IN THE SUPREME COURT OF NAURU

MISC. CAUSE NO. 01/2006

IN THE MATTER OF ARTICLES 11 & 12 OF THE PARLIAMENT OF NAURU (REGISTER OF MEMBER INTEREST) ACT 2004

Mr. Leo Keke for the Petitioners
Mr. Reuben Kun and Mr. Peter MacSporran for the Respondents

DECISION

On 12th August I gave reasons appointing Mr. Eparama Rokoika, the Registrar of the Supreme Court, to conduct, as requested in a document of 10th August, an enquiry pursuant to Section 12 (1) of the Parliament of Nauru (Register of Interests) Act 2004 and to report no later than 1st December.

The Registrar has not held the Inquiry because of the vigorous objection by the Respondents, 9 Members of Parliament against whom specific complaints have been made. The Registrar adjourned the Inquiry to allow the court to consider the objection.

Mr. Reuben Kun, pleader and Mr. Peter MacSporran, Barrister & Solicitor, submitted written argument which they summarized at the end of their submission:-

"1. Section 12 of the Act is ultra vires the Constitution

2. The process established for the inquiry is defective and ultra vires the Act

3. The petition is defective, and has no substance, and ought to be dismissed

4. The petition is without merit, vexatious and an abuse of process."

Mr. Fred Amoa who, as Secretary for justice is, pursuant to Section 12(5), to act as Counsel assisting, submitted a reply defending the holding of the Inquiry and validity of the Act. Finally Mr. Leo Keke, retained late by the Petitioners, made a submission on their behalf. Mr. Keke submitted that only Section 12 sub-sections (7) and (8) are bad: they are severable from the remainder of the section which should stand.

The submission have been most helpful. As well as the written submissions I have heard oral argument from Mr. MacSporran and Mr. Keke. Mr. Amoa has not been on the Island.

In his written submission Mr. Keke acknowledged the two subsections (7) and (8) of Section 12 of the Act are ultra vires. The oral argument, at my suggestion became a consideration, section by section, of the validity of the Act.

With the assistance of Counsel I have concluded that Sections 1-10 of the Act are unobjectionable and valid. Those sections provide for Preliminary Part 1, Code Conduct Part 2 and Disclosure of Members' Interests Part 3.

Part 4; Miscellaneous, consists of Sections 11-13. Section 13 is merely a Regulation making power.

I set out Sections 11 and 12:-

"Failure to comply with Act

11. (1) A wilful contravention by a member of a requirement of this Act is an offence.

(2) Parliament may resolve

(i) To refer a contravention or alleged contravention to a committee of the House which may recommend the imposition of a fine not exceeding $10,000 or that the member be prohibited from entering the House for a period not exceeding 3 years or both; or

(ii) that the Speaker refer a contravention or alleged contravention to the Supreme Court under section 12(1).

Jurisdiction of the Supreme Court

12. (1) The Supreme Court has jurisdiction to hold an inquiry into an allegation that a member has wilfully contravened a provision of this Act.

(2) An inquiry under subsection 12(1) shall be held upon the Court receiving a request from the Speaker, a member, or of a person ordinarily resident in Nauru, that the Court hold an inquiry into a complaint that a member has wilfully contravened a provision of this Act.

(3) The Court may determine that an inquiry into a complaint is not necessary and order that a member comply with a provision of this Act.

(4) A complaint made under subsection 12(2) shall be delivered to the Registrar of the Supreme Court and need not be in any particular form but must state -

(a) that it is made under the Act;

(b) the name of the member concerned;

(c) the nature of the complaint;

(d) the matters of fact relied upon in sufficient detail that they are capable of being ascertained and investigated so as to determine the truth of the matters complained of;

(e) the name of the complainant (but so that the name of the complainant shall not be disclosed by any person other than by an order of the Supreme Court that the disclosure is in the public interest).

(5) Upon receipt of a complaint under subsection 12(2) the Registrar shall request the Secretary for Justice to act as counsel assisting the Court to assist with the inquiry, arrange for the calling of witnesses and documents and, where necessary, for the examination and cross-examination of witnesses.

(6) The Chief Justice may make such rules of Court as he considers necessary or appropriate for the purposes of this section.

(7) If the Supreme Court is satisfied that a member has wilfully contravened a provision of this Act it may:

(a) impose a penalty on the member of not more than $10,000; and

(b) if it is satisfied that the wilful contravention is serious and material - impose a term of imprisonment on the member of not more than 5 years or place the member on a bond to be of good behaviour for a period not exceeding 5 years.

(8) The question of whether an act or omission was wilful shall be determined on the balance of probabilities.

(9) A contravention of this Act that is serious and material includes, but is not limited to, one in which the member has contravened sections 4(b) or (c), or section 6(2) (f).

(10) The Supreme Court may, if it is satisfied that a complaint from a person who is ordinarily resident in Nauru, was without merit, vexatious or malicious, order the complainant to pay the legal costs of hearing and determining the complaint and may determine the quantum of costs payable in lieu of their being taxed."

These sections should be read in the light of several Articles in Parts I, II and IV of the Constitution of Nauru.

Part I. "The Republic of Nauru," Article 2:-

"2. (1) This Constitution is the supreme law of Nauru.

(2) A law inconsistent with this Constitution is, to the extent of the inconsistency, void."

Part II. "Protection of Fundamental Rights and Freedoms," Article 10 (in relevant part):-

"10(1) No person shall be convicted of an offence which is not defined by law.

(2) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court.

(3) A person charged with an offence -

(a) shall be presumed innocent until proved guilty according to law.

(8) No person shall be compelled in the trial of an offence to be a witness against himself."

Part IV "The Legislature." Article 31 and 32.

"31 No person is qualified to be elected a member of Parliament if he -

(a) is an undischarged bankrupt or insolvent who has been declared bankrupt or insolvent according to law;

(b) is a person certified to be insane or otherwise adjudged according to law to be mentally disordered;

(c) has been convicted and is under sentence or is subject to be sentenced for an offence punishable according to law by death or by imprisonment for one year or longer;

(d) does not possess such qualifications relating to residence or domicile in Nauru as are prescribed by law; or

(e) holds an office of profit in the service of Nauru or of a statutory corporation, being an office prescribed by law for the purposes of this paragraph.

32. (1) A member of Parliament vacates his seat -

(a) upon the dissolution of Parliament next after his election;

(b) upon becoming disqualified under Article 31 to be elected a member of Parliament;

(c) upon resigning his seat by writing under his hand delivered, in the case of a member other than the Speaker, to the Speaker and, in the case of the Speaker, to the Clerk of Parliament;

(d) if he is absent without leave of Parliament on every day on which a meeting of Parliament is held during a period of two months; or

(e) upon ceasing to be a Nauruan citizen."

In the light of these Articles, first, I consider Section 11 of the Act.

Subsection (1) if it stood alone, is not objectionable. The penalty provided in subsection (2) (i), very severe. The maximum fine is heavy and the suspension of a Member for a period not exceeding 3 years is tantamount to the power of expulsion of the Member.

Article 41 clause (7):-

"Parliament shall, unless sooner dissolved, continue for a period of three years from and including the date of the first sitting of Parliament after any dissolution and shall then stand dissolved."

A Member suspended under section 11(2), even soon after a general election could be effectively excluded for the whole of the Parliament. Articles 31 and 32 provide for disqualification from membership and vacation of seats. They form a code. Parliament should not go outside the provisions of those Articles to find another way of getting rid of a Member. Subsection (2) (i) is invalid.

Next, I consider Section 12 of the Act.

In his written submission Mr. Keke conceded that subsections (7) and (8) should be struck down.

Subsection (7) is contrary to Article 10(2) of the Constitution. It does not provide for a fair hearing within a reasonable time by an independent and impartial court. Subsection (7) provides that the Supreme Court, acting not as a court of law but as an enquirer, is to be satisfied of a wilful contravention of a provision of the Act.

Subsection (8) is directly contrary to Article 10(3) (a), "a person charged with an offence - shall be presumed innocent until proved guilty according to law." Subsection (8) provides for a finding on the balance of probabilities.

Subsections (7) and (8) cannot stand.

May those subsections be severed from the other subsections of section 12 so that the other subsections stand? This raises the question of severability of sections or subsections in a statute.

F.A.R. Bennion ("Statutory interpretation" Second edition) discusses severance @ pp 164-166. He cites Ormrod LJ in Dunkley v Evans (1981) 1 W.L.R. 1522 who in turn cited (@ pp 1524-1525) the Victorian case of Olsen v the City of Camberwell Corpn (1926 V.R. 58 @ pp 68-69 per Cussen J):-

"The question of severability in such cases as this is often a matter of difficulty. It is impossible, from the nature of the difficulty, to do anything more at the outset than to state a rule in wide, general terms, and in the application of such a rule to particular cases there is often room for difference of opinion."

The rule extracted by Bennion (@ p 165) from Olsen's case:-

"severance is only impossible where 'the enactment with the invalid portion omitted is radically or substantially different a law...as to warrant belief that if all could not be carried into effect, the legislative body would not have enacted the remainder independently'."

It is always undesirable to sever subsections of a section and leave the rest. The whole section should be struck down. The more so, where the truncated section would not make much sense. Looking at Section 12 of the Act, without subsections (7) and (8), the Court would make an enquiry but for what purpose and with what consequences? There would be neither purpose nor consequences.

Section 12 in its entirety should be struck down.

I return to section 11. I have already found Section 11(2) (i) objectionable and invalid: subsection (2) (ii) becomes meaningless without section 12.

That leaves only section 11(1) which makes a contravention of the Act an offence. To what effect? Without section 11(2) and section 12 to no effect.

The whole of section 11 should be struck down.

Sections 11 and 12 are struck down. May they be severed from the rest of the Act? Applying the test I have set out the answer is "Yes." The rest of the Act may stand.

This does mean, however, that the Inquiry sought by the Petitioners may not proceed. Having, with the benefit of argument by Counsel had second thoughts, I recall the Order in my Decision of 12th August appointing the Registrar to hold an Inquiry.

It will now be for Parliament to decide, if it wishes, what other the provisions, if any, to enact in place of sections 11 and 12. The Court is not able to rewrite the Act but it does suggest that any Inquiry to be undertaken either by the Court or by some person or other body should be merely to report to Parliament, not to make findings of guilt or otherwise nor to impose penalty. Those are matters for a Court, properly constituted, after a fair trial of a person charged with a specific offence as provided under the Criminal Procedure Act.

Finally, I emphasise that this Decision is the result of the application of principles of law. It does not touch on the merits or otherwise if the complaints which the Petitioners have made.

Messrs Kun and MacSporran in their written submissions said that the Respondents had moved the Registrar "to refer for the opinion and advise of the Supreme Court certain matters". Article 54 gives the Court jurisdiction to do that but the Registrar did not state a case he simply listed the cause for hearing. That has been sufficient to lead to this decision.

I shall hear counsel as to the Orders I should make.

THE HON. ROBIN MILLHOUSE QC.,
CHIEF JUSTICE
20th DECEMBER 2006