[1980-1994] Van LR 228
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 90 of 1986
 
IN THE MATTER OF:
VINCENT BOULEKONE VIHRESANIAL
(Member of Parliament)
Plaintiff
AND:
FRED TIMAKATA
(Speaker of Parliament)
Defendant
Coram: Full Court
Williams J, Amet J and Cooke CJ
Counsel: S. Hakwa for Defendant
 
JUDGMENT
[PARLIAMENT - STATUTES - Statutory Interpretation - Impossibility]
This is the petition of Mr Vincent Boulekone Vihresanial, the Leader of the Opposition, in Parliament, to the Supreme Court concerning the loss by him of his seat in Parliament.
The member was absent from Parliament during a session which commenced on 26th May 1986 and continued until 3rd June 1986.
The Speaker, on 3rd June, under the provisions of section 2(d) of the Members of Parliament (Vacation of Seats) Act, No. 33 of 1983 declared that Mr Boulekone's seat had been vacated.
When the petitioner requested the Speaker to reconsider his decision on the ground that the petitioner had been seriously ill during the whole of the relevant period, the latter took the view that he was unable to do so. The Speaker's attitude was that the petitioner having been absent on three consecutive sittings of Parliament without having obtained the Speaker's permission to be absent, his seat was automatically vacated.
Section 1 of Act No. 33/83 provides for disqualification of members in the event of their holding or becoming the holders of certain offices or following certain occupations.
Section 2 provides for vacation of seats by members in certain circumstances. It reads as follows, - I quote the relevant portion:-
	"VACATION OF SEATS OF MEMBERS.
	 
	2. (a) upon the dissolution of Parliament;
	(b) if he becomes disqualified by section 1 for membership of Parliament;
	(c) if he ceases to be a citizen of Vanuatu;
	(d) if he is absent from three consecutive sittings of Parliament without having obtained from the Speaker, or in his absence, the Deputy Speaker, the permission to be or to remain absent;
	(e) if he is adjudged or declared an undischarged bankrupt by a competent court;
	(f) if having been a candidate of a party and elected to Parliament he resigns from that party;
	(g) if he resigns his seat therein by writing under his hand addressed to the Speaker or in his absence, to the Deputy Speaker."
The Leader having declared his intention to petition the Supreme Court, the Electoral Commission wrote to him on 15th July 1986 stating that the Commission would not be bound by the Supreme Court's decision nevertheless they would await the decision of the Court. It seems that the Electoral Commission also take the view that the vacating of a member's seat under section 2(d) was automatic and could not be inquired into by the Supreme Court.
At the hearing. Mr Hakwa, Attorney General, for the Speaker, referred to Parliamentary privileges and quoted cases from English law including Bradlaugh v Gosset (1884), Vol. XII Q.B.D. 271. However, as Counsel stated, Bradlaugh's case was concerned with the privilege of a House of Parliament to regulate its own internal procedure and not with the enacted law of the country; but the petition brought before us is alleged to be based on the Constitution of Vanuatu which is part of the enacted law of the nation.
The petition is presented under Article 6(1) of the Constitution which reads as follows:-
	"6.(1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right."
Fundamental rights are set out in Article 5(1) which includes under paragraph (d) "protection of the law". Article 5(2) describes what is meant by "protection of the law." Without repeating it in detail one can say that it specifies the essential requirements of a fair hearing by anyone facing an allegation, that is to say, the principles of natural justice as known and understood in the free and democratic world will be applied by the tribunal considering the allegation. All tribunals in Vanuatu are accordingly bound by the rules of natural justice whether they be administrative in function or purely judicial.
Parliament is the highest court in the land and is equally bound to apply the principles or rules of natural justice. Being the highest of all the courts, its judicial decisions will normally be beyond the control of the Supreme Court or any other court unless Parliament itself, within the bounds of any of its own enactments gives citizens, including of course the Members of Parliament the right to take a matter into the ordinary courts.
The petition sets out that the Leader of the Opposition was not only ill but was dangerously ill to the extent that he was not able to request the Speaker's permission to be absent. With commendable fairness Mr Hakwa, for the Speaker, accepts that explanation and we have no doubt that that approach is endorsed by all the members of Parliament. It is the petitioner's case that he should not be condemned for failing to do that which he was physically and mentally unable to do at the relevant time.
In support of the Speaker, Mr Hakwa points out that section 2(d) of the Vacation of Seats Act is mandatory in its wording, that it leaves no room for the Speaker to exercise any discretion and that the Leader's offence, if we may describe it as such is an absolute offence. In other words it requires no intent; the mere absence of a member without permission completes the offence no matter what the reason or surrounding circumstances may be.
It is understandable that the Speaker when faced with such a situation would be loathe to import into the sub-section words excusing a member's failure to obtain permission. The Courts too are reluctant to add words of excuse to a mandatory prohibition clearly stated in a statute. Therefore if this petition is to be successful we will have to follow the obvious intention of parliament when it enacted Act 33/83 and section 2(d) in particular.
However, we have first to decide whether we have jurisdiction to consider the petition. The Act 33/83 does contemplate involvement of the courts in the circumstances set out in section 2 (f). That sub-section states that a member who resigns from his party shall vacate his seat. Section 4 indicates that where the Leader of any party informs the Speaker in writing that a member of his party has resigned the Speaker at the next sitting declares that the member has resigned. The member then has 30 days in which to institute legal proceedings to challenge the allegation of resignation and if he does so he retains his seat pending a decision of the Court. However, it does not vest power in the Court to consider any other aspects of sections 1 and 2 of the Vacation of Seats Act.
The Courts always take the view that parliament always has a reason for whatever it does. With regard to section 1, Parliament does not give to the groups of officers and office holders who are disqualified from sitting in parliament the right of instituting legal proceedings in the event of such disqualification because it is provided for in Article 52 of the Constitution. Likewise the Vacation of Seats Act gives no such remedy to members obliged to vacate their seats under section 2 because the remedy appears in Article 52 which reads as follows:-
	"52. The jurisdiction to hear and determine any question as to whether a person has been validly elected as a member of Parliament, the National Council of Chiefs, and a Regional Council or whether he has vacated his seat or has become disqualified to hold it shall vest in the Supreme Court."
 
Undoubtedly the Constitution gives the Supreme Court power to determine whether the Leader of the opposition has vacated his seat in the circumstances. In so doing, it is not our duty to introduce elements into section 2 (d) in order to make it less harsh. The sub-section is mandatory and we cannot try to divine an intention in Parliament which is not expressed therein. Although there may be occasions when expressions such as "without reasonable excuse" may be obviously implied this is not one of them. Indeed such an expression would be dangerously wide in that it could be virtually impossible in a case such as the failure of a member to ask for leave of absence to determine whether he had good reason for omitting to do so.
It is often said that there is no defence to a mandatory offence because it contains no mental element and therefore there can be no excuse. Thus one cannot say that he did not intend to drive carelessly, or to use a vehicle with defective brakes, etc. The act of careless driving or being in a car which has bad brakes is all the proof of guilt that is required. If Parliament in its wisdom stipulates that an offence is absolute that is the end of the matter as far as the courts are concerned and questions of intention do not apply.
There are, however, circumstances in which an act or acts normally constituting an absolute offence will not amount to an offence. Where the alleged offender has absolutely no control whatever over his actions e.g. a sleep-walker appearing naked in a public place or a motorist forced with a gun at his head to exceed the speed limit. In such cases the guilty conduct is excusable. Nevertheless the defence of duress has to be presented to the court and proved.
Circumstances may create an impossible situation over which the alleged offender never had any control. If a man by his own conduct places himself in a situation where it becomes impossible for him to comply with the law it is no excuse. But if it was impossible for him to comply with it through no fault of his own the Courts will not condemn him.
In the instant case we are informed in the petition that the Leader of the Opposition was not merely indisposed; he was not said to be too ill to attend without discomfort; such explanations would not fit into the doctrine of impossibility. The petition, which is fully accepted by the Attorney General as to the truth of its contents states that the petitioner was too ill not merely to attend but so ill that he could not even seek permission to be absent. That is to say the petitioner found it impossible to comply with section 2(d) and this is not challenged.
The Leader of the Opposition informed us that his deputy came to see him about some Parliamentary matter but the Leader was not mentally able to comprehend.
No doubt such a critical illness of the Leader of the opposition would be known to many people. It may or may not have been within the knowledge of several members. Had they voiced that information the Speaker may not have vacated the member's seat but it is probable that he would not have been aware that the incapacity was so devastating that the member was not even able to beg permission to be absent; even such a trivial task was beyond his mental and physical powers.
We consider that we should state that absolutely no criticism of the Speaker would be justified in this case. There can rarely be many instances where a member would be able to plead that it was not only impossible for him to attend but was also impossible for him to notify the Speaker. The tolerance shown to the Leader of the opposition by Parliament in not even purporting to challenge the petitioner's defence is commendable and in keeping with the tolerance existing in free and democratic societies.
We humbly and respectfully advise the Speaker under Article 52 of the Constitution that we find that the Leader of the opposition has not vacated his seat in that he was not in breach of section 2 (d) because it was impossible for him to comply with it.
1 October 1986
MR JUSTICE WILLIAMS
JUDGE
MR JUSTICE COOKE - I concur
MR JUSTICE AMET - I concur
 
[Editorial Note: This case is referred to in: Kalo v Public Service Commission, S/C 74/87
: Timakata v Attorney General; constitutional case; S/C 103-5/92
: Carlot and ors v Attorney General and anor [No. 1] and [No. 2]; S/C 116/88 and C.A. 4/88
: Willie v Public Service Commission; S/C 145/92]