD KALPOKAS, MP for Efate
Claimants

AND:

HON. ROGER ABIUT
Speaker of Parliament and Acting President
Respondent

Coram: Chief Justice Vincent LUNABEK

Counsel: Ishmael Kalsakau for the claimants
Messrs. Michael Edwards, Dudley Aru & Fredrick Loughman for the respondent

Hearing date: 12 May 2004
Judgment date: 13 May 2004

JUDGMENT

Introduction

This is an oral application made on behalf of the respondent, Speaker of Parliament on the 12th day of May 2004.

The respondent’s application seeks an Order of the Court to have a Constitutional Application of the claimants filed on 11 May 2004, struck out.

Process and Procedures

On 11 May 2004, the claimants filed a Constitutional Application pursuant to the Constitutional Procedures Rules, Order 26 of 2003 [Part 2- PROCEEDINGS UNDER ARTICLES 6 AND 53(1) – INFRINGEMENT OF RIGHTS AND REDRESS].

The claimants apply for the following declarations:-

1. That the purported dissolution of Parliament by the Respondent dated the 10th May 2004 acting in his capacity as Acting President pursuant to Article 28(3) of the Constitution is unconstitutional, null and void and of no effect.

2. The First Ordinary Session of Parliament summoned to commence on Monday the 10th May 2004 remains in continuance.

3. That Parliament is seized of a valid motion of no confidence served before the respondent on Monday 10th May 2004 and in accordance with standing Orders of Parliament the Speaker must place the motion before a debate of Parliament.

The grounds of the Constitutional Application are set out below:

1. The Speaker’s status as a Member of Parliament affects or colours his impartiality and independence to exercise such of the powers of the President to dissolve Parliament.

2. That the Speaker of Parliament is unable to exercise Presidential Powers with regard to the dissolution of Parliament if to do so he would infringe upon the rights of the applicants exercisable under Article 43(2) of the Constitution once those rights have been exercised.

3. The applicants have on the 10th May 2004 filed a written Motion of No Confidence before the respondent.

4. Having fore knowledge of the Motion the respondent could not dissolve Parliament as Acting President.

The Constitutional Application raises fundamental issues about the powers and rights of the respondent Speaker in the performance of the functions of President under the Constitution [Articles 37(1) and 28(3)] and the rights of the claimants as Members of Parliament as set out under Article 43(2) of the Constitution.

Common sense commands that those questions be dealt with as a matter of urgency bearing in mind of their constitutional importance and public interest in these matters raised. Thus, time for filing and service of the Constitutional Application and any sworn statements filed in support are reduced [Rules 2.5(4) and 2.6(2) of the Constitutional Procedures Rules].

A conference is scheduled on 12 May 2004 at 3.30 PM in the afternoon for judicial management and enquiry into the matters raised by the Constitutional Application.

It is at the conference of 12 May 2004 that counsel on behalf of the respondent applied orally to have the Constitutional Application of the claimants filed on 11 May 2004, struck out.

Factual background

The sequence of events leading up to the Constitutional Application and subsequently the respondent’s application to strike it out, are contained in the sworn statements filed in support of the Constitutional Application.

Five of the applicants filed sworn statements in support of the Constitutional Application, namely Hon. Serge Vohor, Hon. Donald Kalpokas Masikevanua, Barak Tame Sope Maautamate and Hon. Charlot Salwai.

A brief summary of those facts is set out as follows:

On 23 April 2004, the Speaker of Parliament summoned Parliament to meet commencing Monday 10 May 2004 for its first Ordinary Session for this year.

On 7 May 2004, the Office of the President is declared vacant by the Supreme Court. The respondent, then, performs the functions of the President as from that date.

A Writ was issued and a date for the election of the President is scheduled for Monday the 24th May 2004.

On Monday 10 May 2004 at about 2.30PM, the claimants served upon the respondent/Speaker of Parliament at Parliament Chambers a formal Notice of Motion of No Confidence.

The Speaker accepted receipt of the Motion and indicated it was in Order. He would issue notices to Members of Parliament setting a date for Parliament to debate the Motion.

On the same date at about 5.00PM it is said the Speaker was entertaining Ministers of the State in his Chambers.

The respondent, then, met with some of the claimants and informed them that he was under pressure by the Government to dissolve Parliament. The respondent indicated to them that he would not dissolve Parliament given he had received the Notice of Motion.

At 18.00hrs of 10 May 2004, the respondent met with Hon. Prime Minister of Vanuatu at the Parliament House and he then handed to the respondent the Instrument of the dissolution of Parliament.

At about 7.15PM on 10 May 2004, the respondent left Parliament in his official vehicle and escorted by Ministerial vehicles.

On the same date of 10 May 2004 at about 9.00PM o’clock the respondent, Speaker of Parliament made a declaration on the National Television dissolving Parliament of Vanuatu.

The declaration is set out as follows:

“Gud naet ol gud citizen long Ripablik blong Vanuatu. Long 6 p.m. tedei Monday namba 10 May 2004 Hon. Praem Minister ibin kam mitim mi olsem Acting President blong Vanuatu long ofis blong Spika long Palemen Haos. Long miting blong mitufala, Honourable Praem Minister hemi bin advaesem mi se Kaonsel blong Ministas hemi bin mit mo disaed se olsem Praem Minister hemi mas advaesem Acting President blong Repablik blong disolvem Palemen. So nao therefore, mi olsem Acting President blong Ripablik, folem advaes, mi disaed nao blong disolvem Palemen. Instrument blong dissolution blong Palemen hemi rid igo olsem.

REPUBLIC OF VANUATU

CONSTITUTION OF THE REPUBLIC OF VANUATU

Instrument of dissolution of Parliament

In exercise of the power conferred on me by Article 28(3) of the Constitution of the Republic of Vanuatu, I, the Honourable Roger Abiut, the Speaker of Parliament performing the functions of the President in accordance with Article 37(1) of the Constitution of the Republic of Vanuatu, on the advice of the Council of Ministers, dissolve Parliament.

This Instrument comes into force on the day on which it is made.

Made this 10th day of May 2004.

Honourable Roger Abiut
Speaker of Parliament”

Those facts are not disputed by the respondent.

The application to strike out the Constitutional Application

On 12 May 2004, the respondent by counsel, applied to have the Constitutional Application struck out. This application is made pursuant to Rules 2.8 of the Constitutional Procedures Rules. It is advanced on the basis that the grounds and sworn statements filed in support of the Constitutional Application on 11 May 2004, taken at their highest weight and consideration as they stand now, cannot assist the claimants to succeed in the Constitutional Application. The relevant constitutional provisions which are now under challenge are clear.

Arguments and submissions by counsel

The arguments and submissions are made in respect to each and all of the grounds of the Constitutional Application. They will be dealt with in turn.

In ground 1:

1. The Speaker’s status as a Member of Parliament affects or colours his impartiality and independence to exercise such of the powers of the President to dissolve Parliament.

Counsel for the respondent submitted that such a ground cannot be a basis in law to set aside the Speaker’s action to dissolve Parliament. Article 37(1) of the Constitution is clear. It is premised on the Speaker being a Member of Parliament as he is elected by Parliament under Article 22 of the Constitution.

By reading Articles 37 and 22, the constitutional framers knew that the Speaker would be a Member of Parliament. It is then submitted that, it is a nonsense to suggest that the Speaker when exercising the functions of President under Article 37 could be set aside. It is said that ground 1 if stands, will render Article 37 with no effect. The fact that the decision to dissolve Parliament cannot be exercised by the Speaker as it raises a question of conflict about his status, would render Article 28(3) of no effect.

The judgment of the Court of Appeal in Civil Appeal Case No. 8 of 1997 in President of Vanuatu v. Maxime Carlot Korman is referred to this Court. The relevant passage of which is set out below:-

“In our judgment a course of action which had the effect of denying Members of Parliament their right “to express an unfavourable opinion in the Government leadership” cannot be elevated to a priority over the right of the Council of Ministers to advise the President that Parliament should be dissolved and the constitutional right of a President (having received such advice) to exercise the responsibility vested in him under the Constitution. We are of the view that the right of the people of Vanuatu to democratically express their view in the election of a new Parliament must be accorded the priority. Article 43 is not one of those Articles which is specifically covered by Article 5. The right which Members of Parliament have under Article 43, is a right which exists only if Parliament exists. It is to allow the tail to wag the dog to suggest that the rights of the Members of Parliament ought to be accorded priority over the rights of the people to elect a new Government when the President, having exercised the provisions of the Constitution, has determined that Parliament should be dissolved.”

It is finally submitted for the respondent that the power under Article 37 is clear. The Speaker, during the vacancy of office of the President, is exercising the powers of the President as a Speaker and Member of Parliament. Therefore, ground 1 of the Constitutional Application could not be made out in law.

In reply, counsel for the claimants refers to the Court to the facts as alleged in the sworn statements and in particular Annexure “A” of the statement of Charlot Salwai. He argues that there is doubt as to the existence of a resolution of the Council of Ministers. He further says that while the applicant/respondent has not being comfortable to plead the absence of a Council of Ministers resolutions, the evidence before the Court raises doubt about the existence of a Council of Ministers’ resolution requesting the Speaker to dissolve Parliament.

Further, Counsel for the claimants make further reference to the sworn statements of Serge Vohor and Others filed in support of the Constitutional Application by posing the following questions: Once a Speaker received a Notice of Motion, can he exercise the functions of the President under the Constitution to dissolve Parliament?

As to the judgment of the Court of Appeal in Civil Appeal Case No.8 of 1997, he submits that the facts are distinguishable from the present case. He says in 1997 case, there was a President. The Speaker closed the Session of Parliament. In this case, the Speaker is the Acting President. The Session remained open until the Speaker dissolves it on 10 May 2004. It is further submitted for the claimants that the evidence leads to a consequential dissolution of Parliament because of a filing of a Notice of Motion of No Confidence.

It is finally submitted for the claimants that there is a clear conflict situation in the ability of the Speaker to exercise the powers of the President. The exercise of the powers of the President by the Speaker must be made in a limited way.

The relevant provisions of the Constitution are set out as follows:-

Article 37 of the Constitution provides:

“SPEAKER OF PARLIAMENT

37. (1) Whenever there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament shall perform the functions of President under this Constitution and any other law.

(2) When Parliament is dissolved and there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament at the time of the dissolution shall perform the functions of the President of the Republic under this Constitution and any other law until a new Speaker is elected.” [Emphasis added].

Article 28 of the Constitution provides:

“LIFE OF PARLIAMENT

28. (1) Parliament, unless sooner dissolved under paragraph (2) or (3), shall continue for 4 years from the date of its election.

(2) Parliament may at any time decide, by resolution supported by the votes of an absolute majority of the members at a special sitting when at least three-fourths of the members are present, to dissolve Parliament. At least 1 week’s notice of such a motion shall be given to the Speaker before the debate and the vote on it.

(3) The President of the Republic may, on the advice of the Council of Ministers, dissolve Parliament.

(4) General elections shall be held not earlier than 30 days and not later than 60 days after any dissolution.

(5) There shall be no dissolution of Parliament within 12 months of the general elections following a dissolution under subarticle (2) or (3).” [Emphasis added]

Article 43(2) of the Constitution says:

“COLLECTIVE RESPONSIBILITY OF MINISTERS AND VOTES OF NO CONFIDENCE

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

(2) Parliament may pass a motion of no confidence in the Prime Minster. At least 1 week’s notice of such a motion shall be given to the Speaker and the motion must be signed by one sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected.” [Emphasis added]

Applying the law to the facts as set out in the earlier part of the judgment, and the arguments and submissions before me, I bear in mind that it is an exercise of construction or interpretation of the Constitution that I am about to embark upon. It is important again to indicate that in a case such as this, the Court is not concerned with the political view or policies of any person or party. The Courts are not concerned with the desirability or undesirability of any particular course of action. The Courts consider only whether the rights and responsibilities which are enshrined in the Constitution have been lawfully and properly exercised and whether the law as created by Parliament has been given effect.

Article 37(1) of the Constitution is clear. Whenever there is a vacancy in the office of the President of the Republic [or ...], the Speaker of Parliament shall perform the functions of President under this Constitution and any other law. This is a mandatory provision. On 7 May 2004, the office of the President is declared vacant by the Supreme Court. The respondent, Speaker of Parliament, performs the functions of the President as from that date.

One of the functions of the President is set out under Article 28(3) of the Constitution, which is, to dissolve Parliament on the advice of the Council of Ministers.

On 10 May 2004 at about 9.00PM o’clock in the evening, the respondent performs that function of the President by dissolving Parliament upon receipt of the advice of the Council of Ministers.

Article 37(1) constitutes the source of the power of the Speaker to dissolve Parliament. The exercise of that power is made on 10 May 2004 by dissolving Parliament in pursuant to Article 28(3) of the Constitution.

The claimants have the burden to show that there is no resolution of the Council of Ministers. The onus is a heavy one.

The sworn statement of Serge Vohor at paragraph 12 on the face of it does not dispute that fact. On the contrary, it suggests that the respondent, Speaker, exercises the power as Acting President to dissolve Parliament on the advice of the Council of Ministers.

By perusing the Annexure “A” to the statement of Charlot Salwai, it is clear that the respondent acted upon the advice of the Council of Ministers. The Instrument of dissolution confirms this very fact.

The Court expresses no view at this point in time as to whether the Speaker performs the functions of the President as an Acting President or as Speaker of Parliament. Whatever the answer to the question as raised, one may wonder whether in substance, there is a fundamental difference between the two situations. The first is that the Speaker of Parliament performs the functions of the President as Acting President and the second is that the Speaker of Parliament performing those functions as provided under Article 37(1) of the Constitution as Speaker? What Article 37 states clearly is that the Speaker shall performs the functions of President in the occurrence of certain events as set out under Article 37(1) and (2).

The submissions of the respondent must be accepted as they reflect good law. The following principle of law has been set by the decision of the Court of Appeal in Civil Case No. 8 of 1997:-

“Article 28(3) vests a wide and extensive discretion in the President. There is a heavy burden on anyone who asserts that there has been an improper exercise of that discretion.... Where the Constitution provides such a wide and unfettered discretion it is necessary to show that in legal terms the decision taken by the President was irrational and unsunstainable.” [at page 14]

Applying the law as set out in the decision of the Court of Appeal in Civil Appeal Case No. 8 of 1997 to the present case, there is no evidence of an improper exercise of the presidential functions by the Speaker on 10 May 2004 when he dissolved Parliament. The facts complained of in respect to the conduct of the Speaker and the challenges he was facing before he exercised his discretion to dissolve Parliament on 10 May 2004 are not in dispute. They are not relevant for the purpose of the exercise of powers under Article 28(3) of the Constitution.

The Court is satisfied that the power exists. The exercise of such power is as set out under Article 28(3) of the Constitution and it has been properly exercised.

The Motive, purpose or fore knowledge could not and do not assist in any way in the constitutional interpretation exercise. They are irrelevant considerations.

The following relevant part of the decision of the Court of Appeal in Civil Appeal case No. 8 of 1997, President of the Republic v. Maxime Carlot Korman is the law as applied in this case:-

“In our judgment a course of action which had the effect of denying Members of Parliament their right “to express an unfavourable opinion in the Government leadership” cannot be elevated to a priority over the right of the Council of Ministers to advise the President that Parliament should be dissolved and the constitutional right of a President (having received such advice) to exercise the responsibility vested in him under the Constitution. We are of the view that the right of the people of Vanuatu to democratically express their view in the election of a new Parliament must be accorded the priority. Article 43 is not one of those Articles which is specifically covered by Article 5. The right which Members of Parliament have under Article 43, is a right which exists only if Parliament exists. It is to allow the tail to wag the dog to suggest that the rights of the Members of Parliament ought to be accorded priority over the rights of the people to elect a new Government when the President, having exercised the provisions of the Constitution, has determined that Parliament should be dissolved.”

The arguments and submissions of the claimants must be rejected.

Accordingly, ground 1 of the Constitutional Application has no basis in law and is dismissed.

In ground 2:-

2. That the Speaker of Parliament is unable to exercise Presidential Powers with regard to the dissolution of Parliament if to do so he would infringe upon the rights of the applicants exercisable under Article 43(2) of the Constitution once those rights have been exercised.

It is submitted for the respondent that in respect to ground 2 of the Constitutional Application, the Court is bound by the decision in re. President of Vanuatu v. Maxime Carlot Korman in Civil Appeal Case No. 8 of 1997.

A dissolution of Parliament by the President was lawful even though a vote of No Confidence had been filed.

It is submitted, then, that the decision applies to the Speaker when he performs the functions of President under Article 37(1) of the Constitution.

It is finally said, Article 37 is clear. When Article 28(3) is exercised, then, it must be given priority over the rights under Article 43(2) of the Constitution.

The claimants submitted, in reply, that once Article 43(2) has been invoked, the Speaker of Parliament as Member of Parliament is unable to exercise the powers of the President under Article 28(3) of the Constitution as he could not ignore the existence of the right of other Members of Parliament.

The facts of this case and 1997 case appear to be the same save that in 1997, the then Speaker accepted a Motion of no confidence. He declared it was valid and listed on Parliament Agenda for debate. A date for Parliament to debate the Motion was set. The then Speaker closed the Parliament session without allowing Parliament to debate the motion. The then President of the Republic dissolved Parliament. In the present case, the Speaker performs the functions of the President to dissolve Parliament under Article 28(3) and the Session of Parliament is not closed before the dissolution of Parliament. The respondent, Speaker accepts the receipt of the Notice of Motion of the claimants. There is no date set to debate the Motion. The Motion is not listed as an item for debate before Parliament as yet. There was no closing of Parliament before the dissolution. It is difficult to see whether the right of the claimants under Article 43(2) of the Constitution has been infringed in the circumstances of the present case.

On the contrary, the circumstances of the case of 1997 as described, amounted to an infringement of the rights of the then claimants as found by the Supreme Court and confirmed by the Court of Appeal in Civil Appeal Case No. 8 of 1997 referred to above.

The law is clear as set out in the judgment of the Court of Appeal in re. President of Vanuatu v. Maxime Carlot Korman in Civil Appeal Case No. 8 of 1997. This Court is bound by that decision. When the powers under Article 28(3) is exercised by the President and in this case the Speaker pursuant to Article 37(1) of the Constitution, Article 28(3) takes priority over the rights provided under Article 43(2) of the Constitution.

Ground 2 of the Constitutional Application cannot succeed and must fail.

In grounds 3 and 4:-

3. The Applicants have on the 10th May 2004 filed a written motion of no confidence before the respondent.

4. Having for knowledge of the motion the Respondent could not dissolve Parliament as Acting President.

Ground 3 of the Constitutional Application refers only to facts to establish ground 2.

As ground 2 of the Constitutional Application cannot succeed, ground 3 also cannot succeed for the same conclusion of law reached in ground 2.

Ground 3 of the Constitutional Application is dismissed.

As to ground 4, it is submitted for the respondent that the fore knowledge of Speaker of the motion is not a relevant consideration for the exercise of the President’s powers to dissolve Parliament as he did on 10 May 2004. The respondent relies on the judgment of the Court of Appeal in Civil Appeal Case No. 8 of 1997.

Counsel for the claimants refers the Court on the facts as alleged and contained in the sworn statement of Hon. Serge Vohor to substantiate his arguments and submissions to the contrary.

The fore knowledge of the Notice of Motion is not a relevant consideration for the ascertainment of the existence of the Speaker’s powers and responsibilities under Article 37(1) of the constitution to perform the functions of the President as set out in the Constitution and, thus, the exercise of such powers and responsibilities on 10 May 2004, to dissolve Parliament on the advice of the Council of Ministers.

Ground 4 of the Constitutional Application cannot stand and must be dismissed.

On the basis of the above considerations, the Constitutional Application filed by the claimants on 11 May 2004 must be struck out as the grounds in support of the application cannot succeed in law.

ORDERS

1. The Constitutional Application of the claimants filed on 11 May 2004 is hereby struck out.

2. The costs are determined in favour of the respondent against the claimants. Costs are to be agreed if not taxed.

3. A conference date is scheduled on Wednesday 16 June 2004 at 2.00PM o’clock to deal with the issue of costs.

Dated at Port-Vila this 13th day of May 2004

BY THE COURT

Vincent LUNABEK
Chief Justice