|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
Civil Case No. 126 of 1996
BETWEEN:
Hon. Willie Jimmy MP, Hon. Barak T. Sope MP, Hon. Albert Ravutia MP, Hon. Father Walter Lini MP, Hon. Vincent Boulekone MP, Hon. Serge Vohor MP, Hon. Jeffrey Lava MP, Hon. John Morris Lee Solomons MP, Hon. Keasipae Song MP, Hon. Masing Alfred MP, Hon. John Hughug Dickinson MP, Hon. Soksok Vital MP, Hon. Melsul Edouard MP, Hon. Paul B. Telukluk MP, Hon. John Tari MP, Hon. Shem Naukaut MP, Hon. Edgel Wetin MP, Hon. Bakon Gideon Fred MP, Hon. Embert Jimmy MP, Hon. Allen Bule MP, Hon. Demis Lango MP, Hon. Sato Kilman MP, Hon. Naunun Harris Iaris MP, Hon. Iauko Henry MP, Hon. Edgel William MP, Hon. David Robert Karie MP, Hon. Hilda Lini MP
all being Members of Parliament
PetitionersAND:
ATTORNEY-GENERAL
First RespondentAND:
NIPAKE EDWARD NATAPEI MP
Speaker of Parliament
Second RespondentCoram. Mr. Justice Lunabek Vincent
Counsel: Mr. J. Baxter Wright for the Petitioners
Mr. O. Saksak, the Hon. Attorney General for the RespondentsJER">JUDGMENT
By Summons dated 30 August 1996, the Petitioners herein, claimed relief as set out in the Constitutional Petition against the First and Second Respondents. The Constitutional Petition was supported by an affidavit of one of the Petitioners, namely Honourable Willie Jimmy MP and Leader of the Opposition in the National Parliament of the Republic of Vanuatu. The Petitioners apply to the Supreme Court for the exercise of its jurisdiction under Articles 53(1) and 53(2) of the Constitution and in conjunction with Section 218 of the Criminal Procedure Code Act (CAP 136) in the terms set out in the Petition as follows:-
1. A Declaration that the decision of the Speaker dated 29 August 1996, to dismiss the Petitioners' request for an Extraordinary Session of Parliament is unconstitutional and unlawful.
2. An order that the Speaker shall forthwith summon Parliament to meet in Extraordinary Session in seven days time.
3. An order that the Clerk of Parliament shall forthwith send to each Member a notice stating that the Extraordinary Session will commence in seven days time.
4. A declaration that the constitutional rights of the Petitioners and each of them have been infringed.
5. Costs.
6. Such further or other Orders and Declarations as this Honourable Court deems fit.
The matter came before me on the same day 30 August 1996. The summons to hear the matter on that day was refused on the ground that the Court would certainly not make an important Declaratory Order against the Speaker of Parliament without him being served with the summons and the Petition. The matter was then adjourned to 31st August 1996 at 9.00 am forenoon and the time for service was abridged.
On Saturday 31 August 1996, the Attorney General applied for further adjournment on the basis that he had received instructions from the Council of Ministers that they want to get services of a foreign legal Counsel to represent the Honourable Attorney General of the Republic of Vanuatu and the Honourable Speaker of Parliament before the Supreme Court. I did refuse the application to further adjourn the matter on the grounds that the Attorney General is the more Senior Legal Officer of this country and as such is very capable of performing his duty to represent the Vanuatu Government and, as in practice, the Speaker of Parliament, and considering the urgency of the matter. The Attorney General is in a better position to argue on legal and constitutional points which will arise in the proceedings before this Court (being that the Attorney General provided legal advice to the Honourable Speaker on these matters the subject of the present proceedings).
I must point out that, in that case, all applications were done in open court, thus, general public is allowed. There is no application to dismiss the Petition in pursuant to Section 218 (4) of the Criminal Procedure Code Act CAP 136.
Article 53 of the Constitution constitutes the legal basis upon which such applications can be made to the Court.
Article 53 of the Constitution says:
" (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 the jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."
In conjunction with Article 53 of the Constitution, Section 218 of the Criminal Procedure Code Act CAP 136 in Part III of the said Act set out the procedure to be followed when such applications were brought before the Court.
Section 218 reads:
(1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles .... 53(1), 53(2) .... of the Constitution shall be by petition and shall be valid no matter how informally made.
(2) The Supreme Court may on its own motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require.
(3) The petitioner shall, within 7 days of the filing of his petition in the Supreme Court or within such longer period as the court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents files in relation to such petition to be served on the party or on all those parties whose actions are complained of.
(4) Any party who is served with a copy of the petition in pursuance of sub-section (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.
(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and inquire into it.
It shall summon the party or parties whose actions are complained of to attend the hearing.
The background and factual situation of this case are as follows:
- On 26 August 1996, 27 Members of Parliament including 2 suspended Members of Parliament signed a request to the Honourable Speaker of Parliament that Parliament be summoned to meet in Extraordinary Session in accordance with the provisions of Article 21(2) of the Constitution of the Republic of Vanuatu, and section 14 of the Standing Orders of Parliament (as set out in the Affidavit of Mr. Willie Jimmy MP and Leader of the Opposition in Annexure "A").
- On the same date (26 August 1996) a notice of Motion of No Confidence in the Prime Minister, Maxime Carlot Korman MP, of the same date, were signed by one-sixth of the Members of Parliament, that is, 9 Members and has been given to the Speaker. (see Affidavit of Hon. Willie Jimmy MP, referred to above in Annexure "B").
- Again on 26 August 1996, pursuant to Standing Order No. 35 of the Standing Orders of Parliament, Notice of written Motion to reinstate suspended Members of Parliament on the same date were addressed and handed to the Clerk of the Parliament [Affidavit referred to above - Annexure "D"].
- In his letter dated 29 August 1996 addressed to each of the Petitioners, the Honourable Speak of Parliament brought to the knowledge of the Petitioners that on Monday 26 August 1996 at 7.30 am o'clock, the Hon. Prime Minister deposited with the office of the Speaker a formal Request for the Parliament to meet in its Third Extraordinary Session to debate 9 Government Bills. He did accept the request and summonses were issued to Hon. Members of Parliament to sit on Monday 30th September 1996.
He then expressed the view that no such other request including the Petitioners' request can be entertained in advance of the one that has been accepted in the first place by the office of the Speaker of Parliament. He, therefore ruled that the second request, that of the Petitioners dated 26 August 1996 purported to cause the Hon. Speaker of Parliament to summon the Parliament to meet on 6 September 1996 in an Extraordinary Session of Parliament was, thus, found by the Hon. Speaker of Parliament as not in order and dismissed it on points of irregularities.
It follows, therefore, that the Petitioners and each of them are concerned that the decision of the Hon. Speaker of Parliament to refuse to summon an Extraordinary Session of Parliament pursuant to a lawful request made in accordance with the provisions of Article 21(2) of the Constitution is in breach of the terms of the Constitution of the Republic of Vanuatu and unlawful, and they thus petition this Court seeking for relief contained in the Constitutional Petition.
Before I proceed any further, I do think it necessary to make few observation concerning the role of the Court and my role as a Judge of this Court, in the type of cases as this one. Vanuatu is a small country with a small size population and thus a small community in which people tend to know each other, have strong family relationships, have custom and traditional values. Some of you today in this Court are chiefs, leaders of the Community, that is, "Big Men" and "Big Women" of this Country. You brought your application before the Court of law seeking for justice. As far as I am concerned as a Judge of the Supreme Court of the Republic of Vanuatu, I must make it quite clear that the Law I am bound to apply in this case and cases of this nature, is the Law of Vanuatu. I will apply that Law to this case without any consideration whatsoever for political views or policies or its consequences. Those political and/or policies considerations and its consequences are for you only, "Big Men" and "Big Women" to consider but, not for the Court. In order to explain further the role of the Court, I will borrow and adopt the words of Megarry V.C. in the case of John -v- Rees (1969) 2 All E.R. 363 at 367, who describes the role of the Court in this way:
"I Must make explicit what all lawyers will recognise as implicit, but which those who are not lawyers may not fully appreciate. I am not in the least concerned in this case with the rightness or wrongness or the desirability or undesirability of any political views or policies within the confines of any political or other unit. My concern is merely to see that those concerned in these proceedings obtain justice according to law, irrespective of politics".
Article 43(2) of the Constitution provides that:
"Parliament may pass a motion of no confidence in the Prime Minister. At least one 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."
Under Art. 43(2) of the Constitution, the strict Constitutional requirement is that 'at least one week's notice must be given to the Speaker of such a motion. The other Constitutional requirement is that the Motion must be signed by one sixth of the Members of Parliament. The number of members in Parliament being 50, the motion must be signed therefore by at least 9 members so as to comply with the provisions of Article 43(2).
Further Article 21(2) of the Constitution says:
"Parliament may meet in extraordinary Session at the request of the majority of its members, the Speaker or the Prime Minister."
It must be noted therefore that apart from the Prime Minister, and the Speaker of Parliament, an Extraordinary Session of Parliament may be requested by the majority of its members. In the present time, the majority would be 26 members. It is true that there is no period of time stated in the Constitution itself to be followed for such a request, nor does the Constitution specify it must be in writing.
Nevertheless, Article 21(5) of the Constitution provides that:
"Parliament shall make its own rules of Procedure."
On the basis of the said Article, Standing Orders of Parliament were made in 1982. Section 14 of the Standing Orders of Parliament Provides:
(1) Whenever the Speaker so decides or is requested by the Prime Minister or the majority of the Members of Parliament, he shall summon Parliament to meet in extraordinary session.
(2) Any request made to the Speaker under paragraph (1) shall be in writing and shall be signed by the Prime Minister or the members requesting the extraordinary session. Such request shall contained:
(a) The reason for which an extraordinary session is requested;
(b) A statement of the specific matter or matters to be discussed during the extraordinary session;
(c) The expected duration of the extraordinary session and a proposed date for its opening.
(3) The business to be transacted by Parliament during an extraordinary session shall be limited to the matter or matters referred to in the request made to the Speaker under paragraph (2).
(4) An extraordinary session shall be limited to one meeting of Parliament unless the Speaker otherwise decides for special reasons.
(5) The Clerk shall send to each Member a notice stating that the extraordinary session will commence on the date specified therein. The notice shall contain a statement of the matter or matters to be discussed during such session. The notice shall be given at least seven(7) days before the opening of the extraordinary session.
Section 35 of the Standing Order of Parliament states:
(1) Any Member who wishes to make a written motion shall give notice thereof by delivering to the Clerk a copy of it signed by him and by one other Member acting as seconder not less than three (3) clear days before the day on which he intends to move such motion.
(2) The Clerk shall give a copy of the motion to each Member as soon as possible before the time on which the motion shall be debated.
(3) ........
(4) When a written motion has been moved, the Speaker shall propose the question thereon as the motion and debate may then take place......
(5) When the debate on the motion has been concluded, the question shall forthwith be put by the Speaker.
(6) ........
It is important to go through these constitutional provisions and Standing Orders of Parliament which are relevant in the present case.
Mr. Baxter Wright submitted on behalf of the Petitioners that the request of the Petitioners for Parliament to meet in extraordinary session was signed by the majority of the Members of Parliament which represent 27 Members of Parliament pursuant to Art. 21(2) of the Constitution.
The Notice of Motion of No Confidence in the Prime Minister was made in compliance with the Constitution that is one (1) week notice has been given to the Hon. Speaker of Parliament and the Motion of No Confidence was signed by one sixth of the members that is to say, being 50 Members in Parliament in total, 9 members signed the Motion of No Confidence which is in compliance with Art. 43(2) of the Constitution.
It is, further, submitted for the Petitioners that it is lawful that Parliament sat any time 7 clear days after receiving such request and notice. It is also put for the Petitioners that a further notice was given to the Clerk of Parliament pursuant to Section 35 of the Standing Orders of Parliament, to reinstate two (2) suspended Members of Parliament. The requirement of Section 35 of the Standing Orders of Parliament was respected.
It is, therefore, submitted for the Petitioners that, the Hon. Speaker of Parliament by dismissing the Petitioners' request to summon the extraordinary meeting of Parliament infringed the constitutional rights of the Petitioners as Members of Parliament to meet in extraordinary session of Parliament.
Referring to the Speaker's letter in which the Hon. Speaker of Parliament dismissed the Petitioners' request, Mr. Baxter Wright contended for the Petitioners that there is no legal basis for the Hon. Speaker to have come to the decision he made. Mr. Baxter Wright pointed out that the effect of the Speaker's ruling is to deny the Petitioners' Constitutional rights as Members of Parliament and the Petitioners' Constitutional rights could be denied in Perpetuity. The matter must be dealt with very quickly because every minutes lost constitute further infringement on the Petitioners constitutional rights.
Further, he went on to argue that the fact that the Speaker did accept the Prime Minister's request to summon an extraordinary meeting of Parliament and would summon the Parliament to meet on 30 September 1996 would not preclude the Petitioners' rights to have a separate extraordinary session of Parliament requested by them on 6 September 1996.
Mr. Baxter Wright concluded that the decision of the Hon. Speaker to refuse to summon the Parliament to meet in extraordinary session as requested by the Petitioners is unconstitutional, and therefore, unlawful and void.
Mr. Oliver Saksak, the Hon. Attorney General, on his own behalf as representative of Vanuatu Government and on behalf of the Hon. Speaker of Parliament submitted that there is no dispute, Article 21(2) of the Constitution and S. 14(1) of the Standing Orders of Parliament are complied with. However, the learned Attorney General invites the Court to rule on the following points:
- The first point is whether two (2) suspended Members of Parliament can be signatories to the request sent to the Hon. Speaker of Parliament to summon Parliament to meet in extraordinary session.
-The second point is whether suspended Members of Parliament have signed the request and if they will not actually or physically be present in Parliament whether the request is purported to be a request signed by the Majority of the Members of Parliament or not.
I will join these two (2) questions and I will give a single answer to both.
Article 28 (1) of the Constitution says that:
"Parliament ..... shall continue for 4 years from the date of its election."
It follows that an elected-representative of the people of this country is elected for 4 years. If a Member of Parliament is suspended, his/her suspension is for temporary period or for a limited number of sessions voted upon by Parliament. But he/she does not cease to be a Member of Parliament, and he/she still retains the rights of his electors to be represented in Parliament and his/her own right as a Member of Parliament.
The very reason why a request signed by a suspended Member of Parliament is valid, in my view, is because it is in the interest of his electors to be represented in Parliament and the right of the elected Member of Parliament as a Member of Parliament to see that parliamentary procedures do not infringe the Constitution. Any such infringement must relate to him/her in that capacity and as such I rule that a suspended Member of Parliament has a right to be a signatory to the request sent to the Hon. Speaker of Parliament to summon an extraordinary session of Parliament. It is to be noted that the fact that the suspended Members of Parliament are signatories to the request to summon the Parliament is one thing. The fact that they will be present or not in Parliament is a different matter. But the request to summon Parliament is valid and thus, lawful.
The learned Attorney General conceded also that the Respondents did not dispute in substance the Notice of Motion and the Motion of No Confidence in the Prime Minister signed by 9 Members of Parliament which were made in compliance with the provisions of the Constitution.
Nevertheless, he argued that the suspensions imposed on two (2) Members of Parliament have been made in an ordinary session of Parliament under the provision of Section 35 of the Standing Orders of Parliament, on Written Motion which is a matter for Ordinary session, and, thus, to be dealt with only in an ordinary session. He went on to question as to whether or not the procedure of Section 35 of the Standing Orders of Parliament which is a procedure adopted for written Motion in ordinary session can be used in a matter purported to be dealt with in an extraordinary session.
I admit I have some difficulties to understand the argument.
Article 2 of the Constitution states:
"The Constitution is the Supreme Law of the Republic of Vanuatu."
Article 21 of the Constitution:
(1) Parliament shall meet twice a year in ordinary session.
(2) Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.
There is no provision in the Constitution which specify two (2) categories of matters in the sense that one category of matters will be dealt with in ordinary session of Parliament and a second category of matters to be dealt with in extraordinary session.
Section 9 (1) of the Interpretation Act CAP 132 provides:
"Every Act shall be read and construed subject to the Constitution ...."
Section 10 of the same Act CAP 132 reads:
10(1) " A general reference to Acts of Parliament shall be construed as including -
(a) ...... a general reference to Statutory Orders.
10(2) "A general reference to Statutory Orders shall be construed as including a general reference to any proclamation rules, regulations, by-laws, orders..."
Standing Orders of Parliament do not either contain any provision relating to different type of matters to be discussed by Parliament either in its ordinary or extraordinary session.
It is to be noted that Parliament may make laws for the peace, order and good government of Vanuatu either at its ordinary sessions or at its extraordinary sessions. A practical illustration of this can be seen in the example of Vanuatu Government Budget. It is the practice that the Budget of Vanuatu Government was debated by Parliament in its second ordinary session. But on the following year, the supplementary budget sessions could be held in an extraordinary sessions of Parliament. Any Bill can be debated whether in an ordinary or extraordinary session of Parliament.
In the case before the Court, if it is true that the two (2) Members of Parliament were suspended in an ordinary session (as I have no evidence before me) I cannot see any reason why the reinstatement of the Members of Parliament concerned cannot be tabled before the Parliament to be debated in one of its extraordinary sessions. Thus, in my judgement, suspensions of the Members of Parliament, which were made in an ordinary session as alleged, is one thing. Their reinstatement is a different thing and can be dealt with in an extraordinary session of Parliament and I so hold.
On the second point raised by the learned Attorney General, as to whether or not the procedure of Section 35 of the Standing Orders of Parliament which is a procedure adopted for written motion in an ordinary session of Parliament to suspend the Members of Parliament concerned could be used to reinstate them in an extraordinary session.
Section 8 of the Interpretation Act CAP 132 says that:
"An Act (including Standing Orders of Parliament) shall be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."
Section 9(1) of the Interpretation Act says:
"Every Act shall be read and constructed subject to the Constitution."
In the case before the Court, as it has already been said, the learned Attorney General conceded that the Respondents did not dispute that the Petitioners were in compliance with Articles 21(2), 43(2) of the Constitution and Section 14(1) of the Standing Orders of Parliament. Therefore, by reading Section 9(1) of the Interpretation Act and in conjunction with Section 8 of the same Act, I find and I am satisfied that by using the procedure under Section 35 of the Standing Orders of Parliament in the Notice of Written motion to reinstate the suspended Members of Parliament in an extraordinary session of Parliament, the Petitioners commit no irregularities. If a matter such as a written motion can equally be dealt with either in an ordinary or extraordinary session of Parliament, I have no difficulty to hold that the procedure adopted in an ordinary session could be used in an extraordinary session if no specific procedure is provided to that effect. But if, any procedural irregularities were committed by the Petitioners in that respect, these irregularities must be taken to be of a technical nature which could not vitiate the validity of the motion to reinstate the suspended Members of Parliament and I so rule.
The learned Attorney General, further referring to the decision of the Hon. Speaker refusing and dismissing the Petitioners' request to summon Parliament to meet in an extraordinary session of Parliament said the Hon. Speaker did receive two requests on 26 August 1996 to summon Parliament to meet in extraordinary session. The first request is the one deposited by the Hon. Prime Minister and he did accept it and summon Parliament to meet on 30 September 1996 in an extraordinary session. The second request was made by the Petitioners and moved for the Speaker to summon Parliament to meet in extraordinary session on the 6 September 1996. He then submitted that the Hon. Speaker accepted the first request and refused the second request. It is a decision he made as the Hon. Speaker of Parliament.
Mr. Baxter Wright in his reply gave the analogies of a Taxi driver and the case management and listing of cases before the Supreme Court.
I do not need to go through these analogies here but, in substance, Mr. Baxter Wright said, the decision of the Hon. Speaker is made without authority and thus unconstitutional.
With the greatest respect to the Hon. Speaker of Parliament, I agree with Mr. Baxter Wright on behalf of the Petitioners that the decision of the Hon. Speaker dated 29 August 1996 was made with no authority and thus unconstitutional.
The Hon. Speaker of Parliament has (2) different types of functions:
First in the office of the National Parliament, the Speaker is responsible for the General Organisation of the Parliamentary Work, in particular relating to Notices received from or sent to Hon. Members of Parliament to meet in ordinary or extraordinary sessions and also for the direction concerning debates in Parliament.
Second, inside the Parliament House when he takes the Chair of the Speaker to preside over the debates. That is to say when Parliament is in session.
In that regard, Article 22 (2) says that:
"The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order."
The powers and duties of the Hon. Speaker are detailed in Section 10 of the Standing Orders of Parliament which reads:
(1) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order. In exercising his duties, the Speaker may request assistance from officers of Parliament or if necessary, members of the Police Force.
(2) The Speaker shall preside over debates in Parliament and ensure that the Standing Order, practices and procedures of Parliament are respected and observed by all Members.
(3) The Speaker shall not participate in any debate before Parliament. In the case of equality of votes, the Speaker shall give a casting vote and any reason stated by him shall be entered in the minutes of the sitting.
(4) The Speaker shall read or cause to be read by the Clerk the results of any vote or debate of Parliament.
(5) The Speaker shall represent Parliament and sign any official document originating from Parliament."
In the present case, as conceded by the Attorney General on behalf of the Speaker, on the face of it, all the Constitutional requirements were complied with by the Petitioners. In my judgement, this is sufficient for the Speaker to accept the Petitioners' request. The decision he made is part of the 1st category of his functions. That is, it is an administrative function within his office.
Therefore, if, in substance, any irregularities come to his attention, he should first accept the request, summon the Parliament as requested by the majority of the Parliament members and then discussions or debates concerning these irregularities can be forwarded inside the Four (4) Halls of the National Parliament.
In this case, the Speaker has no authority to discuss request lawfully made by the majority of the Members. If the Speaker wishes to rise the question of irregularities, if any, he should do it inside the Parliament whether in ordinary or extraordinary session.
Section 10(2) of the Standing Orders of Parliament gives the Speaker the power to do so in that:
"The Speaker shall preside over debates in Parliament and ensure that Standing Orders, practices and procedures of Parliament are respected and observed by all Members."
In the present case, I accept the submission for the Petitioners that the Speaker has no choice but has a mandatory obligations to summon the Parliament whenever he received such a request. In my judgement, the Speaker has a constitutional obligation to summon the Parliament as it is conceded by the Attorney General, all the constitutional procedural requirements were complied with by the Petitioners.
The Speaker's refusal of the Petitioners' request to summon Parliament in an extraordinary session of Parliament, is an administrative decision within the Chambers of the Hon. Speaker. It is not a decision made inside the "Four Halls" of the National Parliament in session and it infringes the rights of the Petitioners, Members of Parliament which are enshrined in the Constitution. In that respect, I hold the view that, in this case, the Court can intervene to enforce and/or guarantee the implementation of the rights of the Petitioners by way of declarations but not orders as requested by the Petitions' solicitor.
It has to be noted that if the decision of 29 August 1996 of the Hon. Speaker was made inside the Parliament Session, this Court would have no power, at all, to intervene. But this is not the situation in the present case.
It is common ground that Vanuatu has adopted a Parliamentary Democracy System of Government. That System can effectively operate only on the basis that the Parliament exercises its control over the Executive Branch of the Government. If the Parliamentary control over the Government is ousted or removed from the Parliament, the System of Parliamentary Democracy can no longer operate and the System will cease to be a Parliamentary System of Government.
Further it must be understood that the Constitutional procedure to allow Parliament to exercise effectively his control over the Executive Branch of the Government is by way of Sessions and in particular the extraordinary sessions of Parliament. It has to be understood and remembered always that in a System of Government founded and rooted on the principle of the Parliamentary Democracy System of Government, the extraordinary sessions of Parliament must always be possible at the request of the majority of the Members of Parliament. The very essence of this is that, it is at the initiative of their electors/citizens and on their own behalf as citizens/elected-representatives. In that respect, one can see that for the Parliamentary System of Government of this Country to remain a Democratic System of Government the extraordinary sessions of Parliament must always be possible at the request of the majority of the Members of Parliament as enshrined into the National Constitution of this Country (Article 21(2)).
If, as in the present case, the request by the Members of Parliament to summon Parliament to meet in extraordinary sessions is refused to them, it is in my judgement, unconstitutional.
The effect of the decision of the Hon. Speaker to refuse the request of the Petitioners to summon Parliament on 6 September 1996, is to hinder or preclude a Member of Parliament from freely exercising his right, as a Member of Parliament, and too more importantly, to exercise the right of his electors/citizens of this Country, to express an unfavourable opinion in the Government leadership by a constitutionally provided procedure of Parliament, namely motion of No Confidence. Therefore, the decision of the Hon. Speaker of Parliament dated 29 August 1996 refusing the request of 27 Members of Parliament/Petitioners, is unconstitutional in that it infringes the fundamental rights to freedom of expression of a Member of Parliament in Parliament and I so rule and grant the following Declarations and Orders:
1. A Declaration that the decision of the Hon. Speaker dated 29 August 1996, to dismiss the Petitioners' request for an Extraordinary Session of Parliament is unconstitutional and unlawful.
2. A Declaration that the Speaker shall forthwith summon Parliament to meet in Extraordinary Session in seven days time.
3. A Declaration that the Clerk of Parliament sends to each Member a notice stating that the Extraordinary Session will commence in seven days time.
4. A Declaration that the constitutional rights of the Petitioners and each of them has been infringed.
5. Costs to be paid by the Respondents and to be taxed failing agreement.
Dated at Port-Vila, this 2nd day of September 1996
BY THE COURT
LUNABEK VINCENT J.
JUDGE
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1996/15.html