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Kilman v Speaker of Parliament of the Republic of Vanuatu [2011] VUCA 15; Civil Appeal 09 of 2011 (13 May 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal No. 9 of 2011

IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF VANUATU

BETWEEN:

HON. SATO KILMAN – MP, Port Vila, Republic of Vanuatu
Appellant

AND:

THE SPEAKER OF PARLIAMENT OF THE REPUBLIC OF VANUATU
First Respondent

THE REPUBLIC OF VANUATU
Second Respondent

Coram: Hon. Justice Oliver Saksak
Hon. Justice Daniel Fatiaki
Hon. Justice Robert Spear

Counsel: Daniel Yawha and George Boar for the Appellant
Ronald Warsal for the First Respondent
Willie Daniel and Frederick Gilu for the Second Respondent

Date of Hearing: 11 May 2011

Date of Decision: 13 May 2011

JUDGMENT

1. On Sunday 24 April 2011, the Speaker of Parliament (the First Respondent) ruled that a motion of no confidence in the Prime Minister (the Appellant) was carried by 26 votes in favour to 25 votes against. Pursuant to Article 43 (2) of the Constitution, when a motion of no confidence in the Prime Minister is supported by an absolute majority of the Members of Parliament, the Prime Minister and other Ministers cease to hold office but continue in a caretaker role until a new Prime Minister is elected.
   
2. The deposed Prime Minister applied to the Supreme Court for relief on the principal ground that 26 votes did not constitute an absolute majority of the Members of Parliament. That proceeding was dealt with on an urgent basis by the Chief Justice over 28 and 29 April 2011 with a detailed and carefully reasoned decision being delivered on 30 April 2011 - Kilman v The Speaker and the Republic of Vanuatu Supreme Court, Constitutional Case no.02 of 2011; 30 April. The Supreme Court held that the ruling of the Speaker was both constitutional and effective. This appeal is against the judgment of the Supreme Court and accordingly maintains the challenge to the ruling of the Speaker on the grounds that it was not in accordance with the Constitution and consequently it is invalid.
   
3. The appeal to this Court has also been accorded some urgency. The case for such urgency is overwhelming. Essentially, the issue as to whether the Speaker was correct or not in his ruling will be determinative of who is the Prime Minister of Vanuatu and thus who makes up the Government.
   

Background

4. There is no dispute as to the facts in respect of this case. All that is really necessary to understand is that Parliament sat on 24 April 2011 to debate and vote on the notice of motion of no confidence in the Prime Minister (the Appellant). At that time, all 52 members of Parliament were present in the House. The voting took place unexceptionally with only the Speaker abstaining from voting. Accordingly, 51 votes were cast. The result of the poll was 26 votes in favour of the motion and 25 votes against. The Speaker ruled that the motion was carried by 26 votes to 25. That ruling had the effect that the Prime Minister (the Appellant) and other Ministers of his Government ceased thereupon to hold office. Within the hour, an election was held in Parliament for the new Prime Minister and the Honourable Serge Vohor Rialuth MP was duly elected Prime Minister.
   
5. This appeal is to be considered within the very narrow confines of a consideration as to whether 26 votes in favour of the motion of no confidence in the Prime Minister of the day amounted to an absolute majority of the members of Parliament as required by Article 43 (2) of the Constitution.
   
6. The surrounding circumstances are of some interest and should be addressed for completeness. Again, there is no dispute between the parties to the point where a statement of agreed facts was presented to the Supreme Court by counsel for the parties. That statement of agreed facts is as follows:-
   

a. On 21st April 2011, Parliament was convened in its First Extraordinary Session by the First Respondent Speaker at the Request of the majority of the Members of Parliament to debate a Motion of no confidence against the Applicant, then Prime Minister.

b. On 21st April, Parliament was convened but it has not met the required quorum to conduct its business. The Speaker adjourned the Extraordinary Session of Parliament to three (3) days later i.e. 24 April 2011 in accordance with Article 21(4) of the Constitution and Standing Orders of Parliament.

c. On 24th April 2011, 49 Members of Parliament were present and three (3) members arrived late.

d. The Speaker ruled that 49 members present formed a quorum to proceed with the agenda. The Item of the Agenda was the Motion of no confidence against the Applicant, Sato Kilman, and then Prime Minister.

e. The Motion of no confidence was moved against the Applicant. 26 members voted in favour of the Motion of no confidence and 25 voted against.

f. A total of 52 members were present when the Motion of no confidence was moved but only 51 members voted. After the Motion of no confidence was voted by 26 members, the First Respondent, Speaker of Parliament declared that the Motion of no confidence against the Applicant was carried.

g. Member Moana Carcasses Kalosil objected to the ruling of the Speaker and read the provisions of Article 43(2) of the Constitution and asked the Speaker to clarify whether 26 votes was in line with the requirement of absolute majority under Article 43(2) of the Constitution.

h. The First Respondent responded and said to the effect that 26 is an absolute majority and is constitutionally valid and legal.

i. The First Respondent then declared an adjournment of Parliament for 50 minutes.

j. The Applicant and 24 other Members of Parliament conveyed to the First Respondent Speaker that they disagree with the Speaker's ruling. The Applicant and 24 other Members refused to go in Parliament after the 50 minutes break.

k. After the break, 27 Members of Parliament (including the Speaker) resumed its sitting and elected a new Prime Minister, namely, Serge Vohor Rialuth, pursuant to Schedule 2 of Article 41 of the Constitution.

7. It is convenient to record at this time that the Appellant, the Honourable Sato Kilman MP, together with other members of his government, had earlier challenged the correctness of the notice of motion and the ability of Parliament to vote on it. That challenge to the Supreme Court was unsuccessful. We note that that decision is also under appeal. However, it was not ready for hearing in time to be considered with this case.
   
8. It can also be noted that, at all times material to this case, Parliament consisted of 52 members pursuant to the Representation of the People (Parliamentary Constituencies and Seats) Order No.4 of 2002.
   

Legal Principles

9. The starting point is Article 53 of the Constitution which provides for an application to be made to the Supreme Court for redress by anyone who considers that a provision of the Constitution has been infringed in relation to him. This is unquestionably the basis upon which the proceeding before the Supreme Court was commenced.
   
10. Before we turn to a consideration of the relevant provisions of the Constitution it is appropriate to recognise that the Constitution is the Supreme law of the Republic of Vanuatu pursuant to Article 2 of the Constitution. It is the founding document of this Sovereign Democratic State. Furthermore, the Constitution is to be construed sui generis and not as if it was an act of Parliament. This is well explained by the Privy Council in The Minister of Home Affairs v. Fisher (1980) AC319 at 329 where it is stated that the approach required for the construction of a constitution on the Westminster model (which the Constitution of the Republic of Vanuatu clearly is) is not to treat it as if it was an act of Parliament but,
    

"...as "sui generis" calling for principles of interpretation of its own suitable to its character without necessary acceptance of all presumptions that are relevant to legislation of private law".

11. We accept that this identifies the correct approach to the interpretation of the Constitution. In such an exercise, regard must be had to the Constitution as a whole and to ensure that it is a clear, workable and practicable instrument of State. We need do no more than reiterate what has been stated by this Court on previous occasions and in particular as encapsulated by this Court in Tari v. Natapei [2001] VUSA 18; Civil Case No. 11 of 2001 (1 November 2001)
    

"The Republic of Vanuatu is a Constitutional Parliamentary Democracy. The Constitution is the foundation document. As clause 2 of ... notes, the Constitution is the Supreme law of the Republic of Vanuatu.

In Chapter 4 the Constitution provides for a Parliament. In Clauses 16, 17, 21, 22 and 27 in particular, are enumerated the important place of Parliament, and the rights and immunities which are attached to it and its members.

Where there is room for debate, or it is possible that ambiguity exists, assistance may be gained from a consideration of the way in which Parliaments in other places have operated in the past or operate now. But any of that is in all circumstances and at all times subject to the clear and unambiguous words of the Constitution which is the Supreme Law."

12. It is also necessary to explain the place of the standing orders of Parliament which was addressed also in Tari v. Natapei.
    

"Standing Orders of Parliament, as the Constitution notes, are the rules of procedure of Parliament. Within Parliament they are supreme and must be strictly adhered to by all Members of Parliament. Nothing in the Standing Orders of Parliament can vary, abdicate or interfere with the rights which are provided under the Constitution.

In as much as the Standing Orders of Parliament have an effect and influence upon the constitutional rights of all members of Parliament, in accordance with Clause 6 of the Constitution any person aggrieved, is at liberty to apply to the Supreme Court... The Constitution does not provide that what happens in Parliament is to be treated differently than any other breaches of lawful rights guaranteed by the Constitution.

It necessarily follows therefore that the Supreme Court is the body which under the Constitution is charged with determining whether rights have been infringed or responsibilities disregarded.

To do that is not an interference with the sovereignty of Parliament or with the important immunity which is provided to members of Parliament. It is a necessary consequence of ensuring that all constitutional rights are accorded the meaning and force which the Constitution itself anticipated.

This appeal was first advanced on the basis that what is done in Parliament could never be looked at by the Court. That argument is in error... The supremacy of the Constitution in this Republic necessitates that in the extreme situation where there is an undisputed breach of legal responsibility, including the misinterpretation of the clear words of the Standing Orders of Parliament leading to a failure to recognize fundamental rights, the Court must be available to provide the remedy which the Constitution promises."

13. We are mindful of the significance of this case especially as it will determine who is the Prime Minister today and thus who makes up the Government. We are particularly mindful that the separation of powers between the legislature, the executive and the judiciary is one that must be treasured and protected at every level. Be that as it may, the judiciary does not exist in a vacuum and judges of this Court, like judges of any Court, live in the community, read newspapers, listen to radio, watch television, discuss matters of national governance with family and friends. We can speculate just as well as others what it would mean to national politics if this appeal is allowed. However, we cannot be driven in our determination of this case by any sense of what the consequences might be. It is the role of this Court to determine whether this particular ruling of the Speaker was or was not valid as being in accordance with the provisions of the Constitution. What flows from that is initially for Parliament and ultimately for the general electorate.
    
14. In the Supreme Court, the Chief Justice addressed these delicate issues with such clarity and effect that his remarks deserve to be repeated:
    

14 Before I consider the arguments and submissions of counsel of the respective parties, I wish to emphasize that this Court in considering those is not interested in or moved by the positions, personalities, or politics (if any) involved in the circumstances that gave rise to this case. This Court is also aware of the Constitutional separation of the various functions and powers of the State between the Legislature, Executive and Judiciary which concept has been jealously guarded and maintained over many years. It is a role of the Court to ensure that an appropriate separation of powers is maintained and this at all times.

15 It is not the Court's intention in deciding this matter to interfere with the sovereignty or independence of Parliament in the conduct of its internal affairs as Parliament is entitled to act pursuant to the Constitution; nor does the Court presume to judge the desirability or efficacy of the established parliamentary "practices and procedures" that form an integral part o that conduct.

15. The Supreme Court determined that the ruling of the Speaker was both constitutional and valid and thus the appellant was correctly removed as Prime Minister. In reaching this conclusion, the Chief Justice had regard to a number of provisions of the Constitution and particularly those that address the issue of majority voting. It is convenient for a number of provisions of the Constitution to be set out at this stage.
    

THE STATE AND SOVEREIGNTY

1. REPUBLIC OF VANUATU

The Republic of Vanuatu is a sovereign democratic state.

2 CONSTITUTION SUPREME LAW

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

...

4 NATIONAL SOVEREIGNTY, THE ELECTORAL FRANCHISE AND POLITICAL PARTIES

(1) National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.

(2) ...

(3) Political parties may be formed freely and may contest elections. They shall respect the Constitution and the principles of democracy.

FUNDAMENTAL RIGHTS AND DUTIES

PART 1 - Fundamental Rights

5 FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL

(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of 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, public order, welfare and health-

(a) – (c) ...

(d) Protection of the law;

(e) – (k)

(2) ...

6 ENFORCEMENT OF FUNDAMENTAL RIGHTS

(1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right."

15 PARLIAMENT

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

16 POWERS TO MAKE LAWS

(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) – (4) ....

17 ELECTION OF MEMBERS OF PARLIAMENT

(1) Parliament shall consist of members elected on the basis of universal franchise through an electoral system which includes an element of proportional representation so as to ensure faire representation of different political groups and opinions.

(2) ...

21 PROCEDURE OF PARLIAMENT

(1) Parliament shall meet twice a year in ordinary session.

(2) Parliament may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.

(3) Unless otherwise provided in the Constitution, Parliament shall make its decisions by public vote by a simple majority of the members voting.

(4) Unless otherwise provided in the Constitution, the quorum shall be two-thirds of the members of Parliament. If there is no such quorum at the first sitting in any session Parliament shall meet 3 days later, and a simple majority of members shall then constitute a quorum.

(5) Parliament shall make its own rules of procedure.

22 SPEAKER

(1) ...

(2) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.

(3) ...

24 PROCEEDINGS TO BE PUBLIC

Unless otherwise provided proceedings of Parliament shall be held in public.

28 LIFE OF PARLIAMENT

(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) – (5) ...

THE EXECUTIVE

39 EXECUTIVE POWER

(1) The executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law.

(2) – (3) ...

40 COUNCIL OF MINISTERS

(1) There shall be a Council of Ministers which shall consist of the Prime Minister and other Ministers

(2) ...

41 ELECTION OF PRIME MINISTER

The Prime Minister shall be elected by Parliament from among its members by secret ballot in accordance with the roles in Schedule 2.

43 COLLECTIVE RESPONSIBILITY OF MINISTERS AND VOTES OF NO CONFIDENCE

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

(2) Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week's notice of such a motion shall be given to the Speaker and the motion must be signed by one-sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected.

47 THE JUDICIARY

(1) The administration of justice is vested in the Judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law.

(2) – (6) ...

53 APPLICATION TO SUPREME COURT REGARDING INFRINGEMENTS OF CONSTITUTION

(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.

(3) ...

SCHEDULE 2

ELECTION OF THE PRIME MINISTER

1. The candidate who obtains the support of the absolute majority of the members of Parliament shall be elected Prime Minister.

2. If no candidate is elected under paragraph 1, a second ballot shall be taken but the candidate obtaining the lowest number of votes in the first ballot shall be eliminated.

3. If on the second ballot no candidate obtains the support specified in paragraph 1, further ballots shall be held, each time eliminating the candidate with the lowest vote in the preceding ballot until one candidate receives the support specified in paragraph 1, or if only two candidates remain the support of a simple majority.

16. It is the central submission for the Appellant that an absolute majority of members of Parliament, as required by Article 43(2), was not achieved with 26 votes and that the Speaker was accordingly wrong to rule that the motion had been carried. For the Appellant, Mr Yawha emphasized the need for the plain and ordinary meaning of the words employed in the Constitution to be adopted and for care to be shown so that the clear language of the Constitution was not stretched to achieve a particular purpose which the drafters of the Constitution could never have contemplated or desired.
    
17. Returning to Article 43(2), it states:
    

43. (1) ....

(2) Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week's notice of such a motion shall be given to the Speaker and the motion must be signed by one-sixth of the members of Parliament. If it is supported by an absolute majority of the members of Parliament, the Prime Minister and other Ministers shall cease to hold office forthwith but shall continue to exercise their functions until a new Prime Minister is elected." (emphasis added)

18. The Chief Justice, in his consideration of the issue, first reminded himself that the central feature or the structure of Government under the Constitution... "is majority rule". In paragraphs 33 to 38 of his decision, he stated:
    

33 It is the contention of the Applicant that the meaning to be given to "absolute majority" under Article 43(2) is "at least one of the half plus one" which is 27 of the total of 52 Members of Parliament.

34 If that contention is right, then, it must be intended by the Constitutional framers in the interest of stable government which requires an overall or "absolute" majority which means "one over all rivals combined. This is consistent with all Vanuatu judgments referred to by counsel for the Applicant on the point.

35 The present case illustrates the context of a dispute when the votes are close to evenly divided numbers. Parliament consists of 52 members which is an even number of members. If 26 members voted for the motion of no confidence, and 26 others voted against the motion, the motion is not passed by a majority of the Members of Parliament within the meaning of Article 43(2) of the Constitution. If the motion receives at least one half plus one, it receives a majority of the members of Parliament. Again this is what the constitutional framers intended in the interest of stable governments.

36 It is clear that the Constitution did not intend this type of dispute before Parliament on 24 April 2011 to come before the Courts at all. One can only note that because of the time factors which are necessarily involved, and which litigants can play a part in protracting, necessarily created an atmosphere of instability in the Parliament and the Executive Government. In such context, the interpretation of the Applicant of the "absolute majority of the Members of Parliament" cannot assist in the context before Parliament on 24 April 2011 for the following reasons:

37 First, any instability which may occur before, after or during a debate of a motion of no confidence against a Prime Minister will result in the Prime Ministership to be in the hands of the Parliament as the Constitution intends it to be.

38 Second, the context requires that the application of an interpretation other than that of the Applicant must be considered. This is in line with the established practice for the Courts when interpreting questions of law concerning the Constitution, to treat the Constitution as a workable, practical and operable document. In the present case, there is no need for me to go through a lengthy process of interpretation as I have identified the words used in Article 28(2) of the Constitution which offered a solution to the current political impasse. The following words are used in Article 28(2) of the Constitution: "the votes of an absolute majority of the members present". What constitutes an absolute majority as interpreted by the Applicant can only be determined by reference to the number representing "all members" of Parliament. This cannot apply in the context of the dispute before Parliament on 24 April 2011 when the motion of no confidence against the Applicant, then Prime Minister was voted by Parliament.

19. We regretfully cannot agree with those conclusions The requirements of Article 28(2) as to the life of Parliament are worded quite differently to those of Article 43(2). Indeed, the Constitution deals with different considerations with carefully defined voting regimes as the following table demonstrates:
    

20. The only conclusion we can reach is that the drafters of the Constitution sought to prescribe, in each case, the voting regime necessary to meet the attendant requirements.
    
21. For example, the passing of a general motion in the course of the ordinary business of Parliament (Article 21(3) and (4)) requires first a quorum of two-thirds of the "members of Parliament". However, there is a safeguard - if a significant number of members choose to stay away and a quorum of two-thirds is not achieved. In that event, the business of the house can easily be thwarted by a number of members staying away. Article 21(4) provides in such an event for Parliament to meet three days later when a "simple majority of members" shall constitute a quorum. That might result in the general business of Parliament being conducted by as few as 27 members. Having achieved a quorum, the vote is then a simple majority of the members voting. So, the general business of the house could conceivably be conducted by as few as 27 members and a simple majority of those who vote could see the passing of legislation.
    
22. When dealing with the voting regime for dissolving Parliament under Article 28, the quorum requires three-fourths of the members; which amounts now to 39 members. There is no provision for a quorum of a lesser number as provided for in Article 21 (4). The motion to dissolve Parliament then requires the "absolute majority of the members at the special sitting" which must mean at least half plus one of the members present. So if 40 members are in attendance and thus a quorum is achieved, a vote of 21 in favour of the motion will see it carried.
    
23. Article 41 (with schedule 2) dealing with the election of a Prime Minister, Article 43 dealing with the removal of a Prime Minister, and Article 70(6) dealing with the termination of a state of emergency - all require a resolution "supported by an absolute majority of the members of Parliament". The wording in each case is plain and reflects the need for certainty when these serious and significant steps are to be taken. We consider that the phrase, "an absolute majority of the members of Parliament" can only mean at least half the members of parliament plus one; that is, half of 52 being 26 plus 1 equals 27. We consider that this is the obvious and necessary construction of those provisions for a number of reasons.
    
24. Mr Yawha argues for "absolute' to be given its natural meaning; that is, beyond or above doubt or question. He asks us to mark the distinction between a simple majority (as employed in Articles 23 (3) and 23 (4)) dealing with general business and the more serious and significant considerations required under Articles 41 and 43 in particular. We agree that "absolute " is a strong word and one customarily used with care.
    
25. Mr Daniel joined with Mr Warsal and argued that the Chief Justice was correct in the Supreme Court to conclude that, in all the circumstances that prevailed on 24 April 2011, 26 votes amounted to an absolute majority. That is, 51 votes were cast and a majority of 51 votes is 26. Mr Daniel endeavoured to argue that the Speaker was not to be taken into account when considering how many members of Parliament made up the "members of Parliament" for the purposes of either Article 41 (election of a Prime Minister) or Article 43 (removal of a Prime Minister). This argument relied on Mr Daniel's submission that the Speaker does not have a general vote except where the votes are tied or even. In this respect, he referred to Standing Order No.10
    

Powers and Duties of Speaker

10. (1) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order. In exercising his duties, the Speaker may request assistance from officers of Parliament or if necessary, members of the Police Force.

(2) The Speaker shall preside over debates in Parliament and ensure that Standing Orders, Practices and procedures of Parliament are Respected and observed by all Members.

(3) The Speaker shall not participate in any debate before Parliament. In the case of an equality of votes, the Speaker shall give a casting vote and any reason stated by him shall be entered in the minutes of the sitting.

(4) The Speaker shall read or cause to be read by the Clerk the results of any vote or debate of Parliament.

(5) The Speaker shall represent Parliament and sign any official document originating from Parliament.

26. We cannot find anything in the Constitution, Standing Order NO. 10 or elsewhere that prevents the Speaker from voting on any motion or general resolution before Parliament. Standing Order No. 10, in our view, simply provides for the established parliamentary practice that the Speaker will preside over and maintain order in respect of the conduct of debates in Parliament. That is obviously why a Speaker should not participate in a debate. By Standing Order No. 10(3), the Speaker has (what is described as) a casting vote that he might apply when the votes are tied. This case does not require us to determine whether the Speaker has just one vote to be cast only in the event of a tie or, as is the case with many committees and boards, both a deliberative vote and a casting vote. The simple fact remains that the Speaker does have a vote as an elected member of Parliament. He must be taken to have a vote notwithstanding Standing Order 10. Whether that vote is to be applied during the general poll or used only in the event of a tie is not important for the purposes of this case. The Speaker has a vote as a member of Parliament and he cannot thereby be excluded from consideration as to who makes up the "members of Parliament".
    
27. It is, accordingly, of some passing interest that, although the Speaker did not vote on the motion of no-confidence, he was the first to cast a vote on the motion to elect a new Prime Minister which followed less than one hour later. Mr Daniel's response to this observation was to attempt to draw a distinction between a vote by show of hands (as applies to a motion of no confidence in a Prime Minister) and a vote to elect a Prime Minister (which is by way of secret ballot). We are not persuaded that there is any substance in such a distinction.
    
28. The response by the Republic of Vanuatu was divided between Mr Daniel and Mr Gilu. We express our surprise at the rather novel and somewhat unorthodox submissions presented by Mr Gilu. He endeavoured to argue that Article 43 (2) should be construed in an entirely different way to that argued by any of the other counsel before us or, indeed, as argued in the Supreme Court. The argument was to the effect that the notice of motion, if signed by 27 members of Parliament, would thereupon immediately result in the Prime Minister of the day being removed without even the need for a vote. It is unnecessary for us to say anything further about that submission except that we found it somewhat disingenuous. It totally ignores the plain wording of Article 43 (2) which commences "Parliament may pass a motion of no confidence in the Prime Minister............"
    

Consideration

29. The first point to note when considering Article 43 is that it is specifically designed to address a matter of substantial importance. In our view, that is precisely why a clear statement was made in the Constitution as to the significant degree of support required either to elect or remove a Prime Minister. That is surely why "absolute" has been employed to qualify "majority of members of Parliament" .
    
30. We agree with Mr Yawha that an absolute majority must be one that cannot be subject to doubt or question as could arise where there was an abstention or absence from the voting chamber.
    
31. We can envisage the confusion that is likely to arise if the expression an "absolute majority of the members of Parliament" means anything other than 27 or more in a Parliament of 52 members. In a Parliament of 52 members where one member abstains from voting, the Respondents' argument is that this means that the absolute majority is to be assessed against 51 members of Parliament of which a majority, simple or absolute, is 26. This flaw in this reasoning can be easily seen when it is extended to the situation where there are a greater number of abstentions or absences and just a bare quorum is achieved. Bearing in mind how Article 21(4) can be applied to the motion for either the election or removal of a Prime Minister, and which only needs a quorum of 27 members, to adopt the Respondents' argument that "an absolute majority of members of Parliament" really means a majority of those who voted, could see a Prime Minister elected or removed by only a handful of members. We do not accept that such a situation would have been contemplated by the drafters of the Constitution. Nor is it in accordance with what we consider to be the clear and unambiguous provisions of the Constitution..
    
32. The argument for the Respondents becomes more untenable when the Constitution is examined as to how it employs the term, "members of Parliament." We really need go no further than consider the way in which it is used in Article 43(2) where it appears twice. First, it appears in the second sentence relating to the signing of the notice of motion, "Parliament may pass a motion of no confidence in the Prime Minister. At least 1 week's notice of such a motion shall be given to the Speaker and the motion must be signed by one-sixth of the members of Parliament." How is one-sixth of the members of Parliament to be calculated unless it is one-sixth of 52; arithmetically, that is 8 2/3rds or 9 members to round it up?
    
33. We cannot accept that the drafters of the Constitution would require "members of Parliament" to mean one thing in one sentence and something entirely different in the very next sentence in the same Article.
    
34. The term "members of Parliament" appears also in different places throughout the Constitution commencing with Article 17 dealing with the election of "members of Parliament", Article 20(3) relating to the election of "members of Parliament", Article 21 (4) providing that a quorum shall be two-thirds of the "members of Parliament" and so on in a similar vein. Nowhere is there the slightest suggestion that "members of Parliament" means anything other than all those elected being 52 in number.
    
35. For the foregoing reasons, we allow this appeal. We consider that the casting of 26 votes in favour of the motion of no confidence in the Prime Minister did not constitute, "an absolute majority of the members of Parliament". That would have required 27 or more members to vote in favour of the motion.
    
36. We canvassed with counsel at the appeal hearing what consequential orders might be required in the event of the appeal being allowed or conversely being refused. Mr Yawha argued that both the ruling of the Speaker that the motion of no confidence was carried and the ruling of the Speaker that the election of the Honorable Serge Vohor was also carried are both decisions that need to be quashed as invalid and unconstitutional.
    
37. Counsel for the respondents took a slightly different tack. They argued that if the appeal was to be allowed then the only ruling to be quashed should be the ruling in respect of the motion of no confidence. More exactly, they argued that as there was no challenge to the election of the Honourable Serge Vohor as Prime Minister, the Court should not extend its reach to deal with that resolution as that would inappropriately intrude in the business and concern of Parliament. Furthermore, it was argued that the motion to elect the Honourable Serge Vohor as Prime Minister was carried by 27 votes which demonstrated that he had the support of an absolute majority of the members of Parliament. We do not accept that argument.
    
38. The election of a new Prime Minister was indeed required by the Constitution following the Speaker's ruling that the motion of no confidence had been carried. It is a necessary consequence of the passing of a motion of no confidence in a Prime Minister. Both resolutions of Parliament must be quashed. Otherwise, Parliament would be left in the quite absurd position of having two Prime Ministers at the same time. The position might well be different when dealing with what has occurred as part of the general business of the house.
    

Conclusion

39. We allow the appeal and grant the following relief:-
    
    1. We declare that the ruling of the Speaker on 24 April 2011 that the motion of no confidence in the Prime Minister was carried by 26 votes is wrong and contrary to the clear terms of the Constitution. Furthermore, we declare that that motion was lost, the Appellant did not cease to hold office as Prime Minister, and that he remains the Prime Minister;
       
    2. We declare that all Ministers holding office on 24 April 2011 as part of the Kilman government remain in office;
       
    100. We declare that the subsequent resolution of Parliament of 24 April 2011 to elect the Honourable Serge Vohor as Prime Minister is in breach of the Constitution and accordingly invalid;
         
    4. We declare that the First Respondent remains the Speaker of Parliament as is the case with any Deputy Speaker holding office immediately prior to the motion of no confidence being put to the vote on 24 April 2011
       
    5. We declare that the "election" of any member of Parliament as the Speaker or as a Deputy Speaker after the motion of no confidence was put to the vote on 24 April 2011 is invalid;
       
    6. We declare that each and every appointment of ministers by the Honourable Serge Vohor, following his invalid election as Prime Minister, is similarly invalid.
       
40. This leaves Parliament in the position that it was in before the Speaker ruled that the motion of no confidence in the Appellant as Prime Minister had been carried. It confirms that the Appellant remains the Prime Minister and his government remains in office.
    
41. We were invited to give consider giving directions as to how Parliament should address (what might be seen as) the somewhat untidy situation that now arises. In short, the Kilman government is to be considered as if it remained in office and the "Vohor government" as if it never came in to office. There is a compelling need for a smooth transition to achieve the practical outcome that this decision requires. We are reluctant to become too involved in that process and prefer to leave it, as far as is possible, to Parliament to exercise maturity and responsibility in the transition process.
    
42. We understand that the members of an outgoing government are entitled to certain transitional payments as is the case with an incoming government. We consider that restraint is required here to ensure that public funds are not wasted by the strict application of any standard or customary approach to the payment of such expenses. In a strict sense, there has not been a change of government. In our view, reasonable and actual, proven expenses directly related to the vacation of office and the taking-up of office are all that are required and we so direct. Furthermore, we direct that a conventional expense claim system, capable of public scrutiny, should be implemented under the direction of the Speaker to meet this objective.
    
43. A similar approach is required in respect of the offices of Speaker or Deputy Speaker.
    
44. We reserve leave to apply for further directions as may be required. However, given what we trust is a reasonably comprehensive set of declarations and directions, the attitude of this court to such practical considerations should now be obvious.
    
45. It is now for Parliament to re-organise itself in a way that best enables it to undertake its primary and principal constitutional responsibility to provide for the peace, order and good governance of the Republic of Vanuatu. Furthermore, we consider that it is appropriate that Parliament reconvenes as soon as possible so that it might continue to fulfill its constitutional function in the interests of the nation.
    

DATED at Port Vila, this 13 day of May 2011

BY THE COURT

Hon. Justice Oliver SAKSAK

Hon. Justice Daniel. FATIAKI

Hon. Justice Robert SPEAR