IN THE COURT OF APPEAL
THE REPUBLIC OF VANUATU
(Appellant Jurisdiction)

Civil Appeal Case No. 24 of 2004

BETWEEN:

HON. RIALUTH SERGE VOHOR
PRIME MINISTER OF VANUATU (MP)
Appellant

AND:

THE ATTORNEY GENERAL
First Respondent

AND:

THE HON. JOSIAS MOLI
Second Respondent

AND:

HON. SATO KILMAN, MP
HON. MAXIME CARLOT KORMAN, MP
HON. NIPAKE EDWARD NATAPEI, MP
HON. SAN DAN AVOCK, MP
HON. MOSES KAHU, MP
HON. LEINAVAU TASSO, MP
HON. DANSTAN HILTON, MP
HON. MALON HOSPMANDER, MP
HON. PAUL TELUKLUK, MP
HON. ARNOLD PRASAD, MP
HON. PHILIP BOEDORO, MP
HON. ISABELLE DONALD, MP
HON. BOB LOUGHMAN, MP
HON. JOSHUA KALSAKAU, MP
HON. NOEL TAMATA, MP
HON. PETER VUTA, MP
HON. DONNA BROWNY, MP
HON. MASMAS JOSSIS, MP
Third Respondents

Coram: Hon. Justice Oliver A. Saksak
Hon. Justice Patrick I. Treston
Hon. Justice Hamlison Bulu

Counsel: Mr. George F. Boar Agent for Mr. Ronald Warsal for the Appellant
Mr. Kiel Loughman and Mr. Frederick Gilu for the First Respondent
Mr. Bill Bani and Mr. James Tari for the Second Respondent
Mr. Ishmael Kalsakau for the Third Respondents

Date of Hearing: Thursday 9th December 2004
Date of Judgment: Friday 10th December 2004

JUDGMENT

Introduction and Background

The Appeal before us is in relation to the judgment of the Chief Justice in two Civil Cases No. 221 of 2004 and No. 223 of 2004.

Civil Case No. 221 was filed on 3rd December 2004 by 35 Members of Parliament seeking various orders against the Speaker of Parliament. The Attorney General was not a party to that proceeding. The Applicants sought the following orders:-

"1.	That the Speaker of Parliament is served a valid Notice of Motion and Motion of No Confidence against the incumbent Prime Minister of Vanuatu dated the 23rd November 2004.

2.	That the Speaker has on the 24th November 2004 ruled the Notice and Motion of No Confidence complies with the provisions of Article 43 of the Constitution and has validly included the Motion on the list of Agenda for the sitting of the Second Ordinary Session commenced the 30th November 2004 for the sitting of Thursday 2nd December 2004.

3.	The decision of the Speaker to adjourn the proceedings of Parliament on 2nd December 2004 is infringing upon the rights of the Applicants under Article 43(2) of the Constitution.

4.	That the Speaker of Parliament reconvenes Parliament immediately forthwith for Parliament to continue its debate on the Motion of No Confidence listed for debate on 2nd December 2004.

5.	Costs.

6.	Such further and/or other declaration or orders the Court may be pleased to make."

Civil Case No. 223 of 2004 was filed by the Prime Minister (Appellant) on the same date seeking the following orders against the Attorney General:-

"1.	That the Speaker of Parliament was served with an invalid Notice of Motion and Motion of No Confidence against the Applicant, the Prime Minister of Vanuatu dated 23rd November 2004.

2.	That the Speaker of Parliament erred in accepting the Notice of Motion and Motion of No Confidence dated November 23, 2004 to be debated in Parliament on December 2, 2004.

3.	 That amendments to Article 43 of the Constitution of the Republic of Vanuatu has been duly passed by Parliament and be given legal effect.

4.	That the Notice of Motion and Motion of No Confidence dated November 23, 2004 (there) does not comply with the provisions of the amended Article 43 of the Constitution.

5.	That the Speaker of Parliament be restrained hereinafter from putting the Motion of No Confidence on the list of Agenda for the Ordinary Session of Parliament pending the outcome of this application.

6.	The earlier decision of the Speaker of Parliament to allow parliament to debate the Motion and Motion of No Confidence on December 2, 2004 infringed the rights of the Applicant under the amended Article 43 of the Constitution.

7.	Such further and/or other declaration or orders the Court may be pleased to make."

The following are the chronology of events leading up to the two applications: -

1.	On or about 18th October 2004, Parliament passed a Bill for the Constitutional (Fourth Amendment) Act No. 1 of 2004;

2.	The Bill was voted in by a majority 50 out of the 52 Members of Parliament on 18 October 2004;

3.	The Bill was voted for by the Third Respondents after they 	obtained an assurance from the Applicant/Prime Minister that the amendments would not come into effect until they had acquired the support of a national referendum;

4.	On the 23rd November 2004, 18 Members of Parliament served upon the Speaker of Parliament a Notice of Motion and a Motion of no confidence written in English and French languages.

5.	On 24th November 2004 the Speaker of Parliament accepted a Motion of no confidence filed by 35 Members of Parliament against the incumbent Prime Minister in compliance with Article 43 (2) of the Constitution and included the Motion on the list of Agenda for the sitting of Thursday 2 December 2004; 

6.	On the morning of the 2nd December 2004 Parliament met, there was a quorum and Parliament met to continue the business in Parliament's second ordinary session which was commenced on 30th November 2004;

7.	In Parliament 35 Members of Parliament on the opposition 	side and 14 Members of Parliament on the government side were present;

8.	After the opening prayer, the Prime Minister addressed the Speaker disclosing the lack of Members of Parliament on Government side and requested that Parliament adjourned until that afternoon;

9.	The Speaker adjourned Parliament to 4 p.m. in the afternoon of the same day (2 December 2004);

10.	When Parliament resumed at 4 p.m. that afternoon, the Members of Parliament sitting on either side remain unchanged;

11.	The Speaker entered Parliament Chambers and proceeded to read a statement in English;

12.	The effect of what he read was that he was withdrawing his acceptance of the Notice of Motion and that he was going to refer the matter for adjudication by the Judiciary;

13.	The reason being that there may be a discrepancy on the application of Article 43 of the Constitution given that Parliament had very recently passed the Constitutional (Fourth Amendment) Act No. 1 of 2004 ("the Fourth Amendment");

14.	On 12th November 2004, the President of the Republic assented to the Fourth Amendment;

15.	On 15th November 2004, the Attorney General advised the office of the Prime Minister is writing that it is his opinion that the State Law Office should only gazette and bring into force items 1 and 2 of the Fourth Amendment;

16.	On 16th November 2004, the Office of the Prime Minister expressly said that items 3 and 4 of the Fourth Amendment may need to go for a referendum;

17.	On 17th November 2004, the Attorney General, pursuant to the instructions from the Prime Minister’s Office dated 16th November 2004, gazetted the Fourth Amendment;

18.	Upon the gazettal of the Fourth Amendment and pursuant to his advise to the office of the Prime Minister, the Attorney General published in the Official Gazette a public 	notice saying the gazettal of the Act only brings into force items 1 and 2 of the Act. Items 3 and 4 will only come into operation when supported by a national referendum pursuant to Article 86 of the Constitution;

19.	On 3rd December 2004, the 35 applicants/Members of Parliament filed their constitutional application in Civil Case No. 221 of 2004 against the Speaker of Parliament;

20.	On 3rd December 2004 in the afternoon, the applicant/Prime Minister of Vanuatu, filed his constitutional application in Civil Case No. 223 of 2004 against the Attorney General, the Speaker of Parliament and the Third Respondents (18 Members of Parliament).

We set out below the full text of the Fourth Amendment together with its schedule, and the public notice of the Attorney General:-

"THE

CONSTITUTION (FOURTH AMENDMENT) ACT

NO. 1 OF 2004

An Act to amend the Constitution of the Republic of Vanuatu.

Be it enacted by the President and parliament as follows-

1	Amendments

The Constitution of the 'Republic of Vanuatu is amended as set out in the Schedule.

2	Application

The amendments made by item 4 of the Schedule apply in relation to the general election held on the 6th of July 2004 and any subsequent general election.

3	Commencement

This Act commences on the day on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU

1	After Article 17

Insert

VACATION OF SEAT WHERE MEMBER RESIGNS OR CEASES TO SUPPORT POLITICAL PARTY

17A	(1)	This Article applies to a Member of Parliament if the member, having been a candidate of a political party and elected to Parliament resigns from, or ceases to support, the political party.

(2)	If the leader of the political party notifies the Speaker in writing that the member has resigned from, or ceased to support, the political party, the Speaker shall, at the next sitting of Parliament after the Speaker is so informed, make a declaration that the member has resigned from, or ceased to support, the political party.

(3)	If, within a period of 7 days of the declaration by the Speaker, the member does not institute legal proceedings in the Supreme Court to challenge the allegation that he or she has resigned from, or ceased to support, the political party, the member must vacate his or her seat at the end of that period.

(4)	If, within 7 days of the declaration by the Speaker, the member institutes legal proceedings in the Supreme Court to challenge the allegation that he or she has resigned from, or ceased to support, the political party, the member shall not vacate his or her seat unless and until:

(a)	the proceedings are finally determined by a decision upholding the allegation that the member has resigned from, or ceased to support, the political party, being a decision in respect of which the time allowed for an appeal has expired without an appeal being filed; or

(b)	the proceedings are withdrawn.

(5)	This Article shall not apply during the period when Parliament may pass a motion of no confidence in the Prime Minister.

(6)	This Article shall apply notwithstanding the provisions of Article 5 (1) of this Constitution.

(7)	If:

(a)	a member of Parliament having been a candidate of a political party for the general election held on 6 July 2004, ceases to support, or resigns from, the political party before the commencement of this Article; and

(b)	on the commencement of this Article, the member has not resumed support for, or rejoined, the political party;

then, the member must, within 12 months after the commencement of this article, notify the Speaker of Parliament in writing whether he or she is a member of, or supports, another political party, or is an independent member of the parliament supporting the Government or the Opposition or neither.

(8)	If the member does not give the required notice under sub-article (7), then, for the purposes of the application of this article to the member, he or she is deemed immediately after the commencement of this article to have ceased to support, or resigned from, the political party for which he or she stood as a candidate for the general election held on 6 July 2004.

VACATION OF SEAT OF INDEPENDENT MEMBER

17b(1)	This Article applies to a Member of Parliament if the member having been an independent candidate and elected to Parliament, affiliates with the Government or the Opposition, and then ceases to support the Government or the Opposition (whichever applies).

(2)	If the Prime Minister or the Leader of the Opposition, notifies the Speaker in writing that the member is an independent candidate who was elected to Parliament and affiliated with the Government or the Opposition, but has ceased to support the Government or the Opposition, the Speaker shall, at the next sitting of Parliament after the Speaker is so informed, make a declaration under paragraph (3) (a) or (b).

(3)	The declaration by the Speaker is that the member

(a)	is an independent candidate who was elected to Parliament and affiliated with the Government, but has ceased to support the Government; or

(b)	is an independent candidate who was elected to Parliament and affiliated with the Opposition, but has ceased to support the Opposition.

(4)	If, within a period of 7 days of the declaration by the Speaker, the member does not institute legal proceedings in the Supreme Court to challenge the allegation that he or she is an independent candidate who was elected to Parliament and affiliated with the Government or the Opposition, but has ceased to support the Government or the Opposition, the member's seat shall be taken to be vacated at the end of that period.

(5)	If, within a period of 7 days of the declaration by the Speaker, the member does not institute legal proceedings in the Supreme Court to challenge the allegation referred to in sub-article (4), the member's seat shall not be taken to have been vacated unless and until:

(a)	The proceedings are finally determined by a decision upholding the allegation, being a decision in respect of which the time allowed for an appeal has expired without an appeal being filed; or

(b)	The proceedings are withdrawn.

(6)	This Article shall not apply during the period when Parliament may pass a motion of no confidence in the Prime Minister.

(7)	This Article shall apply notwithstanding the provisions of Article 5(1) of this Constitution."

2.	Article 40 (2)

Delete "quarter", substitute "third".

3.	Article 43 (2)

Before "Parliament" (first occurring), substitute "Subject to subarticle (3),".

4.	At the end of Article 43

Add

"(3)	Parliament shall not pass a motion of no confidence in the Prime Minister:

(a)	within 12 months of a general election following a dissolution under subarticle 28 (2) or (3); or

(b)	within 12 months of any other general election; or

(c)	within 12 months of the formation of any Government; or

(d)	within 12 months before the end of the life of a Parliament."

"PUBLIC NOTICE

The gazettal of the Constitution Amendment Act No. 1 of 2004 only brings into force items 1 and 2 of the Act.

Items 3 and 4 will only come into operation when it is supported in a national referendum, as provided for under Article 86 of the Constitution

(Signed & sealed)

Sampson Endehip
Attorney General"

The Hearing

At hearing on 5th December 2004 the learned Chief Justice adjourned the first application, that is Civil Case No. 221 of 2004 pending the determination of the issues raised in the application in Civil Case No. 223 of 2004. It was the view of the learned Chief Justice that the two applications were dealing with the same subject matter by the same parties, and that a decision reached in one application would affect the outcome of the other application.

On 7th December 2004, the learned Chief Justice refused to grant the orders sought by the Appellant in paragraphs 1, 2, 5 and 6. The learned Chief Justice agreed that the amendments to Article 43 of the Constitution was duly passed by Parliament but held that it was subject to a national referendum required under Article 86. That was held in relation to the orders sought in paragraph 3. In relation to paragraph 4, the learned Chief Justice held that the Notice of Motion and Motion of No Confidence dated November 23, 3004 did not comply with the provisions of the amended Article 43. He therefore held that Article 43 (2), as amended was not enforceable.

The obvious effect of those decisions by the learned Chief Justice is that all the Orders sought by the Third Respondents in Civil Case No. 221 of 2004 were granted by the Court together with an order for costs against the Appellant.

The Appellant therefore appealed to this Court. Their grounds of appeal are as follows:-

"1.	The learned Chief Justice erred in law in failing to apply established principles regulating the Court's power in -

(a)	That Article 43 (3) of the Constitution of the Republic of Vanuatu involved an issue relating to "parliamentary system" as stipulated in Article 86 of the said Constitution.

(b)	That Article 43 (3) of the said Constitution shall not have the force of law, as it required the need for a public referendum.

(c)	That the Respondent was empowered to selectively gazette part of the Act of Parliament in Constitution (Fourth Amendment) Act No. 1 of 2004.

(d)	That the Court is empowered to denounce the enforceability of the amended Article 43 (3) of the said Constitution not withstanding it is passed as an Act of Parliament coming retrospectively into effect in July 2004.

(e)	That the Speaker of the House shall be ordered to proceed to debate the Motion of No Confidence made against the Appellant.

2.	Such further or other grounds as may be advanced by the Appellant at the hearing of the appeal.

3.	Any other Orders deemed fit by the Court."

Application by Appellant for an Adjournment

At the commencing of the hearing Mr. Boar acting as agent for Mr. Warsal of counsel for the Appellant made an application for preliminary consideration by the Court. The application is dated 8th December 2004. It seeks the following orders: -

"1.	An order that the Appeal Case No. 24 of 2004 be adjourned until determination and resolution of the Constitutional Application filed therein

1.	As contained in the sworn statement of Hon. Rialuth Serge Vohor and George Boar and filed herein.

2.	Any grounds advanced by counsel."

Mr. Boar addressed us in relation to the difficulties he faced in meeting the dateline for submissions set by Justice Treston during the Review process as follows -

(a)	That he did not act in the initial stages of the proceedings and therefore knew nothing about it all.

(b)	On 7th December 2004 when judgment was delivered, Mr. Ronald Warsal was not present in person.

(c)	His only instruction for Mr. Warsal was to make application for a stay pending the appeal which he has done.

(d)	Due to Mr. Warsal's being sick supported by a medical certificate, the Appellant's interest would not be adequately catered for or considered.

(e)	That there was no urgency in dealing with the appeal.

(f)	That there was a Constitutional Application filed to be heard in the Supreme Court and that the Application should be heard first in time.

The Court questioned Mr. Boar in relation to the time when the appeal was filed. He conceded that it was filed before the written judgment was available. When he was asked by the Court as to how he knew what he was appealing against prior to the written judgment, Mr. Boar replied saying he did not know.

Mr. Loughman strenuously objected to the application for an adjournment. He confirmed that the Appellant lodged an appeal immediately after the oral decision of the Chief Justice was delivered on 7th December. He argued that the Court of Appeal should not be at the convenience of counsel but that the reverse should apply. He argued that there was no new matter raised to warrant an adjournment for the Appellant to instruct overseas counsel to appear and argue his appeal.

Mr. Bani informed the Court that on 7th December he had only been authorized by Mr. Warsal to receive the judgment on his behalf.

Finally Mr. Kalsakau also objected to the application for an adjournment. He argued that it was unethical of counsel to continue to take up a case if he was not equipped sufficiently to do so. He further submitted that Mr. Boar made the same application for adjournment yesterday (Wednesday) and was refused. Doing so again today is like having the same bite at the same cherry, Mr. Kalsakau argued. Further he submitted that in the proceedings in the Supreme Court Mr. Warsal did not apply to have overseas counsel as required by the Legal Practitioner's Act [CAP. 119]. Finally he submitted that the Appellant has not filed submissions in accordance with the directions issued by the Court. He argued that it is difficult to understand how the Appellant could file an appeal before the availability of the written judgment and treat it as urgent, and now argue that he has no time to file submissions and to submit that there is no urgency in hearing the appeal.

In considering these submissions we paid attention to the medical report of Mr. Warsal showing that he is ill with influenza and that he would not be fit until after 10th December. That report was dated 8th December. We note that the Appellant's application is dated 8th December and that it was filed by Mr. Warsal at 3.35p.m. We also note that Mr. Warsal deposed to a sworn statement on 7th December in support of the Appellant's Notice of Appeal in which he confirmed in paragraph 1 that "our firm has carriage of this matter in defending the Defendant". The Firm is Kilu, Daniel & Warsal Lawyers. It is obvious from this that two other lawyers are available at this firm but none of them was instructed or authorized to take over the case in Mr. Warsal's place due to sickness. Why Mr. Bani could have been authorized as agent to receive judgment when other lawyers were available remains to be answered. Due to those circumstances we were not persuaded that we should be sympathetic towards Mr. Boar. On the other hand we were of the view that we should allow some flexibility but that as the matter, we agreed, needed urgent attention and determination, we also agreed that since the appeal did not raise any new matters not argued previously in the Court below, that we would allow only a short adjournment. On that basis therefore we stood the matter down for 2.30p.m. the same day.

Submissions 

When the Court resumed at 2.30p.m. we heard submissions firstly from Mr. Boar. He forcefully endeavoured to convince the Court by reading his written submissions consisting of 23 paragraphs with 8 pages, and an annexure of 3 pages. He did not have those at 9 o'clock in the morning. The Court adjourned at 10 o'clock and resumed at 2.30p.m. How Mr. Boar managed to do those submissions within that time is indicative of the fact that perhaps his submissions in the morning that he knew nothing about the case, and that he being not ready to present the appeal did not reflect the reality behind the case. In any event we commend him for his efforts for preparing those submissions and would summarize his submissions in the following manner -

Issue

The crucial issue in this appeal is whether the Fourth Amendment is enforceable.

Submissions by the Appellant

The Appellant’s case basically is that the learned Chief Justice erred in the interpretation of the amended article 43 of the Constitution as being subject to Article 86 of the Constitution, i.e., it can only be enforced if it is supported by a national referendum. Secondly that the learned Chief Justice also erred in holding that Article 43 of the Constitution is the backbone of the parliamentary system of government and thus caught by Article 86 requiring a national referendum to determine its acceptance.

The Appellant submitted that it is important that the Court must firstly give a definition to the term “parliamentary system” in the context it is used in Article 86 of the Constitution. Such a definition will determine whether the Fourth Amendment is caught by Article 86.

The Appellant went on to say that the findings by the learned Chief Justice were wrong because he did not have the benefit of the minutes of meetings of the Constitutional Committee in 1979 in deliberating which articles should be included in the Constitution for the new country. The Appellant referred the Court to the minutes of meetings of the Constitutional committee. He submitted that those minutes showed that the reference to parliamentary system in the Constitution was only concerned with the fundamental structure of government i.e., the choice between a parliamentary system as compared to a presidential system. That as long as the parliamentary system is not affected for example to introduce two houses within parliament or for that matter take away any responsibility of the Council of Ministers such as to erode the nature of such a parliamentary system this would require the need for a public referendum. 

The Appellant referred the Court to minutes of meetings held on 3 July 1979, 16 July 1979, and 23 April 1979 where different members of the Constitutional steering Committee expressed personal opinions as to what should constitute a parliamentary system for the new nation. In the meeting of 3 July 1979, the Chairman “suggested that it be proposed to the Constitutional Committee that a consensus existed on the following –

(a)	In favour of a parliamentary system with a President combining the functions of the Head of State and Head of government elected by the Assembly. The President would appoint his cabinet.

In the meeting of 16 July 1979 another member of the steering committee, Professor Zorgbibe, was quoted as saying “parliamentary system implied a close collaboration between the executive and the legislature, from his reading of the Minutes of committee meetings he was not certain whether this was what was wanted. A separation of powers was the mark of a Presidential System whereas the answerability of the government before legislature was, he concluded, the mark of a Parliamentary System.”

In the Committee meeting of 23 April 1979 the following was quoted as having being made by V. Boulekone: “…V. Boulekone felt that referenda should only be used when a proposal was being made that would alter the fundamental nature of the state – for example, the change from a Parliamentary to a Presidential System, or from a regional to a federal system.”

The Appellant told the Court that the minutes of those Committee meetings indicated the intention of the framers of the Constitution as to what is the meaning of the term parliamentary system used in Article 86. That if the Court were to give an interpretation and a meaning to parliamentary system, it must be referring to the fundamental nature of parliament. And the mark of a parliamentary system is the answerability of the government before legislature. The Fourth Amendment does not have that effect and therefore does not need to be referred to a national referendum. The amended Article 43 did not amend the fundamental nature of parliament. It did not take away any right of Parliament to remove the Prime Minister. It seeks to regulate for reasons of good order and accountability, when the right should be exercised. Parliament can still remove a Prime Minister from office from the 13th to the 36th month of his tenure. 

The Appellant further submitted that Article 86 of the Constitution amongst other things is concerned with "a bill for the amendment of a provision of the Constitution regarding the status of….the parliament system…". The Fourth Amendment does not affect the status of the parliamentary system. Most importantly, it does not affect its fundamental nature.

Parliament passed the Bill for the Fourth Amendment by a majority of 50 members of Parliament voting in support. That is more than two-third requirement under Article 85 of the Constitution. The Third Respondents support the Fourth Amendment and cannot now be allowed to use the process of law to effectively renegade from their votes. If Parliament had intended the Fourth Amendment to be subject to a national referendum, it would have said so in the Act itself. The fact is it did not say so.

Since Parliament did not say that the Fourth Amendment would be subject to a national referendum, the Attorney General has no authority to veto it.

The Appellant further submitted that the proper finding is to “hold that Article 43(2) having being amended should stay in its operation in the interim pending the outcome of the national referendum as desired by parliament.” 

First Respondents’ Submissions

On the issue whether the Fourth Amendment is enforceable the First Respondent submitted that although the Act provides that it comes into force on the date on which it is published in the gazette, Article 86 is still in operation and requires items 3 and 4 to be supported in a national referendum before it can come into effect. Article 86 of the Constitution provides for three matters, which must go to referendum, one of which is the status of the parliamentary system.

The next question that needs to be addressed and answered is what is the meaning of the “parliamentary system” that is referred to in Article 86. It was submitted that that parliamentary system is the parliamentary system of government adopted by the Republic of Vanuatu on Independence Day. That parliamentary system, if it is to be understood, should not be confined only to the internal functions of the parliament after an election. Rather the parliamentary system must be understood to include the whole process of electing members of parliament right up to the appointment of government ministers. The main features of the parliamentary system of Vanuatu include an election where members of parliament are elected through a general election. The election is through universal franchise. Once in parliament, the members elect the Chief Executive, which is the Prime Minister. The Prime Minister then appoints the Ministers. In this parliamentary system, the Prime Minister could be voted out of office and the process of voting out the Prime Minister is done through a motion called “vote of no confidence”. As far as the vote of no confidence is concerned Vanuatu’s parliamentary system allows for a vote of no confidence motion to be tabled and debated in parliament at any time. The Fourth Amendment purports to put a restriction on the time when a motion of no confidence can be lodged in parliament. That affects the parliamentary system and should be subjected to a national referendum under Article 86 of the Constitution.

The Acts of Parliament Act [CAP. 116] provides that once a bill is passed that requires a referendum the Speaker must certify that the bill was supported by a national referendum when he sends the bill to the President for assent. It was not done in this case.

Second Respondents’ Submissions

The Second Respondent submitted that he would abide by any orders that the Court will make.

Third Respondents’ Submissions

The Third Respondents submitted that they agreed entirely with the judgement of the Supreme Court dated 7th December 2004 in Civil Case no. 223 of 2004. They submitted that items 3 and 4 of the Constitutional Fourth Amendment fall into the definition of parliamentary system and article 86 of the Constitution.

LAW

1.	Relevant Provisions of the Constitution 

“Chapter 1
The State and Sovereignty

Republic of Vanuatu

1.	The Republic of Vanuatu is a sovereign democratic state. 

Constitution Supreme Law 

2.	The Constitution is the supreme law of the Republic of Vanuatu. 

Fundamental Duties 

3.	Every person has the following fundamental duties to himself and his descendants and to others –

(a)	to respect and to act in the spirit of the Constitution; 

Fundamental Duties Non-justiciable but Public Authorities to Encourage Compliance

4.	Except as provided by law, the fundamental duties are non-justiciable. Nevertheless it is the duty of all public authorities to encourage compliance with them so far as lies within their respective powers. 

Parliament 

15. The legislature shall consist of a single chamber, which shall be known as Parliament.

Power to make laws 

16. (1) 	Parliament may make laws for the peace, order and good government of Vanuatu;

(2)	Parliament shall make laws by passing bills introduced either by one or more members or by the Prime Minister or a Minister;

(3)	When a bill has been passed by Parliament it shall be presented to the President of the Republic who shall assent to it within 2 weeks.
… 

Life of Parliament 

28 (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 1 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;

(4) General elections shall be held not earlier than 30 days and not later than 60 days after any dissolution; 

(5) There shall be no dissolution of Parliament within 12 months of the general elections following a dissolution under subarticle (2) or (3). 

Collective Responsibility of Ministers and Votes of No Confidence 

43. (1) The Council of Ministers shall be collectively responsible to Parliament;

Ministers to Remain Members of Parliament 

46. Members of Parliament who are appointed Ministers shall retain their membership of Parliament.

Application to Supreme Court Regarding Infringements of Constitution 

53. (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 jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.

AMENDMENT OF THE CONSTITUTION

Bills for Amendment of Constitution 

84. A bill for an amendment of the Constitution may be introduced either by the Prime Minister or any other Member of Parliament; 

Procedure for Passing Constitutional Amendments 

85. A bill for an amendment of the Constitution shall not come into effect unless it is supported by the votes of no less than two-thirds of all the members of Parliament at a special sitting of Parliament at which three-quarters of the members are present. If there is no such quorum at the first sitting, Parliament may meet and make a decision by the same majority a week later even if only two-thirds of the members are present. 

Amendments Requiring Support of Referendums 

86. A bill for an amendment of a provision of the Constitution regarding the status of Bislama, English and French, the electoral system, or the parliamentary system, passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum.

2. Relevant Legislative Provision 

A. Acts of Parliament [CAP. 116] 

The Assent 

1.	(1) The President shall show that he assents to a Bill by signing on each copy prepared in accordance with section 4 a statement to that effect in the form set out in Schedule 3; 

(2)	A Bill shall become an Act of Parliament on the signing by the President of the assent on the first of the copies. 

Publication 

8.	Every Act shall be published as soon as practicable after the President’s assent with – 

(a)	the omission of the statements contained in the original copies by virtue of the provisions of sections 4 and 5 of this Act;

(b)	a statement of the date on which the President’s assent was signified, and the date of commencement contained in the margin thereof.

Commencement

10. (1)	Subject to the provisions of this section, commencement of an Act shall be such date as is provided in or under the Act, or where no date is so provided, the date of its publication as notified in the Gazette;

(2)	Every Act of Parliament shall come into force immediately on the expiration of the date next preceding its commencement;

(3)	A provision in an Act regulating the coming into force of an Act or any part thereof shall have effect notwithstanding that the part of the Act containing the provision has not come into operation; 

(4)	Where an Act is made with retrospective effect the commencement of the Act shall be the date from which it is given or considered to be given such effect;

(5)	The provisions of subsection (4) shall not apply to an Act until there is notification in the Gazette as to the date of its publication and until date is specified the Act shall be without effect. 

Certification of Special Votes and Referendums 

13. (1)	Where the Constitution requires that a Bill is passed by Parliament after being supported by a special majority with a special quorum present or with such requirements and supported by a national referendum the Speaker , or the Deputy Speaker if the Speaker is absent or otherwise unable to act shall, before the Bill is presented to the President for his assent, certify in whatever form he considers appropriate that the Bill was passed after having been so supported and with such special quorum or with those requirements and the support of a national referendum.

(2)	A copy of the certificate given under subsection (1) signed by the Speaker or the Deputy Speaker, as the case may be, shall be prima facie evidence of the facts stated therein. 

B. INTERPRETATION ACT [CAP. 132]

Acts Subordinate to the Constitution

9.	(1) Every Act shall be read and construed subject to the Constitution and where any provision of an Act conflicts with a provision of the Constitution the latter provision shall prevail;

(2)	Where a provision in an Act conflicts with a provision in the Constitution the Act shall nevertheless be valid to the extent that it is not in conflict with the Constitution. 

FINDINGS

It is clear that Article 86 of the Constitution provides, inter alia, that "a bill for an amendment of a provision of the Constitution regarding.… the parliamentary system, passed by Parliament under Article 85 shall not come into effect unless it had been supported in a national referendum."

Article 43 of the Constitution provides for the collective responsibility of Ministers to Parliament and also for votes of no confidence in the Prime Minister and clearly that relates specifically to the parliamentary system and in the words of the Supreme Court "is the back bone of such a system". We do not agree with the submissions of the Appellant that a referendum is limited to a decision about the fundamental structure of government only, for example a parliamentary system as opposed to a purely presidential system of government. If that had been the case Article 86 would have referred to "the system of government" or the like. The quotations from the minutes of the Constitutional hearing committee of 1979 provides no assistance to the Court as they relate to beliefs or feelings of the members of the committee and we were not referred to the final recommendation of the committee. In any event we are firmly of the view that this Court must rely on the clear and unambiguously language of the Constitution in determining the effect and import of not only the motion but also the legislation.

There is no conclusion other than that the amendment to Article 43 being an amendment of the provision of the Constitution regarding the parliamentary system, could not come into effect until it had been supported in a national referendum.

We agree with the submission of the Attorney General that the parliamentary system was the one adopted by the Republic of Vanuatu on Independence day and that system must include all the processes of electing Members of Parliament right up to the appointment of government ministers. The Members of Parliament elect the Prime Minister who then appoints the Ministers. The Prime Minister can in turn be subject to a vote of no confidence. It is basic to the parliamentary system that the people of this Republic must have a voice in determining when a vote of no confidence in the Prime Minister may be debated. Before the amendment to Article 43, Parliament could pass a motion of no confidence any time on one weeks notice and the restriction of such a constitutional right, of Parliament's clearly one which must be subject to a national referendum.

That was recognized by the Attorney General in his public notice to the Fourth Amendment. Items 3 and 4 of that amendment, as the Supreme Court said, are in conflict with and in breach of Article 86 of the Constitution which under Article 2 is the supreme law of the Republic.

But the matter goes further than that. Paragraphs 1 and 2 of the Fourth Amendment deal with the vacation of a seat where a member resigns or ceases to support a political party and the vacation of a seat of an independent member. We are of the view that those provisions also relate to the parliamentary system and to the basic rights of the people of Vanuatu. As such amendments to the provisions of the Constitution relate to the parliamentary system any changes mean that a bill for such amendments must also be supported in a national referendum because electors can effectively become disenfranchised by a duly elected member resigning from or ceasing to support the political party under whose auspices the member was elected and the member's seat can be taken to be vacated. That also goes to the heart of the parliamentary system and cannot come into effect without a national referendum. (See Sope v Attorney General No. 4 [1988] VUCA 6)

Unfortunately in this case the Bill has not only been passed by Parliament but also assented to by the President on 12 November 2004 and gazetted on 17 November 2004. It has become a valid law despite the Public Notice endorsed in the gazette by the Attorney General.

We are of the unanimous opinion that the whole of the Fourth Amendment is in conflict with Article 86 of the Constitution.

Under Section 9 of the Interpretation Act in these circumstances the Constitution shall prevail and the whole of the Fourth Amendment is declared unconstitutional and therefore it has no effect

CONCLUSION

The Appeal is accordingly dismissed and the findings and orders of the Supreme Court of 7 December 2004 are accordingly upheld.

The consequence of this decision is that the order by consent made on 7 December 2004 is confirmed subject to date and in that respect Parliament is directed to reconvene forthwith at a suitable time to continue its debate on the Motion of No Confidence originally listed for debate on 2 December 2004.

We award costs of the appeal against the Appellant personally in the sum of VT200, 000 each in favour of the First Respondent and VT200, 000 in favour of the Third Respondents.

Dated AT PORT VILA, this 10th day of December 2004

BY THE COURT

Hon. Justice Oliver A. Saksak
Hon Justice Patrick I. Treston
Hon. Justice Hamlison Bulu