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Tonge v Republic of Vanuatu [2007] VUSC 5; Constitutional Case 05 of 2006 (20 March 2007)

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

CONSTITUTIONAL CASE No.05 of 2006

BETWEEN:

STEPHEN TONGE, IAU NASSE, IRENE LEIGKONE, EMMA TURA VUI, FRED LEWAWA JACK, EDDY DICK, PAUL KALORISU, BEN SMITH, JOHN SETAK SAM, MARIE SAM, JOHN METO, & AUGUST CARLOS,
representing themselves and other electors in Port-Vila.

Applicants

AND:

THE REPUBLIC OF VANUATU

Respondent

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Willie Daniel for the Applicants
Mr Dudley Aru, Attorney General (Acting) for the Respondent

Date of Judgment: 21 December 2006
Date of publication of Reasons for Judgment: 20 March 2007

REASONS FOR JUDGMENT

On 21st December 2006, the Supreme Court struck out an Amended Constitutional Application filed by the Applicants on 16th May 2006. The reasons are set out below.

This was an application by the Attorney General on behalf of the Respondent, Republic of Vanuatu. The application was filed on 17 August 2006 and it seeks to strike out a Constitutional Application filed on 16 May 2006 by Mr Willie Daniel on behalf of the original Applicant Willie Jimmy, a Member of Parliament of Port-Vila constituency representing himself and his electors in Port-Vila. On 6 September 2006 when the application was entertained it had become apparent that the Applicant Willie Jimmy has no standing to make a Constitutional Application on the grounds sought in the Constitutional Application. It was apparent that the grounds of the then Constitutional Application were referring not only to Willie Jimmy but also to others who actually reside in the rural areas of Efate but used to vote in the Municipal area.

Because of the importance of the issue, the Court directed the counsel for the Applicants to amend the Constitutional Application by withdrawing Willie Jimmy as the Applicant and named the Applicants by their own names as Applicants and on behalf of others living in the rural areas but voted in the Port-Vila constituency.

An Amended Constitutional Application was then filed on 14 September 2006. The Attorney General still maintains his application which brings us to this hearing and judgment.

BACKGROUND FACT – EVENTS LEADING TO THE APPLICATION

The following is the summary of the events leading up to the Constitutional Application and the present application by the Attorney General to strike it out:-

On 4 January 2006, the Electoral Commission at its meeting of that date, made a declaration to the effect that a new system of registration of electors shall be established for the constituencies of Port Vila Municipality and Luganville Municipality. The purpose of the new system of registration is to eliminate fraud and complaints raised by residents of the two constituencies. The new system of registration of electors is that the eligible voters must be registered in the electoral list for the polling district in which he/she is a resident at the time of the preparation of the electoral list in compliance with Section 9(1) of the Representation of the People Act [CAP.146].

The new system of registration of electors requires that electors within the Municipal areas of Port-Vila and Luganville are issued with "red" electoral cards while the old "blue" electoral cards will only apply to other areas such as rural areas and in the island constituencies. The Applicants complain against the new system of registration of eligible voters.

The Applicants say that under the old system of registration: the electors who are on the electoral list in areas outside Municipal areas have voted in the past in Municipal areas because this is where they work and furthermore because they have a right to choose their own candidates to represent them in the National Parliament. They also say that, in the old system all electors in Vanuatu are issued with a "blue" electoral card whether they are registered in an urban area or a rural area.

AMENDED CONSTITUTIONAL APPLICATION

This leads to the Constitutional Application filed on 16 May 2006 which was then amended to the present one. The Applicants, through their Amended Constitutional Application apply for the following relief:-

1. A declaration that Section 9(1) of the Representation of the People Act [CAP.146] is contrary to Article 5(1)(g) and (i) of the Constitution.
2. A declaration that Section 9(1) of the Representation of the People Act [CAP.146] is a breach on the Constitutional rights of the Claimants.
3. A declaration that the decision of the Electoral Service Commission in its meeting of 4 January 2006 in declaring the new system of electors registration is contrary to Article 5 sub-article (1)(g) & (i) of the Constitution and that the said decision is directly an infringement on the constitutional rights of the Claimants and is therefore unlawful.
4. A declaration that the decision of the Electoral Service Commission of 4 January 2006 in declaring the new system of electors registration is therefore null and void and of no effect.
5. An Order that the Principal Electoral Officer and or the Electoral Service Commission are injuncted from continuing to implement and executing electors registration in compliance with the decision of the Electoral Service Commission of 4th January 2006.
6. Cost of and incidental to these proceedings.
7. Any other orders and or declarations as seem fit by the Court to make.

The Amended Constitutional Application is supported by 12 sworn statements filed by the Applicants. The common trend and rational of the statements show that the Applicants live in the rural areas on the Island of Efate and have always voted in the Municipal Constituency of Port-Vila. The Applicants say that the new system of the registration of electors will violate their right to vote for the candidate of their choice in the Port-Vila Municipal area. They provided the following grounds in support of the Amended Constitutional Application: They are set out below:-

"1. Section 9(1) Representation of the People Act [CAP. 146] is contrary to Article 5(1) (g) & (i) of the Constitution.

(i) Section 9(1) Representation of the People Act [CAP. 146] states as follows:

‘Any person shall be eligible for registration in the electoral list for the polling district in which he is a resident at the time of the preparation of the electoral list if he:

(a) is a citizen; and

(b) will have attained 18 years on or before the qualifying date...’.

(ii) Article 5 of the Constitution states as follows:-

‘(1) The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religion or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-

... (g) Freedom of expression;

... (i) Freedom of movements.’

(iii) While Article 5(1)(i) and (g) of the Constitution guarantees all citizen of Vanuatu the right to freely express themselves and the right to move around freely in the society, Section 9(1) Representation of the People Act [CAP.146] is basically saying that electors right to choose a candidate of their choice is limited and this contrary to the rights guaranteed to all citizens under Article 5(1)(g) & (i) of the Constitution.

2. Section 9(1) of the Representation of the People Act [CAP.146] is a breach on the Constitutional rights of the Applicants.

3. Furthermore and or alternatively, as a result of the new system of electors registration introduced by the Electoral Service Commission as referred to in paragraph 4 above, the Applicants’ rights of voting for a candidate of their choice have been affected."

Briefly, as I read and understand the grounds of the Amended Constitutional Application, the Amended Constitutional Application is advanced on two (2) main grounds:-

First, that Section 9(1) of the Representation of the People Act [CAP.146] is contrary to Article 5(1)(g) and (i) of the Constitution, namely:-

(g) Freedom of expression

(i) Freedom of movement of the Applicants; and

Second, as a result of the new system registration of electors introduced by the Electoral Commission on 4 January 2006, the Applicants’ rights for voting for a candidate of their choice have been affected.

APPLICATION TO STRIKE OUT THE CONSTITUTIONAL APPLICATION

On 17 August 2006, the Attorney General on behalf of the Republic of Vanuatu filed an application pursuant to Rule 2.8 of the Constitutional Procedure Rule of 2003 to strike out the Constitutional Application. The Attorney General seeks the following Orders:-

1. That the Applicant’s fundamental rights under the Constitution are not infringe
2. That Section 9(1) of the Representation of the People Act [CAP.146] is not contrary to Article 5(1)(g) and (i) of the Constitution and does not infringe the Applicant’s fundamental rights.
3. The Constitutional Application be struck out in its entirety.
4. Costs.

The application is advanced on the grounds that:-

(a) The Applicant’s fundamental rights under the Constitution have not been infringed.
(b) The decision by the Electoral Commission made at its meeting on 4 January 2006 in declaring a new electoral card system for the Port-Vila Municipality is valid and made according to law.
(c) Section 9(1) of the Representation of the People Act [CAP.146] is not unconstitutional and is not contrary to Article 5(1)(g) & (i) of the Constitution.
(d) Such further grounds as may be advance by Counsel at the hearing of the application.

The issue is whether Section 9 of the Representation of the People Act [CAP.146] is contrary to the Constitution in that it infringes the fundamental rights of the Applicants under Article 5(1)(g) & (i) of the Constitution, namely:

Right to freedom of expression and right to freedom of movement.

Counsel provided written submissions. I have read and considered them.

THE LAW AND ITS APPLICATION

The following are the relevant provisions of the Constitution:-

Articles 1; 2; 4(1), (2), (3) and (4); 5(1) & (2); 6(1) & (2); 16(1); 18(1), (2) & (3); 19; 20(1), (2), (3) & (4) and 53(1) & (2). They are set out below:-

"CHAPTER 1
THE STATE AND SOVEREIGNTY

REPUBLIC OF VANUATU

1. The Republic of Vanuatu is a sovereign democratic state.

CONSTITUTION SUPREME LAW

2. The Constitution is the supreme law of the Republic of Vanuatu."

"NATIONAL SOVEREIGNTY, THE ELECTORAL FRANCHISE AND POLITICAL PARTIES

4. (1) National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.

(2) The franchise is universal, equal and secret, subject to such conditions or restrictions as may be prescribed by Parliament, every citizen of Vanuatu who is at least 18 years of age shall be entitled to vote. [Emphasis added]

(3) Political parties may be formed freely and may contest elections. They shall respect the Constitution and the principles of democracy."

"CHAPTER 2
FUNDAMENTAL RIGHTS AND DUTIES

PART 1 – Fundamental Rights

FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL

5. (1) The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-

(a) life;
(b) liberty;
(c) security of the person;
(d) protection of the law;
(e) freedom from inhuman treatment and forced labour;
(f) freedom of conscience and worship;
(g) freedom of expression;
(h) freedom of assembly and association;
(i) freedom of movement;
(j) protection for the privacy of the home and other property and from unjust deprivation of property;
(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes for the special benefit, welfare, protection and advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.

(2) ..." [Emphasis added].

"ENFORCEMENT OF FUNDAMENTAL RIGHTS

6. (1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right."

"CHAPTER 4

PARLIAMENT

PARLIAMENT

15. The legislature shall consist of a single chamber which shall be known as Parliament.

POWERS TO MAKE LAWS

16. (1) Parliament may make laws for the peace, order and good governance of Vanuatu."

"ELECTORAL COMMISSION

18. (1) There shall be an Electoral Commission consisting of a chairman and two members appointed by the President of the Republic of Vanuatu acting in accordance with the advice of the Judicial Service Commission.

(2) The following persons shall not be qualified for appointment as chairman or member of the Commission-

(a) a member of or a candidate for election to Parliament;

(b) a member of or a candidate for election to local government or municipal councils;

(c) a member of or a candidate for election to the National Council of Chiefs;

(d) any person who exercises any position of responsibility I a political party.

(3) A chairman or a member of the Commission shall vacate his office-

(a) at the expiration of 5 years from the date of his appointment; or

(b) if any circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified for appointment as such."

"PRINCIPAL ELECTORAL OFFICER

19. There shall be a Principal Electoral Officer who shall be a public servant.

FUNCTIONS OF ELECTORAL COMMISSION AND PRINCIPAL ELECTORAL OFFICER

20. (1) The Electoral Commission shall have general responsibility for and shall supervise the registration of electors and the conduct of elections to Parliament, the National Council of Chiefs, local government and municipal councils. The Commission shall have such powers and functions relating to such registration and elections as may be prescribed by Parliament. [Emphasis added]

(2) The Principal Electoral Officer shall have such powers and functions relating to such registration and elections as may be prescribed by Parliament. The Principal Electoral Officer shall keep the Commission fully informed concerning the exercise of his functions and shall have the right to attend meetings of the Commission, and shall comply with any directions that the Commission may give to him in the exercise of his functions.

(3) Every proposed bill and every proposed regulation or other instrument having the force of law relating to the registration of electors for the election of members of Parliament, the National Council of Chiefs, local government and municipal councils or to the election of such members shall be referred to the Commission and to the Principal Electoral Officer at such time as shall give them sufficient opportunity to make comments on it before the bill is introduced in Parliament or, as the case may be, before the regulation or instrument is made.

(4) The Electoral Commission may lay before Parliament such reports concerning the matters under their supervision, or any draft bill or instrument that is referred to them, as they may think fit."

"APPLICATION TO SUPREME COURT REGARDING INFRINGEMENTS OF CONSTITUTION

53. (1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."

Section 9(1) of the Representation of the People Act [CAP. 146] is the relevant legislative provision which is under challenge. It provides:-

QUALIFICATION FOR REGISTRATION AS A VOTER

"9. (1) A person shall be eligible for registration in the electoral list for the polling district in which he is a resident at the time of the preparation of the electoral list if he:

(a) is a citizen; and
(b) will have attained 18 years on or before the qualifying date". [Emphasis added].

Applying the law to the circumstance of the present case, it follows that:-

Article 4(2) of the Constitution provides for Parliament to prescribe conditions and restrictions on the electoral franchise. The powers of Parliament to make laws for the good Government of Vanuatu is set out under Article 16(1) of the Constitution.

Parliament legislates in respect to Article 4(2) of the Constitution by enacting the Representation of the People Act [CAP. 146].

Article 20(1) (2) of the Constitution mandate the Electoral Commission to have such powers and functions relating to such registration and elections as may be prescribed by Parliament. And the Principal Electoral Officer shall have such powers and functions relating to such registration and elections as may be prescribed by Parliament.

Counsel for the Applicants, Mr Willie Daniel, concedes that Parliament through the enactment of the Representation of the People Act provides the Electoral Commission with powers and functions relating to such registrations and elections.

The decision of the Electoral Commission complained of dated 4 January 2006 is based on the exercise of such powers and functions to implement Section 9(1) of the Representation of the People Act [CAP.146].

Although, it is not so clearly articulated by counsel for the Applicants, I understand the argument (for whatever it worths) to be that under the old system of registration of electors, the applicants who live in the Efate Rural were allowed to vote in Port-Vila Constituency. They move from rural residence and vote in Port-Vila constituency. Under the new system, the Applicants would no longer move to Port-Vila and vote for a candidate in Port-Vila. The Applicants will then be required to vote for a candidate of their choice at the place of their residence in accordance with Section 9(1) of the Representation of the People Act [CAP. 146]. So they claim that Section 9(1) of the Representation of the People Act [CAP. 146], which set the condition of residence, infringes their fundamental rights to freedom of expression and freedom of movement guaranteed under Article 5(1)(g) and (i) of the Constitution because they would no longer move in Port-Vila in the days of elections and vote for the candidate of their choice in Port-Vila city. In fine, the Applicants seem to say that their right to freedom of expression includes their right to vote for a candidate of their choice and because they would no longer be allowed to vote in Port-Vila constituency, they say that their right to freedom of expression and freedom of movement had been, have being or are likely to be infringed.

The question then to be asked is whether the right to freedom of expression includes the right to vote as suggested by the Applicants.

My answer to that suggestion is in the negative for the following reasons:-

Article 4(2) of the Constitution provides for the right of a citizen of 18 years of age to vote. That is a constitutional right of a citizen of Vanuatu of 18 years of age and it is not a right that the Constitution provides to all persons.

On the contrary, fundamental rights and freedoms under Article 5 of the Constitution which include freedom of expression and freedom of movement are fundamental rights and freedoms of the individual recognized by the Republic of Vanuatu, to all persons in Vanuatu, regardless of his race, place of origin, religious or traditional beliefs, political opinions, language or sex.

The constitutional right of a citizen of 18 years of age to vote under Article 4(2) of the Constitution, does not form part of the fundamental rights and freedoms of the individual enshrined under Article 5 of the Constitution.

The right to freedom of expression does not include the right to vote. The right to vote is the right of a citizen of 18 years of age to participate in the democratic process of voting for a candidate of his choice in the fulfilment of Article 4(1) of the Constitution. The Applicants, as Ni-Vanuatu citizens, are eligible for registration in the electoral list for the polling district in which they are resident at the time of the preparation of the electoral list in accordance with Section 9(1) of the Representation of the People Act [CAP.146].

The right to freedom of expression is more akin to freedom of speech. Although, the type of expression protected cannot be ascertained with certainty at this stage, the following is a useful but by no means exhaustive indication of the scope of the right to freedom of expression, which has been distilled from the decisions of Commonwealth Courts, which is to be found in Mahmudul Islam, Constitutional Law of Bangladesh, (1995) at 209-11:

"The freedom consists of the right to express one’s conviction and opinion on any matter orally or by writing, printing or any other mode addressed to the eyes and ears of other persons. It includes not only the freedom to express one’s ideas through any visible or audible representations made to others but also the right to acquire and import from other ideas, thoughts and information about matters of common interest and thus the right to read and be informed. The right to paint, sing, dance or to write poetry or literature is covered by this article as at the core of these activities lies the freedom of speech and expression. The freedom includes the right to exhibit and see cinematographic films and dramatic performances as being very important media of expression...

The freedom is not limited to mere expression of words. It extends to symbolic speech like the display of a read flag as a symbol of opposition to organized government of the display of the national flag upside down with a peace symbol affixed as a protest against government action or the wearing of black armbands by students as a symbolic protest against war... it includes the freedom of discussion and dissemination of knowledge and ideas. The right cannot be denied simply because the idea is not a popular one or that it is a hateful or foolish idea. The freedom includes the right of peaceful demonstrations and the right of labour to publicize facts of a labour dispute by peaceful picketing...

Freedom of speech and expression is not confined to any particular field of human interest, but guarantees the broadest exercise of the right for religious, political, economic or informational ends. The right to discuss public affairs includes the right to criticize the government including its defence policy and the conduct of the Armed forces... The freedom includes the right not to speak... Freedom of speech and expression includes the freedom of circulation and distribution of printed matter like pamphlets and leaflets. Any prior restraint or requirement of licence or permit for the distribution of any literature would, in general be unconstitutional."

There is no evidence before the Court that the new system of registration had, has or will be infringing the rights of the Applicants to freedom of expression and freedom of movement. Quite the contrary is established. The Applicants will still exercise their rights to vote to the candidates of their choice at the place of their residence. They will still express themselves and they will still move freely.

I, finally, may apprehend the Applicants’ concerns or complaints to be that with the new system of registration of eligible voters, they would not be able to vote for the same candidate(s) that they used to vote for in the past elections in the Port-Vila Constituency. Be it as it may be, what is protected is the right for each Applicant as citizen to participate in the democratic process of electing a representative. It is a fallacy and an absurdity to confuse between the exercise by the Applicants of their right to vote and an attempt of securing the result of the process of voting through the claim for breaches of fundamental rights and freedoms guaranteed and protected by the Constitution.

The amended Constitutional Application filed on 14 September 2006 by the Applicants is misconceived. I accept the Attorney General’s Application that it must be struck out. It is so struck out.

Section 9(1) of the Representation of the People Act [CAP.146] is not contrary to Article 5(1)(g) & (i) of the Constitution and it does not infringe the constitutional rights of the Applicants. The decision of the Electoral Commission of 4 January 2006 is a decision based in law.

ORDER

1. The Applicants’ fundamental rights under the Constitution are not infringed.

2. Section 9(1) of the Representation of the People Act [CAP.146] is not contrary to Article 5(1)(g) & (i) of the Constitution and it does not infringe the Applicants’ fundamental rights.

3. The Constitutional Application is struck out in its entirety.

4. The Respondent, The Republic of Vanuatu, is entitled to her costs to be agreed if not taxed.

DATED at Port Vila this 20th day of March 2007

BY THE COURT

Vincent LUNABEK
Chief Justice