IN THE SUPREME COURT OF NAURU

Constitutional Reference No. 1 of 2003

IN THE MATTER
of Article 55 of the Constitution

AND

IN THE MATTER
of a Resolution pursuant to Article 24(1) of the Constitution

OPINION

1. The Supreme Court has received from President Harris, as Chairman of Cabinet on 8 January 2003 a Constitutional Reference hereafter referred to as 'the Reference' pursuant to Article 55 of the Constitution. The terms of the Reference as finally settled by the Cabinet are attached to his Opinion (Attachment 'A').

BACKGROUND

2. The Reference sought answers to some six questions relating to a motion introduced by a member for Ubenide (Mr. David Adeang) on Wednesday, January 8 2003, to which he had given notice (Item 7(b)) in the House on Tuesday 7 January 2003. His motion was seconded by a member for Meneng (Mr. Jeremiah).

3. It was noted by the Court that under Item 5 in the Votes and Proceedings for Tuesday 7 January 2003, Mr. Adeang had also given notice that at the next sitting of Parliament he would move the following motion - 'That pursuant to Article 24 of the Constitution, President Rene Harris and Minister be removed from office.' On Wednesday, 8 January 2003, this motion was deferred to the next sitting (see Item 9). Upon the deferral, Mr. Adeang proceeded (Item 10) to move the other motion to which he had given notice the previous day (Item 7(b)).

4. The motion itself and the ensuing record of the Votes and Proceedings of the Fourteenth Parliament, Eleventh Sitting of the Twentieth meeting, Wednesday, 8 January 2003 should be recorded, in full. They are attached to this Opinion (Attachment 'B'), along with the other Notice Papers and Votes and Proceedings relevant to the period, and certified by the Clerk of Parliament as a true copy.

5. The first matter that is addressed is what the Court is entitled to look at to establish facts. The Court may call for the relevant Votes and Proceedings of the Parliament and is bound by the facts disclosed therein. A Court will not pursue further matters relating to what Barwick CJ stated in Cormack v Cope (1974) 131 CLR 432 at 454 be 'the intra-mural deliberative activities of the House'. However, Barwick CJ did here distinguish the position between Australia and that operating in the United Kingdom, in that in Australia 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 lawmaking are observed.' Similarly, in Nauru, with a written Constitution, the Court may be called upon to adjudicate a matter in the Parliament that is in breach of the Constitution. This is a delicate matter and Courts, with written Constitutions, have had to grapple with the many problems associated with such a course. Problems, which go to the extent of intervention and the appropriate time or such intervention, have weighed heavily with such other Courts from time to time. Illustrations of this within this South Pacific area are contained in the judgment of Donne CJ and that of Dillon J in L.G. Harris & Ors v The Speaker and Ors, Civil Action No. 13/97. On this point, the Court finds itself in agreement with the submission to the Court by S.E.K. Hulme QC, that there should be a 'mutual restraint between Parliament and the Courts' though later in his submission, he agrees that 'there can be cases where giving proper operation to a particular provision of the Constitution will involve reference happened in Parliament', though he states 'they (the Courts) will minimise the ambit of the reference in cases where some reference is necessary'.

6. This Court can see no justifications, so far as the proceedings of Parliament are concerned, of accepting as evidence of some fact pertinent to the matter in hand anything other than the officially recorded Votes and Proceedings of the Parliament signed by the Clerk of Parliament. Such Votes and Proceedings were accepted in evidence by the Court in Civil Action No. 13/97 as conclusive. (also see Section 23 Parliament Powers and Immunities Act 1976.)

7. The relevant facts disclosed by the Votes and Proceedings of Wednesday 8 January 2003 would enable the Court to establish the following-

1. It is to be assumed that a quorum was present at the commencement of the sitting on 8 January 2003 at 10:00 am and after prayers were read. Mehra, 'Practice and Procedure of the Parliament of Nauru at p.105 records thereafter the practice of the House.

'Once the sitting of the House has commenced and Prayers are read, if there is a quorum of members present, the Chair presumes that a quorum of members is present all they time unless his attention is drawn by any member to the lack of a quorum. Lack of presence of a quorum may also come to the Speaker's notice if on recording votes during a division, it is found that the total number of members present in the House and voting is less than nine.'

2. On Wednesday 8 January 2003, three divisions were called for and recorded in the Votes and Proceedings, Item 8, Item 12, and Item 13. In each instance, there were recorded 11 members voting which were two greater than the quorum.

3. There was no record of a member drawing the attention of the Chair to a lack of a quorum.

4. On Item 15, the Chair called for nominations for the office of President. Mr. Dowiyogo was nominated and seconded, he then accepted the nomination and as there was no other nomination, Mr. Dowiyogo was duly elected President, without the need to record a vote.

5. The motion of Mr. Adeang that this House resolves that it has want of confidence in the Honourable Rene Harris and the Honourable Aloysius Amwano and that they be censured by this House' was debated and put to vote and passed. Upon a division, there were eight supporting votes for the motion and three against.

6. Upon the declaration of the division, the Speaker ruled from the Chair (Item 14) as follows: -

'Honourable members, the results of the votes is (sic) that Government has lost the confidence of the House and stands defeated after losing its parliamentary mandate, and is effectively removed from office.

I will now adjourn the House until the bell rings, after which I shall call for nominations for President and conduct election of the new President.'

7. Upon election, the newly elected President moved that Parliament adjourn until 10 January 2003 at 10:00 am. This was seconded and passed. The House adjourned at 3:50 pm on 8 January 2003.

8. It was recorded by the Clerk of Parliament that one member, Mr. Audoa had been granted leave of absence but that five other members had not been present at any time during the sitting. The five members recorded were President Harris and the other four members of his Cabinet.

Some material matters therefore disclosed by the above are: -

A. There is no disclosed evidence acceptable to the Court that would indicate that a quorum was not present for the sittings on Wednesday, 8 January 2003.

B. The vote taken on the Adeang motion was passed by eight votes to three.

C. No member of the Harris Cabinet was present at any time during the sitting nor had sought leave of absence.

THE CONSTITUTIONAL REFERENCE

8. The Court shall answer seriatim the questions raised in due course, but it is clear that the crucial question surrounds Article 24(1) of the Constitution, and what interpretation should be attributed to it.

9. Article 24(1) reads as follows: -

'Where Parliament on a resolution approved by at least one-half of the total number of members of Parliament resolves that the President and Ministers be removed from office on the grounds that it has no confidence in the Cabinet, an election of a President shall be held.'

10. Article 46(1) states the normal rule that a question before Parliament shall be decided by a majority of the votes of members present and voting - unless otherwise provided in the Constitution.

11. Article 24(l) does otherwise provide. On a vote of no confidence, it must be approved by at least one-half of the total number of members of Parliament. With eighteen members that means such a vote requires nine in support excluding the Speaker who has no vote unless on the question the votes are equally divided when he is able to exercise a casting vote (see Article 46(2)).

12. Similarly, the amendment provision (Article 84) also otherwise provides where in Article 84(2) (b) a proposed law must be approved by not less than two-thirds of the total number of members of Parliament. In that instance, it would require in an 18 member House an approval vote of twelve members excluding the Speaker.

13. The Votes and Proceedings for 8 January 2003 record that on a division there were eight members supporting the motion, the subject of this controversy, and three members against.

14. There can be no doubt that Article 24(1) is a mandatory and not a directory provision. Article 46(1) provides the normal manner of voting unless otherwise provided by the Constitution. The Constitution clearly had in mind, for example, that the expulsion of a government from office, and a proposed law to amend the Constitution were two cases when something more was required than a simple majority of those members present and voting.

15. The power in the Speaker of Parliament to rule from the Chair that the President and Ministers be removed from office on the grounds that Parliament has no confidence in the Cabinet and conduct an election of a President is clearly contingent upon the existence of a vote in conformity with Article 24(1) as expressed in the Constitution. It was, therefore, an erroneous ruling of the Speaker on the basis that he was applying Article 24(1) of the Constitution.

16. There is some argument that the Adeang motion as recorded in the Votes and Proceedings for 8 January 2003 was not in a form to conform with seeking a no confidence motion against the Government but was a mere censure against two ministers, the President and the Minister for Finance. I find this difficult. If it were a mere censure and not argued as a no confidence vote on the Cabinet but simply on two ministers, then there does not appear to be an explanation for the ruling of the Speaker whose words are formed loosely with Article 24(1) in mind. Standing Order 97 provides the internal procedure in the Parliament for a No Confidence motion under Article 24(1). Mehra at page 91 also states that the Standing Order operates as the procedure where there is motion of censure against a Minister. It, therefore, may have a dual role. However, whatever the situation the Standing Order cannot have any legal effect upon the constitutional provision, Article 24.

17. In any event, how else could the Speaker have called for an election for President if it had not been achieved through Article 24(1)?

18. On this point, one must turn to Article 16 of the Constitution, which reads: -

"16. - (1) There shall be a President of Nauru, who shall be elected by Parliament.

(2) A person is not qualified to be elected President unless he is a Member of Parliament.

(3) The Speaker and the Deputy Speaker are not qualified to be elected President.

(4) The President holds office until the election of another person as President.

(5) Parliament shall elect a President -

(a) wherever the office of President is vacant;

(b) at the first sitting of Parliament next following its dissolution; and

(c) whenever-

(i) the President tenders the resignation of his office by writing under his hand delivered to the Speaker;

(ii) a resolution for the removal from office of the President and Ministers is approved under Article 24; or

(iii) the President ceases to be a Member of Parliament otherwise than by reason only of its dissolution."

19. Article 16 clearly indicates that Parliament can only remove a President and Ministers from office by a resolution approved pursuant to Article 24. There is no other way for Parliament to remove a Cabinet. Article 32 provides other grounds but these are, as it were, self-destructive, and not dependent upon the will of Parliament.

20. This does not mean, of course, that there is not reason for the exercise of the parliamentary convention that when it is clear that a government has lost the ability to control the Parliament, the President should resign or seek a dissolution. In fact, of course, there are a number of such examples in the history of the Nauru Parliament where a President has resigned on defeat of an important motion - usually a money bill. Such examples are quoted in Mehra - Practice and Procedure of the Parliament of Nauru at page 75. But the Court does not propose to expound on the niceties of parliamentary conventions. The Hulme submissions put some emphasis on parliamentary practice and convention where a government may resign upon defeat in the House where it puts to the House that defeat of a measure will be a test of confidence. The matter in hand is not a question of resignation it is simply a no confidence motion whose object is the removal of the government from office. The Constitution is quite specific as to the ambit of this provision both in Article 24 itself and Article 16. Furthermore, the smallness of the House in terms of members and the shifting sands of Nauruan political groupings give credence to the wisdom of such a provision. It is sufficient, for the question sought in the Reference merely to state that the Constitution provides but one-way Article 24 in which Parliament can remove a President other than by a vote following a dissolution of Parliament. That does not mean that political pressure may not be applied in the give and take of political life to encourage a resignation, but a removal of Cabinet can only be achieved other than resignation through an Article 24 procedure.

21. On the basis that the resolution introduced by the Adeang motion did not carry sufficient votes in terms of Article 24(1) and that the subsequent ruling of the Speaker was flawed what was the status of the election of a President and his present status as elected?

22. Such a question may present some element of conflict between the Parliament, Executive and Judiciary. Whilst the Supreme Court is commonly and not improperly stated as the 'guardian' of the Constitution, it must exercise care in intervening in the affairs of the Parliament. At the same time, it has a significant role to play. In particular it has tasks through Articles 54 and 55. Above all, Article 2 establishes the Constitution of Nauru as the supreme law of Nauru. In that sense, the Parliament, the Executive and the Judiciary are all subject to its obligations and directions. A clear illustration of proper intervention would be a situation where a proposed law was passed for amending the Constitution where less than two thirds of the total members of Parliament voted for such a proposed law. Depending at what point the matter was brought before the Court and the locus standi of the applicant an injunctive process may issue upon the invalid procedure being evidenced before the Court. This matter was argued at length in Victoria v The Commonwealth (the PMA Case) (1975) 134 CLR 81 whether the illegality of subsequent acts to an incorrect procedure spelt out in the Constitution produced a justiciable issue. The majority of the High Court of Australia in that case opted for the view that the Court had the jurisdiction to make a declaration of validity or of invalidity as the case may be (see Barwick CJ at p.120).

23. In this instance, the ruling of the Speaker was not in accordance with the law of the Constitution but was not in itself void. The Court is not here concerned with the ruling but whether what followed namely the election of the President that took place when only eight votes were mustered in support of a no confidence motion. The vote on the Adeang motion did not entitle there to be an election for a President as the vote in favour did not amount to at least one-half of the total number of members of the Parliament.

24. For the purposes of this reference, a clear opinion is given on the major issue. In the end, this now becomes a matter for Parliament. It is up to Parliament to correct itself once the constitutional opinion of the Supreme Court has been given under Article 55.

25. Two further matters may be alluded to. First, the Harris Cabinet did not attend the sitting on Wednesday 8th January nor were any members of the Cabinet granted leave of absence on that day. To some degree, what subsequently took place may have been materially prevented by the presence of the Government members. Under the Westminster system, it is the responsibility of the government to retain control not only of legislation but also of proceedings in the House. In other places, lack of such control brings about a change of government or a dissolution. In Nauru, there are limited means to achieve this, however, a constitutional stalemate can be avoided if the Government manages to retain control of its Parliament. Non attendance does not enhance control.

26.. Secondly, so far as the powers, privileges and immunities of Parliament and members are concerned, these are subject to such powers, privileges, or immunities as are inconsistent with or repugnant to the Constitution (See Section 21). In other words, where there are mandatory provisions within the Constitution it is open in any properly maintained suit for the Court to accept jurisdiction and make appropriate declarations or orders.

ANSWERS TO QUESTIONS CONTAINED IN THE REFERENCE:

27. I answer the questions contained in the Reference as follows: -

Under Article 55 the Cabinet may seek from the Court its opinion upon any question concerning the interpretation or effect of any provision of the Constitution which has arisen or appears to the Cabinet likely to arise. Accordingly, the Court has addressed the questions in the light of this Article. It is the view of the Court that the constitutional difficulties earlier described have occurred through the interpretation of Article 24(1) and could not have presently arisen otherwise.

A. Given that there are l8 members of the Parliament and that 9 members represents one half of the membership of the House, was the resolution passed by a majority of 8 members a resolution such that as a result of its passage there must be an election for President?

Answer: No

B. If so, upon what basis does the resolution have such effect? 

Answer: not required to answer given the answer to A above.

C. If not, is there any other manner by which the President may be removed from office and a new President appointed?

Answer: Not required to answer as not relevant to a question which has arisen or appears to the Cabinet likely to arise.

D. If so, what is that manner and what is its basis?

Answer: Not required to answer. See answer to C above.

E. Was the ruling of the Speaker that the office of the President was, as a result of the vote, vacated sufficient to override the Constitution and allow the subsequent election of a President?

Answer: A ruling by the Speaker cannot override the mandatory requirements of the Constitution. The Votes and Proceedings disclose that the resolution that was passed did not have the required majority for the removal of the President and Cabinet from office under Article 24(1).

F. What, if any, is the status of the election of a member to be President, and of the person so elected?

Answer: Not required to answer in the light of the answers to A and E. This should be left to the Parliament to regularise through its own procedures.

28. Before concluding, I would like to thank those members of Parliament either by themselves or with the assistance of counsel who sent written submissions or contributed to the oral submissions. The quality of the submissions required at very short notice due to the exigencies of the moment was of a high standard and was of great assistance to the Court. In what has been a contentious political atmosphere, the Court congratulates all who made submissions calmly and adroitly to the Court. The Court trusts that the reception of the opinion will materially assist a proper legal and constitutional answer to the situation thus demonstrating again the strong adherence of Nauruan society to the rule of law and a high level of parliamentary practice. The list of submissions is recorded in Attachment C.

Barry Connell
Chief Justice
Date 17 January 2003
Attachments: A B and C.