IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appeal Jurisdiction)

Criminal Appeal Case No. 05 of 2004

BETWEEN:

THE HONOURABLE RIALUTH SERGE VOHOR,
Prime Minister of the Republic of Vanuatu
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Hon. Vincent Lunabek, Chief Justice
Hon. Daniel Fatiaki, J
Hon. Patrick Treston, J
Hon. Oliver Saksak, J

Counsel: Mr. Ronald Warsal and Mr. Willie Daniel for the Appellant
Mr. John William Timakata and Mr. Abel Kalmet for the Public Prosecutor
Mr. Sampson Endehipa Attorney General as amicus luriae

Date of Hearing: 24 September 2004
Date of Oral Decision: 24 September 2004
Date of Reasons for Decision 29 October 2004

REASONS FOR ORAL DECISION OF THE COURT

DECISION

On 24 September 2004 this Court delivered the following oral decision:-

"1.	Appeal is allowed on the process, on the basis of a breach of the appellant’s constitutional right to protection of the law. All Orders of Bulu, J in Criminal Case No. 33 of 2004 are accordingly quashed including the Bail Conditions imposed. However, the Stay Order dated 17 September 2004 which suspended further proceedings in this matter is made permanent.

2.	The matter will not be referred back to the Supreme Court because-

(a)	We have grave doubts that what was said was a contempt of the Court although we are unanimous that it constituted personal abuse of the Chief Justice;

(b)	Even if we were wrong on our assessment of whether the words said are contempt of the Court, nevertheless, we are unanimously of the view that the statement of the Prime Minster in the circumstances, are fully protected by Article 27(1) of the Constitution.

3.	Costs are awarded to the appellant to be paid by the respondent to be agreed or taxed".

We now give our reasons.

BACKGROUND AND FACTS

On 6 July 2004 Vanuatu had its national Parliamentary elections. Thereafter the appellant, the Honourable Rialuth Serge Vohor, was sworn in as Prime Minister. A short time later, on 4 August 2004, 27 Members of Parliament requested the Speaker to summon Parliament to meet in an Extraordinary Session to hear a motion of 'no confidence' against the Appellant. The Speaker at first refused to accept the documents and later delayed summonsing Parliament. The 27 Members applied to the Supreme Court by way of constitutional application for an order directed to the Speaker requiring him to summon Parliament.

On 19 August the Supreme Court ruled that the request was valid and ordered the Speaker to summon Parliament to debate the motion of 'no confidence'. This was fixed to take place on 26 August 2004.

Meanwhile the Honourable Ham Lini, who was Leader of the Opposition and mover of the motion, had crossed the floor of the House to the Appellant's side and become Deputy Prime Minister. Upon the resumption of Parliament, Mr. Lini applied to withdraw the motion and the Speaker granted that application without any debate.

The remaining 26 applicants returned to the Supreme Court and on 27 August 2004, the Learned Chief Justice in Civil Case No. 154 of 2004 ordered inter alia as follows:-

"The Clerk of the Parliament be directed to immediately after the issuance of these orders to summon Parliament to meet on the said Wednesday 1st September 2004 at half past eight o'clock in the morning for Parliament to continue and complete its debate on the said Motion of no confidence in the Prime Minister"

As a result of that order Parliament was duly summoned on Wednesday 1 September 2004 to debate the Motion of 'no confidence'. The proceedings were broadcast live on National television.

During the debate on the floor of the Parliament, the Appellant, the Prime Minister, said, inter alia, the following: -

"But the way we are heading now, we are heading that way. Because what I think is that the Judgment which came out reflects some of us Ni-Vanuatu who are black but have a white heart. Their thinking reflects foreign influence in this country. And that is why I am taking the Chief Justice's decision along this line. And that we must be worried about. We must be worried about him because these people control everything in our country.

Foreign influence is big and we must be worried about this. What the Chief Justice did many people in Vanuatu do not agree with. Like the Minister of Foreign Affairs said that we put a motion where but the Chief Justice said you are right, but we are saying you are not right, yet he said you are right. That is why I say he is a Whiteman's child. He has caused this country to go crazy….

In this House you can say anything which you otherwise could not said when outside. That is why I am making this speech inside this place, Speaker once you start the voting we in the Government as you well know will vote against."

Ten (10) days later on Saturday 11 September 2004 the Public Prosecutor took the unusual step of filing a document in the Supreme Court at Port Vila. The full text of that document is as follows: -

"CR. 227/2003

IN THE MAGISTRATES COURT OF
THE REPUBLIC OF VANUATU

INFORMATION
(Section 152 CPC)

This 10th day of October 2004, the Court is hereby informed by the Public Prosecutor that SERGE VOHOR is charges with the following offences:

COUNT 1		STATEMENT BLONG RONG

CONTEMPT OF COURT - Agensem section 32 of the JUDICIAL SERVICES AND COURTS ACT 54 OF 2000.

PARTICULARS BLONG RONG

SERGE VOHOR, samtaem long September 1, 2004 long Parliament Haos yu bin mekem some statement agensem Chief Justice Vincent Lunabek wei i amount long contempt of court olsem "hemi stap ack follem foreign influence mo hemi wan black man wetem heart blong waitmen mo se hemi pikinini blong wait man" ol toktok ia yu bin sakem follem decision wei Chief Justice ibin mekem long Constitutional case No: 154/2004.

PORT VILA, long dei 10th of October 2004

(Sign)
--------------------
for PUBLIC PROSECUTOR"

Significantly that document appears to have been headed up with a Magistrates' Court number and is in fact intituled in the Magistrates Court of the Republic of Vanuatu. The date referred to twice in the "information" is 10 October 2004 which is clearly an error. Equally significantly the quote detailing the alleged "contempt" was an amalgam and summary of parts of two of the paragraphs of the appellant's speech quoted above without any acknowledgment that the words complained of were part of a larger speech and thus the words were clearly taken out of context in the information.

At about 3.45pm on 11 September 2004, an officer of the Public Prosecutor's office in the company of the Police Commissioner went to the private home of the Attorney General to serve him with Court documents which included copies of the information and an application for a committal order against the Appellant together with a sworn statement of urgency and another sworn statement concerning a video tape of the debate in question. 

The Attorney General whose Sabbath it was, advised that he could not accept the documents because the Appellant was overseas but he was told by the Commissioner of Police that he was required by Justice Bulu to attend Court at 4pm for the matter to be heard. The Attorney General arrived at Court at approximately 4.10pm. 

The deputy Public Prosecutor made submissions to the Court and during the submissions, the Attorney General submitted that as the matter was against the appellant in his personal capacity and as the appellant was overseas and as the Attorney General himself had been served belatedly, the matter should be adjourned to afford the appellant the right to be heard. He also submitted that as the appellant was not personally present the viewing of the videotape would be highly prejudicial to the appellant.

Despite the objection, the videotape was viewed by the Court. The learned judge who did not have the benefit of a transcript of the video then made the following findings and orders: -

"(a) there is an urgency to deal with this matter;

(Given the ten days that had elapsed since the appellant's allegedly contemptible remarks were uttered we have doubts about this finding of urgency)

(b) the statements made by Honourable Rialuth Serge Vohor, the Prime Minister of Vanuatu, during debate in Parliament on September 1, 2004 relating to the Court decision requiring Parliament to sit and debate the motion of no-confidence in the Prime Minister, constitutes the offence of contempt,

(c) Article 27 (1) of the Constitution does not protect the Honourable Rialuth Serge Vohor, the Prime Minister of the Republic of Vanuatu, from prosecution,

the Court makes the following orders: -

1.	The Respondent, the Honourable Rialuth Serge Vohor, is to be arrested by members of the Police Force of the Republic of immediately upon his arrival at the Bauerfield International Airport from an International visit and is to be brought before the Supreme Court to show cause why he should not be committed for Contempt.

2.	Costs of this application in favour of the Public Prosecutor."

It was during the course of submissions in this Court that the Deputy
Public Prosecutor acknowledged that he knew at all times that the Appellant had not been personally served with any of the Court papers and that the Appellant was overseas at the relevant time.

On the next day, Sunday 12 September 2004, the Court once more convened when Mr. Daniel and Mr. Warsal together with the Attorney General appeared for the Appellant and the order of 11 September 2004 was varied by changing the order to arrest the Appellant upon his arrival at Bauerfield International Airport, to one requiring the appellant to appear before the Supreme Court on 17 September 2004 at 9am to show cause why he should not be committed for contempt.

On 16 September 2004 the Appellant filed a Notice of Appeal and the matter was again considered by the Supreme Court on Friday 17 September 2004 when the trial judge overruled the Public Prosecutor's objection and granted an application to stay the proceedings on the following terms: -

"(1)	This Court has jurisdiction to decide whether to stay the current proceedings to allow the appeal to be determined. The jurisdiction is found in Section 2 (2) of the Criminal Procedure Code Act.

(2)	Adequate opportunity must be given to the defendant to present his defence.

(This particular condition is significant in our view in both its tenor and implication.)

(3)	Substantial justice of the matter requires that the current proceedings in which the defendant is required to show cause why he should not be committed to prison for contempt be stayed until the appeal is determined.

(4)	The application to stay the proceedings in Criminal Case No. 33 of 2004 is granted"

At the same time the Learned Judge released the Appellant on bail on the following terms: -

"Upon hearing Mr. John William Timakata, Deputy Public Prosecutor for the Public Prosecutor, Mr. Willie Daniel, Mr. Ronald Warsal and the Attorney General for the Defendant, it is ordered that the Defendant is released on Bail on the following conditions:

1.	Defendant, his servants and or agents shall not interfere directly and or indirectly in any way with the Office of the Public Prosecutor or Police Officers utilized by the Public Prosecutions Office in respect to Criminal Case No. 33 of 2004.

2.	Defendant, his servants and or agents including the Council of Ministers, any Minister, Public Service Commission, Judicial Services Commission and the Police Service Commission shall not interfere directly or indirectly in any way whatsoever with the proper administration of justice by taking reprisals on persons on account of their involvement with the case before the Court or on account of what was done or to be done by the Court in Criminal Case No. 33 of 2004

3.	The Commissioner of Police or the Commander of VMF are to be served with this order to ensure compliance thereof and in the event of breach such person or persons shall be arrested and to be brought to Court for Contempt.

4.	Defendant is bailed to return to Court on the next date set for hearing."

APPEAL

This then is an appeal against the decisions of the Learned Judge made on 11 and 12 September 2004, in the absence of the Appellant, when he found that the statements made by the Appellant in Parliament 'constitutes the offence of contempt' and further that the Appellant was not protected from prosecution by Article 27 (1) of the Constitution of the Republic of Vanuatu.

The grounds of the Appeal were that: -

(1)	The appellant was never personally served with papers in relation to the matter;

(2)	The Appellant was tried in his absence without his consent and had no opportunity to challenge, and explain or contradict the evidence;

(3)	The learned judge failed to direct himself properly in relation to the evidence that was admitted at the trial as to its nature or its admissibility;

(4)	The conduct of the Prosecution was such that it amounted to a miscarriage of justice;

(5)	The finding of the Learned Judge that there was contempt of Court was wrong in fact;

(6)	That the Learned Judge erred in law in finding and adjudging that the Appellant was not protected by the privileges of members contained in Article 27 (1) of the Constitution.

For convenience the grounds may be reduced and summarised into two composite grounds; namely grounds 1 to 4 which relate to the 'process' which took place and secondly, grounds 5 & 6 which relate to the merits of the matter.

THE DISQUALIFICATION APPLICATION

At the commencement of the hearing of the appeal the Hon. Attorney-General intimated to the Court that the appellant was seeking the disqualification of the Hon. Chief Justice as a member of the Court constituted to hear the appeal. The Court adjourned and was then reconstituted without the Chief Justice to hear the application.

At the resumption of the hearing before the reconstituted Court (Fatiaki J., Treston J. and Saksak J.) Mr. Warsal orally argued the application, which was contained in a letter received by the Court earlier that morning.

The letter, which was signed by Counsel, sought the disqualification of the Hon. Chief Justice on two broad grounds:

"(i)	The peculiar facts of this matter involving his Lordship Chief Justice Vincent Lunabek; and

(ii)	Fairness to all parties given the nature of the matter"

The reconstituted bench after hearing extensive submissions from the appellants' counsel, the Hon. Attorney General as amicus in support of the application and the Deputy Public Prosecutor in opposition, and after careful deliberation, unanimously rejected the application for the reasons which it now publishes.

Appellant's counsel at the outset accepted that the application was not one alleging actual bias on the part of the Hon. Chief Justice (which was not supported by a shred of evidence), rather, the application was being made because counsel submitted there would be a reasonable perception of a real danger or real likelihood of bias in the decision of any Court which heard and determined the appeal if the Hon. Chief Justice was or remained a member. This public perception Counsel submitted inevitably arose from the nature of the contempt alleged against the appellant which constituted scurrilous personal abuse of the Hon. Chief Justice in a speech the appellant made in Parliament.

The Hon. Attorney General in supporting the application submitted that given the particular circumstances, there could be no guarantee of absolute impartiality in the public's perception of the Court's decision should the Hon. Chief Justice be a member and what's more this perception would remain despite the bench being constituted of four justices since the Hon. Chief Justice is perceived as being the head of the Judiciary and, as such, would be expected to have considerable influence over the decision of the Court.

The Deputy Public Prosecutor vigorously opposed the application on the basis that the sole focus of the proceedings was the charge of contempt by way of scandalising the Court albeit that the particular remarks referred to the Hon. Chief Justice personally and not to the Court as a whole. In this regard the present case was distinguishable from a case of defamation or slander of the Hon. Chief Justice which would plainly disqualify the Hon. Chief Justice from hearing the case.

We are satisfied that the relevant test is whether a reasonable and informed observer would consider, in all the circumstances of the case, that there is a real danger or real likelihood of a bias. We are of course mindful that over 80% of the population of Vanuatu are subsistence rural dwellers with little or no formal education and that such a population might be more easily swayed by first impressions than one with access to a wider variety of information sources.

The suggestion in this application was that since the appellant's derogatory remarks were directed to Hon. Chief Justice personally there was a real likelihood that the appellant would not get a fair hearing or an impartial consideration of his appeal either from the Chief Justice or any Court of which he is a member.

We have had the opportunity to consider a typed transcript of the appellant's speech in Parliament supplied to us by the Public Prosecutor's Office. We note at once that the alleged derogatory remarks (as charged) are taken out of context and are not necessarily confined to the Hon. Chief Justice.

Indeed, in so far as the remarks generally denounces 'foreign influence' in the affairs of the nation they could be said to apply equally to at least two members of the Court hearing the appellant's present application, yet appellant's counsel accepted that it is not of such gravity as to warrant the disqualification of the members concerned.

We note also, as we have already said, that the learned trial judge although he viewed a video-tape recording of the particular parliamentary proceedings, did not have the added benefit of a written transcript which we have had.

After carefully considering the 'offending' remarks, we are satisfied that the appellants fears are more a reflection of his own subjective perception than an objective assessment of a fair-minded informed observer. Such an observer in our view would be aware of the difference between a personal civil court action for defamation sounding in monetary damages and an impersonal application for an order of committal for contempt of court instituted by the Public Prosecutor. Furthermore the fair minded informed observer would be able to distinguish between a court which comprised only the Chief Justice and one which was constituted of a panel of four independent justices.

Additionally, the disjunctive nature of the grounds of appeal between the 'process' and the 'merits' of the case is a further reason for rejecting the application. The 'process' grounds do not require any material consideration of the alleged derogatory remarks against the Chief Justice nor do they require the court to make any findings adverse to the appellant and, if successful, would obviate any need at all for the Court to consider the 'merit' grounds.

THE PROCESS

Under the process grounds, Counsel for the Appellant contends that while the appellant was outside the jurisdiction the charge of Contempt of Court was issued against him. The Appellant was not personally served with the charge.

A finding of Contempt of Court was made against him in his absence and without his consent. He has no opportunity to challenge, and explain or contradict the evidence.

It is submitted that this constitutes a miscarriage of justice and breaches the rights of Appellant of the protection of the law enshrined and guaranteed under Article 5(1)(e) and (2)(c) of the Constitution.

Counsel for the Appellant also submitted that the charge was issued in the criminal jurisdiction. It was made on the basis of Section 32 of the Judicial Serves and Courts Act No. 54 of 2000.

Section 32 of the Judicial Services and Courts Act provides:

“32.	Contempt

The Supreme Court has power to punish summarily a person for contempt of court by imprisonment for a term not exceeding one year or a fine not exceeding VT100,000.”

It was submitted for the Appellant that the application is in the nature of a committal proceeding. As such, the procedure set in Part VII of the Criminal Procedure Code Act [CAP. 136] applied and the requirements of a Preliminary Inquiry as set out under ss. 143, 145 and 146 of the Criminal Procedure Code Act [CAP. 136] should have been followed out was not.

Counsel for the appellant also contended that given the ten days that had expired between the broadcast and the application, there was no real urgency in the matter, nor was there any evidence of an act or omission by the Appellant rendering it impossible for the Court to proceed in his presence [see: Art. 5(2)(d) of the Constitution].

It was further submitted for the Appellant that the Public Prosecutor cannot proceed with the application under Section 9(5) of the Public Prosecutor’s Act No.7 of 2003 which provides:

"If the Public Prosecutor considers it is appropriate to do so in any other case, the Public Prosecutor may institute a prosecution of a person for an offence in respect of which:

(a)	there has been no preliminary inquiry; or

(b)	the person has not been committed for trial.
…”

It was also said that as the alleged contempt occurred outside the Court, the provisions of the Criminal Procedure Code Act [CAP. 136] and the Judicial Services and Courts Act No. 54 of 2000 do not extend to cover such a situation.

In the normal course of event, the common law relator action is the appropriate form of process in a case such as the present involving an alleged contempt out of Court.

It was finally submitted for the Appellant that since no preliminary inquiry was conducted into the Appellant’s case and no opportunity had been given to the Appellant, he was improperly tried in his absence. It was submitted for the Appellant that that it is unconstitutional and wrong in law.

In response counsel for the respondent submitted: -

First, the question of admissibility of evidence depends upon its categorization. The video tape was direct evidence of the alleged criminal conduct of the accused. The tape spoke for itself, needed no cautionary directions to safeguard the interests of the Appellant. It was also submitted that as no objection was taken to its tender by the Appellant’s legal representative no error of law had been shown. As to the Appellant having an opportunity to give evidence concerning the tape, counsel for the Respondent submitted the Appellant’s counsel could have but did not ask the Court to adjourn the application to enable the Appellant to be present to give evidence. In any event the trial Court adjourned the matter for a further week to 17 September 2004 ostensibly to enable the appellant to appear and show cause.

Counsel for the Respondent further submitted that the Appellant had a legal representative in Court when the trial Judge was determining the application who was responsible for safeguarding the Appellant’s rights and interests.

Counsel for the Respondent further submitted that counsel for the Appellant misunderstood the nature of Contempt and the procedure for contempt proceedings in Court. The application for the Appellant to be committed was made pursuant to Sections 28 and 32 of the Judicial Services and Courts Act No. 54 of 2000 and Section 82(3) of Penal code Act [CAP. 135] and the inherent power of the Supreme Court of Vanuatu.

It was submitted that Section 32 of the Judicial Services and Courts Act No. 54 of 2000 does not in terms differentiate between civil and criminal contempts. The intention of the legislature was to adopt the common law concept of contempt whereby for all form of contempt the procedure is unlike other offences, there is no prosecution, no summons or warrant of arrest, nor is there a right to trial by jury.

The Respondent’s counsel submitted also that the Criminal Procedure Code Act, has no application in cases of contempt.

In the present case, counsel for the Respondent submitted that the Public Prosecutor initiated the action under Section 9(5) of the Public Prosecutor’s Act No. 7 of 2003 and applied directly in the Supreme Court for an Order for committal as in the case of Ahnee and Others –v- the Director of Public Prosecutions (Privy Council Appeal No. 28 of 1998) which was on appeal from the Supreme Court of Mauritius.

The Attorney General as Amicus Curiae submitted that the Public Prosecutor lacked the necessary locus standi to prosecute on its own initiative anyone who is in contempt of Court. The Learned Attorney General submitted that the Public Prosecutors right to prosecute is sanctioned by Section 8(1)(b) of the Public Prosecutors Act.

Specific behaviour leading up to criminal contempt must be established under Section 82 of the Penal Code and Section 8(1) of the Public Prosecutors Act No. 7 of 2003. Without such behaviour, criminal contempt cannot be established. The Public Prosecutor has no inherent power to prosecute contempt of Court on his own initiative. Neither the Penal Code nor the Judicial Service and Courts Act gives the Public Prosecutor any such power to undertake a prosecution for civil or criminal contempt of Court.

We agree with the Learned Attorney General’s submissions.

The functions and rights of the Public Prosecutor to initiate or institute a prosecution is set out under Section 8(1)(b) and 9(5)(a) and (b) are and must necessarily be confined to statutory offences.

Additionally the appropriate officer to initiate the process is properly the Attorney-General whose role functions and powers are set out in Section 10 of the State Law Office Act No. 4 of that Section:

"The Attorney-General shall be vested with all such duties, functions and powers as may be provided for by the Constitution, statute and at common law".

We are of the opinion that the type of contempt of Court which was alleged to have been committed by the Appellant, is not a statutory offence. It is a form of contempt commonly described as "scandalizing the Court". We accept that this form of contempt is an offence sui generis. It is not part of the ordinary criminal law. The provisions of Part VII of the Criminal Procedure Code Act [CAP. 136] are not applicable.

The essence of this Appeal however is the clear breach of the Appellant's rights under Article 5 of the Constitution. Article 5(1) and (2) of the Constitution provides:-

"5.(1)	The Republic of Vanuatu recognizes, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety and public order, welfare and health.
…
(b)	protection of the law;

(2)	Protection of the law shall include the following:-

(a)	everyone charge with an offence shall have a fair hearing…

(c)	everyone charged shall be informed promptly… of the offence with which he is being charged;

(e)	a person shall not be tried in his absence without his consent unless he makes it impossible for the Court to proceed in his presence;…"

The facts which are not disputed show the following:-

•	On 11 and 12 September 2004, the Learned Trial Judge, made, in the absence of the Appellant, a finding that the statements made by the Appellant in Parliament on 1 September 2004, constituted the offence of contempt and that the Appellant was not protected by Article 27(1) of the Constitution of the Republic of Vanuatu.

•	The Appellant was never personally served with the papers in relation to the matter.

•	The Appellant was tried in his absence without his consent and had no opportunity to challenge, and explain or contradict the evidence, although counsel for the Respondent conceded that they knew that the Appellant Prime Minister was out of the country prior to proceedings being contemplated.

•	There was no urgency nor was there any evidence of an act or omission by the Appellant which rendered it impossible for the Court to proceed in his presence.

The submission that the Appellant's legal representative was safeguarding the Appellant's rights cannot be accepted in the particular circumstances of the case. Further, the Respondent's submission that the trial Court adjourned the matter on 17 September 2004 and summonsed the Appellant to enable him to be present in person must be rejected because on 17 September 2004, the Appellant was merely summonsed to be show cause why he should not be committed to prison. A hearing and an adverse finding had already been made in the Appellant's absence.

We are satisfied that what occurred in this case constituted a serious miscarriage of justice. There were several flaws in the process which breached the fundamental rights of the Appellant to the protection of the law enshrined and guaranteed under Articles 5(1) and (2)(a), (c) and (e) of the Constitution .

The Appeal must be allowed on the process ground however the case will not be returned to the trial Judge for the reasons which follow.

THE MERITS

In their fifth ground of appeal the appellant contended that the learned trial judge was wrong in fact in finding that the appellant was guilty of contempt of court. Counsel for the appellant submitted that the finding was made by the learned trial judge based solely upon the recorded videotape and in the absence of the appellant. 

We have had the opportunity of examining the transcript both in English and Bislama. The two offending paragraphs are as follow -

"But the way we are heading now, we are heading that way. Because what I thing is that the judgment, which came out reflects some of us Ni-Vanuatu who are black but have a white heart. Their thinking reflects foreign influence in this country. And that is why I am taking the Chief Justice's decision along this line. And that we must be worried about. We must be worried about him because this people control everything in our country.

Foreign influence is big and we must be worried about this. What the Chief Justice did many people in Vanuatu do not agree with. Like the Minister of Foreign Affairs said that we put the motion where but the Chief Justice said you are right, but we are saying you are not right, yet he said you are right. That is why I say he is a white man's child. He has caused this country to go crazy…"

In determining the issue of whether these statements amount to a contempt of Court we recognise that the Public Prosecutor must have adopted the procedure in the case of Ahnee & others v The Director of Public Prosecution Privy Council Appeal No. 28 of 1998.

On a close examination of the charge, we note that the appellant was charged under section 32 of the Judicial Services and Courts Act No. 54 of 2000. That section reads:-

"The Supreme Court has power to punish summarily a person for contempt of Court by imprisonment for a term not exceeding one year or a fine not exceeding VT100, 000".

It was conceded by the respondent that the appellant did not plead to this charge on 11 September 2004 as he was not in the country at the time. It was also conceded that section 32 of the Judicial Services and Courts Act provides for a summary process. The process involves issuing a summons to show cause against the appellant why he should not be committed for contempt of Court. It begs the question however of whether or not the appellant was already tried in this instance. We are of the view that the appellant was tried and convicted without a trial.

The law on contempt by scandalizing the Court is defined in Regina v Gray [1900] 2 QB 36, and Regina v Commissioner of Police of the Metropolis Ex parte Blackburn (No. 2) [1968] 2 QB 150. Two elements are necessary. Firstly, the statement must be about a judge or about the Court. Secondly, it must have a real risk of lowering the reputation of a judge or of undermining public confidence in the decisions of the Court.

The learned trial judge in this case was of the view that -

(a)	"Given the circumstances in which the comments were made there is a real risk of undermining the public confidence in the administration of justice in this nation; and

(b)	The statement made in Parliament on 1st September 2004 amounts to contempt as it is aimed at scandalizing the Court of this land…"

Counsel for the appellant submitted that the statements made by the Prime Minister on 1 September 2004 did not amount to scandalizing the Court in that the statements were uttered in the exercise of the appellant's freedom of expression. Further that the appellant did not have an intention to publish his statements.

In our analysis of the transcript, we are of the view that it is inconclusive as to whether or not the appellant's utterances objectively constitute a contempt of Court. However we are unanimously of the view that the statements made amounted to serious personal abuse of the Hon. Chief Justice. However, this is not a defamation action.

On this point too we would allow this appeal. 

ARTICLE 27 (1) of THE CONSTITUTION

Although not strictly necessary to do so, in the event that the appellant's remarks constitute a contempt of court (which we seriously doubt) and in deference to the submissions of counsels and mindful of the importance of the subject matter, we turn to consider whether or not Article 27(1) of the Constitution operates as a bar to the present proceedings.

Article 27(1) expressly provides:

"No Member of Parliament may be arrested, detained prosecuted or proceeded against in respect of opinions given or votes case by him in Parliament in the exercise of his office."

In this regard appellant's counsel forcefully submits that Article 27(1) provides a complete immunity to the appellant for the statements he made in Parliament during the debate on the motion of 'no confidence' in him.

The Deputy Public Prosecutor equally forcefully submits the contrary relying on the learned trial judge's decision and the judgment of this Court in Paul Ren Tari v Nipake Edward Natapei & Others [2001] VUCA 1; Civil Appeal No. 11 of 2001 where this court said of the ambit of Article 27(1):

"… the immunity which is provided under Article 27 does not mean that a person can do what they like in Parliament without any one being able to have recourse to the Court for a breach of their constitution rights. The heart of the rights preserved by the Constitution is that the rule of law is ensured in all places at all times for all citizens. The Standing Orders of Parliament are the rules, which apply within Parliament. Like all other legal rights and responsibilities they must be adhered to.

It would make a mockery of the Standing Orders if Article 27 was interpreted and used as a device to read down the rights guaranteed by Article 5 of the Constitution so as to deny the constitutional rights of others which are preserved to them under Article 6 and 53 of the Constitution."

We emphasis that this Court in the above extract was referring to recourse to the Courts for a breach of constitutional rights guaranteed by Article 5 of the Constitution which does not arise in the present application.

More particularly however, the Deputy Public Prosecutor relying on dicta in the Supreme Court case of Natapei v Tari [2001] VUSC 113; Civil Case No. 59 of 2001 submitted that Article 27(1) is limited in its protection of members of Parliament to activities and speeches "… in the exercise of their legislative functions". It does not extend to protect comments or opinions that amount to defamation or contempt of court since such comments would not be a legitimate exercise of the legislative functions of a Member of Parliament. In counsel's words: 'a member of Parliament cannot use Article 27(1) as a shield to defame a person or as in this case scandalise the Courts of this land'.

It is common ground in this case that the appellant was at the relevant time, and remains a 'Member of Parliament'. Further that the opinions expressed by the appellant occurred 'in Parliament' during a parliamentary debate on a motion of no confidence then before Parliament. The Deputy Public Prosecutor also conceded that in the present case the appellant was being 'prosecuted or proceeded against in respect of the opinions given by him' during his speech in Parliament.

The sole issue in dispute therefore is whether the opinions expressed by the appellant are or were 'in the exercise of his office (as a Member of Parliament). If they were, then Article 27(1) provides a complete answer to the present charge and, if not, then Article 27(1) is inapplicable and provides no protection for the appellant.

We accept at once that the primary collective function of Parliament is the enactment of legislation but what does the individual 'office' of a Member of Parliament entail. In our considered opinion the 'office' of a member of Parliament carries with it various rights, duties and entitlements including an entitlement to a seat in the House of Representatives; to participate in parliamentary debates; to vote on a Bill before the House and; to receive the remuneration, allowances and emoluments approved for a member of the Parliament, to name but a few. A Member of Parliament also has loyalties and responsibilities towards the political party of which he/she may be a parliamentary member and, ultimately, to his/her electorate and constituents. It needs hardly to be said that the exercise of any or all of these functions and responsibilities of a parliamentarian's 'office' does not necessarily result in the enactment of legislation yet all are considered normal incidents of the 'office' of a Member of Parliament.

The particular characteristic or 'incident' under consideration is the entitlement of a Member of Parliament to participate in parliamentary debates. The Deputy Public Prosecutor seeks to confine the nature and content of such participation to the pursuit or furtherance of legislation in order that it might qualify for protection under Article 27(1).

We cannot agree with the submission, which constitutes an unwarranted gloss or refinement on the entitlement of a Member of Parliament to participate in parliamentary debates. Needless to say the entitlement which is exercisable subject to the Standing Orders of the House of Representatives, is also amenable to the rulings of the Speaker of Parliament and ultimately the censure of the Parliament. 

Indeed if the refinement were to be strictly and literally applied to the matter being debated before the Parliament and during which the offending remarks were allegedly made by the appellant, namely, a 'motion of no confidence' in the Prime Minister then, arguably, no debate would be necessary or possible since no legislation was under contemplation by the members of Parliament nor was it a remotely possible outcome of the debate. 

We unanimously consider that Article 27(1) operates as a bar to the present proceedings and that the appellant was protected by the privilege set out therein.

For the forgoing reasons the appeal was allowed.

Dated at Port Vila this 29th day of October 2004

BY THE COURT

VINCENT LUNABEK CJ
DANIEL FATIAKI J
PATRICK I. TRESTON J
OLIVER A. SAKSAK J