Home | Databases | WorldLII | Search | Feedback Vanuatu Law Reports

Constitution, In re; application by the Speaker of Parliament [1988] VULawRp 17; [1980-1994] Van LR 393 (16 December 1988)

[1980-1994] Van LR 393

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 159 of 1988

IN THE MATTER OF
THE CONSTITUTION OF THE REPUBLIC OF VANUATU

AND:

IN THE MATTER OF
AN APPLICATION BY THE SPEAKER OF PARLIAMENT OF VANUATU

Coram: Chief Justice Cooke
Mr S. Hakwa for applicant

JUDGMENT

[CONSTITUTIONAL LAW - PRESIDENT - PARLIAMENT]

Today the 19th day of December 1988, Mr Hakwa, Attorney General, Counsel for the Speaker of Parliament applied ex parte to the Court for certain Orders relating to the speech made by the President of the Republic to Parliament on the 16th day of December 1988, when he purported to dissolve Parliament. Before dealing with the matter in issue I am of the opinion it would be in order for me to set out the only powers of the President under the Constitution in view of the purported powers which the President considers he possesses.

They are:-

1. Article 16(4) states:-

• "If the President considers that the bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution."

2. Article 26 states:-

• "(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 one 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."

3. Article 36 states:-

• "The President of the Republic may pardon, commute or reduce a sentence imposed on a person convicted of an offence. Parliament may provide for a committee to advise the President in the exercise of this function."

4. Article 37 (3) states:-

• "The President of the Republic may refer to the Supreme Court any regulation which he considers to be inconsistent with the Constitution."

From the provisions of the aforementioned Articles it can be seen that the powers of the President are specific and limited. These are the only powers the President possesses. He, the President, cannot assume powers or can he contend he has implied powers in so far as his powers are so clearly set out in the Articles mentioned.

Therefore the action of the President on the 16th day of December 1988, when at the end of his speech to Parliament he purported to dissolve Parliament is illegal and unconstitutional for the following reasons:-

(1) I am informed by Mr Hakwa, Counsel for the Speaker that Parliament did not pass any resolution as required under Article 26(2) and the affidavit of the Speaker filed confirms this; and,
(2) An affidavit has been sworn by the Prime Minister and filed in the Court that the Council of Ministers did not advise dissolution as required under Article 26(3) of the Constitution.
Why the President assumed a power not given to him under the Constitution is difficult to understand. In my opinion it is abundantly clear to anyone from the provisions of the Constitution that the President did not possess the power to dissolve Parliament as he purported to do on the 16th day of December l988.

The Court therefore holds that such purported dissolution to be illegal and unconstitutional and in no way affects the present life of Parliament duly elected by the people of Vanuatu.

It also follows that the further action by the President such as the swearing in of an interim Government following the illegal and unconstitutional dissolution of Parliament is an unlawful act and again in no way affects the life of Parliament.

The first Order which the Speaker seeks is that the purported declaration dissolving Parliament made in Parliament on the 16th day of December by President Sokomanu was and is unconstitutional, unlawful and is invalid and of no effect is therefore granted.

The Second Order applied for is dismissed as it is clear from Article 34(2) of the Constitution that the Court cannot entertain the application being a matter for the Electoral College.

16 December 1988.

FREDERICK G. COOKE
CHIEF JUSTICE