IN THE COURT OF APPEAL OF THE COOK ISLANDS
CA No. 156/93

BETWEEN

PUPUKE ROBATI
of Rarotonga, Member of Parliament
Plaintiff

AND

THE PRIVILEGES STANDING COMMITTEE
of the Parliament of the Cook Islands
First Defendant

AND

THE SPEAKER
of the Parliament of the Cook Islands
Second Defendant
Coram: Quilliam J.A. (Presiding)
Barker J.A.
Dillon J.A.

Counsel: Mr McFadzien, Solicitor General and
Dr G.P. Barton Q.C. for Defendants
Mr B.H. Giles, Mr M.C. Mitchell and Mrs S.R.A. Anderson for Plaintiff

Hearing: 17 December 1993
Date of Judgment: 7 February 1994

JUDGMENT OF QUILLIAM J.A.

A motion by the Defendants to strike out an action commenced by the Plaintiff in the High Court has been removed into this Court. It concerns an important constitutional question which requires determination as to the jurisdiction of the Courts to review the proceedings of Parliament.

It is necessary first to set out the facts alleged in the Plaintiff's Statement of Claim and it needs to be noted that, for the purposes of an application to strike out, it must be assumed that the facts alleged will be capable of proof.

The Facts

The Plaintiff is a member of the Cook Islands Parliament. The first Defendant is a Standing Committee established by Parliament pursuant to its Standing Orders. The second Defendant is the Speaker of the Parliament.

On 13 July 1993 the First Defendant ("the Committee") considered and made recommendations to Parliament in Parliamentary Paper No. 9 ("Paper No. 9") in respect of disciplinary offences in relation to Parliamentary conduct.

On 23 August 1993 the Plaintiff spoke in Parliament in a debate on what was known as Parliament Paper No. 6 concerning a report on an audit of the country's financial statements. On 24 August the Speaker permitted Paper 9 to be tabled in the House. On 27 August Parliament resolved to accept and adopt Paper 9 to be effective as and from the date on which it was tabled, namely 24 August.

On 29 September 1993, in accordance with a resolution of Parliament, the Speaker issued a summons to the Plaintiff requiring him to attend before the Committee to answer a charge expressed in these terms:

"That the Honourable Member Dr Pupuke Robati, Member for Rakahanga be referred to the Privileges Standing Committee pursuant to the recommendations of the Privileges Standing Committee following its meeting on 13 July 1993 and tabled in this House on Tuesday 24 August 1993 on the grounds that the Honourable Member Pupuke Robati made a wilfully misleading statement in this House on Monday 23rd August 1993 when he alleged inter alia that the Honourable Vincent Ingram, Member for Mikao/Panama-

(a) is being paid above his Member of Parliament salary in an amount exceeding $200,000;

(b) that this sum is being deducted from $7 million appropriated for ECIL;

(c) and that the ECIL car in Auckland was not being utilised for the work of the Sheraton and ECIL but family purposes."

The Plaintiff appeared before the Committee in answer to the summons. He requested the right to be represented by counsel, but this was declined. The Committee then considered the charge and in due course made a finding that the actions of the Plaintiff did not amount to a deliberate act to mislead the House and the public.

The Committee then submitted a report to Parliament on the hearing of the charge and, notwithstanding its findings, recommended that the Plaintiff be ordered to make himself available in Parliament to:

"10.1 (a) Apologise fully to the Honourable Member Vincent Ingram for the misleading and damaging allegations he made against the Honourable Vincent Ingram on 23 August 1993.

(b) Apologise fully to the members of the family of the Honourable Member Vincent Ingram for the disparaging remarks Dr Robati made against that family on 23 August 1993.

(c) Fully and completely retract all those misleading, erroneous, and damaging allegations against the Honourable Member Vincent Ingram and his family.

10.2 That the apology and retraction by the Honourable Member Dr Pupuke Robati are to be acknowledged by the Chairman of the Privileges Committee.

10.3 That an approved copy of the set of apologies and retractions be broadcasted and publicized over the National Radio, the Cook Islands Television and the Cook Islands News."

The Speaker then gave the Plaintiff notice to make the apologies referred to. On 19 October 1993 the Plaintiff was suspended from Parliament until such time as he tendered the apology referred to.

It needs to be observed that the terms of Paper 9 have not been pleaded and so this Court is not aware whether it created the offence with which the plaintiff was charged, nor whether it created some lesser offence of misleading Parliament although without having done so wilfully. For present purposes, however, the Court must assume that Paper 9 did at least create the offence of wilfully misleading Parliament. It must also be noted that, in terms of the Speaker's summons to the Plaintiff, it was pursuant to Paper 9 that the Committee was required to consider the charge against the Plaintiff.

The Plaintiff's Claim

On the basis of these allegations of fact the Plaintiff's claim is:

1. That, in accordance with the principles of natural justice, he was entitled to be represented by counsel at the hearing conducted by the Committee.

2. That, in accordance with Standing Orders, he could not in any event have been suspended from Parliament for a period exceeding 7 days.

3. That as the resolution of Parliament adopting Paper 9 was made retrospective only to 24 August, it could not have given the Committee or Parliament power to deal with a charge in respect of a matter occurring prior to that date. The Plaintiff has accordingly claimed that the proceedings and decisions of the Defendants in respect of what occurred were ultra vires, in excess of jurisdiction and/or without jurisdiction and/or were unreasonable or unfair and has sought declarations to that effect.

The Motion to Strike Out

By way of a preliminary response to the Statement of Claim the Defendants had moved to strike out the Plaintiff's action on the ground that, in accordance with the Constitution, the High Court does not possess jurisdiction to hear and determine the action or grant the declarations sought.

This motion raises the important constitutional question of the extent to which, if at all, the Courts have the jurisdiction to review and pronounce upon the proceedings of Parliament, and it will have been for this reason that the motion was removed into this Court.

The Statutory Provisions

The Plaintiff relies upon Articles 64 and 65 of the Cook Islands Constitution Act 1964, namely:

"64. Fundamental human rights and freedoms - (1) It is hereby recognised and declared that in the Cook Islands there exist, and shall continue to exist, without discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex, the following fundamental human rights and freedoms:

(a) The right of the individual to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with law;

(b) The right of the individual to equality before the law and to the protection of the law;

(c) The right of the individual to own property and the right not to be deprived thereof except in accordance with the law:

Provided that nothing in this paragraph or in Article 40 of this Constitution shall be construed as limiting the power of Parliament to prohibit or restrict by Act the alienation of Native land, (as defined in section 2(1) of, the Cook Islands Act 1915 of the Parliament of New Zealand);

(d) Freedom of thought, conscience, and religion;

(e) Freedom of speech and expression;

(f) Freedom of peaceful assembly and association.

(2) It is hereby recognised and declared that every person has duties to others, and accordingly is subject in the exercise of his rights and freedoms to such limitations as are imposed by any enactment or rule of law for the time being in force, for protecting the rights and freedoms of others or in the interests of public safety, order, or morals, the general welfare, or the security of the Cook Islands."

"65. Construction of law - (1) Subject to subclause (2) of this Article and to subclause (2) of Article 64 hereof, every enactment shall be so construed and applied as not to abrogate, abridge, or infringe or to authorise the abrogation, abridgement, or infringement of any of the rights or freedoms recognised and declared by subclause (1) of Article 64 hereof, and in particular no enactment shall be construed or applied so as to-

………...

(d) Deprive any person of the right to a fair hearing, in accordance with the principals of fundamental justice, for the determination of his rights and obligations before any tribunal or authority having a duty to act judicially; or

(e) Deprive any person charged with an offence of the right to be presumed innocent until he is proved guilty according to law in a fair and public hearing by an independent and impartial tribunal; or

…………

(g) Authorise the conviction of any person or any offence except for the breach of a law in force at the time of the act or omission;"

"(2) Every enactment, and every provision thereof shall be deemed remedial, whether its immediate purpose is to direct the doing of anything that the enacting authority deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal attainment [[of the object]] of the enactment or provision thereof according to its true intent, meaning and spirit."

"(3) In this Article the term "enactment" includes any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom, being an Act in force in the Cook Islands, and any regulation, rule, order, or other instrument made thereunder."

The Defendants place reliance on:

"34. Procedure

(5) Subject to the provisions of this Constitution, Parliament may from time to time make, amend, and repeal Standing Orders for the regulation and orderly conduct of its proceedings and the dispatch of business."

"36. Privileges of Parliament and of its members - (1) the validity of any proceedings in Parliament or in any committee thereof shall not be questioned in any Court.

(2) No officer or member or Speaker of Parliament in whom powers are vested for the regulation of procedure or the conduct of business or the maintenance of order shall in relation to the exercise by him of any of those powers be subject to the jurisdiction of any Court.

(3) No member or Speaker of Parliament and no person entitled to speak therein shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament or in any committee thereof.

(4) No person shall be liable to any proceedings in any Court in respect of the publication by or under the authority of Parliament of any report, paper, vote or proceeding.

(5) Subject to the provisions of this Article, the privileges of Parliament and of the committees thereof, and the privileges of members and the Speaker of Parliament and of the persons entitled to speak therein may be determined by Act:

Provided that no such privilege of Parliament or of any committee thereof may extend to the imposition of a fine or to committal to prison for contempt or otherwise, unless provision is made by enactment for the trial and punishment of the person concerned by the High Court."

Reference also needs to be made to s.4A of the Legislative Assembly Powers and Privileges Act 1967:

"4A Privileges of Assembly Subject to the provisions of the Constitution, the Assembly and the Committees and Members thereof shall have, hold, enjoy and exercise the like privileges, immunities and powers as are held, enjoyed and exercised by the House of Commons of the Parliament of Great Britain and Northern Ireland and by the Committees and Members thereof whether such privileges, immunities and powers are held, possessed or enjoyed by custom, statute or otherwise, and the Leader of the House may at any time give such instructions an may be necessary to ensure the orderly progress of parliamentary business and which are authorised or notified by the Assembly."

The jurisdiction of the High Court is contained in Article 47 of the Constitution and, in particular, Article 47 (2):

"47(2) Except as provided in this Constitution or by law, the High Court shall have all such jurisdiction, including jurisdiction (both civil jurisdiction, including jurisdiction in relation to land, and criminal jurisdiction) as may be necessary to administer the law in force in the Cook Islands."

Finally in respect of the principal statutory provisions, reference was made to Article 9 of the Bill of Rights 1688 (Eng.):

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court of place out of Parliament."

The Constitutional Principles

In a full and careful submission Dr Barton on behalf of the Defendants placed great reliance upon the words of Article 36(1) set out above, and upon the cases in England in particular which have, in effect, upheld the principle of the freedom of proceedings in Parliament from the scrutiny of the Courts. I do not refer in detail to those cases because the general principle appearing from them is well recognised and has not been contested in this case. The real question, however, concerns what truly are the "proceedings" of Parliament and whether the principle is absolute or permitting of exceptions.

I have derived considerable assistance from some decisions of Courts in countries which, like the Cook Islands, have a written constitution. In particular, a decision, of the Supreme Court of Zimbabwe is one with marked similarities to the present case. This was the case of Smith v Mutasa & Another (1990) 1 LRC (Const.) 87. It concerned the former Prime Minister of Zimbabwe (previously Southern Rhodesia) who was a member of the House of Assembly of the new country. He had, while visiting the United Kingdom, made remarks derogatory of the black people and their representatives in Zimbabwe. He was found guilty of a contempt of Parliament. He subsequently made further remarks of a similar kind and was then suspended by the House of Assembly for a year and deprived of his salary and allowances. He applied to the High Court for an order restoring his salary and allowances. The Speaker gave a certificate that the matter was one of privilege and the High Court held that the proceedings should thereupon be stayed on the basis that they had been finally determined. On appeal from the decision the Supreme Court allowed the appeal on the ground that there was no legal authority for the suspension of the remuneration.

While the Supreme Court was prepared to uphold the right of Parliament to deal with matters of privilege without scrutiny by the courts, and upheld also the principle of the supremacy of Parliament, it drew a distinction in the case of Parliament having acted unlawfully and contrary to its Constitution. In that case Parliament had the power to deal with Smith in respect of his remarks as a matter of privilege, but none of the prescribed penalties for such a matter included the power to suspend salary. Parliament had accordingly purported to act beyond its legal powers, and the Supreme Court was prepared to accept jurisdiction to deal with the matter.

That decision is one of compelling persuasion in the present case. If it is the case that the Committee purported to deal with the Plaintiff on 23 August for an offence which did not come into existence until the following day (and for present purposes we must accept that it did so) then the Committee was acting contrary to the provisions of Article 65(1)(g) and so in a manner which was unconstitutional. In such circumstances it must be proper for the Court to intervene.

In Smith v Mutasa the Court summarised the position at p 94 in this way:

"The Constitution of Zimbabwe is the supreme law of the land. It is true that Parliament is supreme in the legislative field assigned to it by the Constitution, but even then Parliament cannot step outside the bounds of the authority prescribed it by the Constitution."

This comment has obvious application to the present case.

To similar effect are the observations of Barwick CJ in Cormack v Cope (1974) 131 CLR 432 at p.453:

"Whilst it may be true the Court will not interfere in what I would call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law making is not properly carried out."

And later, at p.464:

"Second, it is not the case in Australia, as it is in the United Kingdom, that the Judiciary will restrain itself from interference in any part of the law-making process of the Parliament. Whilst the Court will not interfere in what I have called the intra-mural deliberative activities of the House, including what Isaacs called 'intermediate procedure' and the 'order of events between the House', 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 law making are observed."

While there may be considerable doubt as to the Plaintiff’s claim that he had the right to representation by counsel before the Committee, there seems little doubt that, accepting the facts as pleaded, there was never any constitutional right for Parliament to have dealt with the Plaintiff for an offence which did not exist at the time it was alleged to have been committed, nor to have imposed an indefinite suspension in the absence of any provision in the Constitution permitting such a course.

Notwithstanding the characteristically thorough argument presented on behalf of the Defendants, I am satisfied that this Court has both the jurisdiction and the duty to allow the Plaintiff' s action to proceed. Perhaps I should add that, if the facts are indeed as pleaded, then appropriate steps could well be taken for the Defendants to correct what has happened without the need for the action to proceed further.

The members of the Court being agreed on the result, the Defendants' application to strike out is declined, with costs to the Plaintiff.

QUILLIAM J.A.