[1980-1994] Van LR 411
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
Appeal Case No. 6 of 1988
 
BETWEEN:
BARAK TAME SOPE
WILLIAM EDGELL
CHARLES GODDEN
JIMMY SIMON
ANATOLE LINGTAMAT
Appellants
AND:
ATTORNEY GENERAL
First Respondent
AND:
VANUAAKU PATI
Second Respondent
AND:
ONNEYN TAHI, MP, SPEAKER OF PARLIAMENT
Third Respondent
[No. 4]
Coram: Cooke CJ, Martin and Amet JJ
Mr P Coombe for Appellants
Mr S Hakwa, Attorney-General
 
JUDGMENT
[CONSTITUTIONAL LAW - PARLIAMENT - STATUTES - "freedom of expression" considered.]
This is an appeal from the judgment of Mr Justice Ward dated the 10th day of August, 1988, in Supreme Court Case No. 113 of 1988.
The five Appellants were Members of Parliament and at the time members of the Vanuaaku Pati which is the party of the Prime Minister and his Government.
On the 9th June, 1988, the Speaker of Parliament received a note signed by the Appellants and other Members of Parliament proposing a motion of no confidence in the Prime Minister, Father Walter Lini. The same day, the Speaker sent an advice to the signatories to the notice ruling that the notice was not in order because of non-compliance with Constitution Article 19(2) and Standing Order 14.
On the 17th June, 1988, the Speaker wrote to the five Appellants advising that, that day he had received advice from the Prime Minister and Parliamentary leader of the Vanuaaku Pati to the effect that by their conduct they were deemed to have resigned from the Vanuaaku Pati and so the Speaker should invoke the provisions of Sections 2 and 4 of the Member of Parliament (Vacation of Seats) Act, 1983 (the "Act"). The Speaker advised that he would give his ruling at the next session of Parliament. By that, it was clear he meant he would be making the declaration referred to in Section 4(1).
The Vanuaaku Pati Constitution provided for Motion of No-Confidence that:
	1. "No Vanuaaku Pati Member of Parliament may move or sign or support a motion of no-confidence in Parliament in the Government leader chosen by the Pati unless he or she first resigns from the Pati.
	2. "Any Vanuaaku Pati member who moves or signs a motion of no-confidence in the Government leader chosen by the Pati without first resigning from the Pati is deemed to have resigned when he or she moves or supports such a motion."
Sections 2(f) and 4(1) of the Act provide that:
	"2. A Member of Parliament shall vacate his seat therein:
	(f) if having been a candidate of a party and elected to Parliament he resigns from that party.
	4. (1) Where circumstances such as referred to in section 2(f) arise, the leader in Parliament of the party as a candidate of which the member was elected, shall so inform the Speaker in writing of those circumstances, and the Speaker shall, at the sitting of Parliament next after he is so informed, make a declaration that the member has resigned from the party."
The Appellants sought the following relevant declarations in the Supreme Court:
	"(2) A declaration that:
	(b) In the alternative the said "rule of conduct" is contrary to the Constitution and invalid and of no legal effect;
	(c) Section 2(f) of the Act of 1983 is contrary to the Constitution and invalid and of no legal effect;
	(d) Section 4 of the Act of 1983 is contrary to the Constitution and invalid and of no legal effect;
	(e) In the alternative, section 4(4) of the Act of 1983 is contrary to the Constitution and invalid and of no legal effect.
	(3) A declaration that the Petitioners have not resigned as members of the Vanuaaku Pati."
All of these petitions were refused. Petitions 2(b), (c), (d) and (e) have been renewed in this appeal.
Firstly, Mr Coombe, with leave, raised a new point of law. He referred to Harrington v. Sendal (1903) 1 Ch 921, which establishes that where a private association is governed by rules, which do not contain any provision for amendment, those rules cannot be amended at all unless all the members consent. The Vanuaaku Pati traces its origins to the New Hebrides Cultural Association formed in 1971. We have not seen its Constitution but it is agreed that there was no provision for amendment. The Cultural Association became the New Hebrides National Party. Its constitution has no provision for amendment. In 1983 the Vanuaaku Pati adopted a very detailed constitution, with power to amend. The rule under consideration in this case was made as an amendment to the 1983 constitution. Mr Coombe argues that since there was no power to amend the rules of the Cultural Association, all amendments since 1971 have been invalid.
We doubt whether it is correct to apply the law relating to private clubs to a political party. But we do not need to decide that. On the facts of this case, the former Cultural Association and then the New Hebrides National Party were fairly informal bodies with rules more akin to a private club than a political organisation. The constitution of the Vanuaaku Pati adopted in 1983 is more than a minor change of the rules of the National Party. It creates a radically different body with a highly sophisticated party structure. That constitution refers to its predecessors and no doubt evolved from the membership of the old National Party. But in fact it was a new body, albeit the successor of the Cultural Association and National Party. As a new association, it was free to make its own rules unfettered by the rules of earlier associations.
It follows that the Pati has power to amend its constitution.
Mr Coombe next argued that if the party constitution and the amendment on "Motion of no confidence" (rule of conduct) were held to be validly made then the rule of conduct was unconstitutional because it infringed the Appellants' fundamental constitutional right of "freedom of expression" under Article 5(1)(g).
The Pati rule of conduct requires that any Pati Member of Parliament desiring to move, sign or support a motion of no confidence in Parliament in the Government leader chosen by the Pati, must first resign from the Pati. And if such a Member of Parliament does not so resign then he will be deemed to have resigned when he moves or supports such a motion. This rule of conduct quite clearly hinders a Pati Member of Parliament from freely expressing an opinion in the leadership of the Government in Parliament. If he does so, he will be penalised with resignation from the Pati.
This rule of conduct cannot be read in isolation. It must be read together with Sections 2(f) and 4(1) of the Act. Reading it together with and applying Sections 2(f) and 4(1) as indeed the Speaker did, the member is penalised further with the loss of his membership or Parliament, subject to legal proceedings.
This effectively precludes the member from expressing an unfavourable opinion or disapproval of the leadership of Government in the accepted constitutional Parliamentary procedure of a motion of no confidence, because by the procedures available, the manifestation of the intention to so move results in the member vacating his seat in Parliament.
The electorate which voted the member into Parliament is deprived of a political representative for desiring to exercise a fundamental right to expression of an opinion on the leadership of the Government.
We agree with and adopt the words of Lord Morris in Oliver and Another v. Buttigieg (1966) 2 All E.R. 459 at 466 that:
	"... where "fundamental rights and freedoms of the individual" are being considered, a court should be cautious before accepting the view that some particular disregard of them is of minimal account."
We do not consider that to hinder or preclude a Pati Member of Parliament from freely exercising his right, as a Member of Parliament, to express an unfavourable opinion in the Government leadership by a constitutionally provided procedure of Parliament, namely of no confidence, is of minimal account.
We do not accept the argument that the right of freedom of expression can be waived. A person cannot contract in advance not to exercise that right. Certainly the right of a Member of Parliament, namely to express himself freely in Parliament cannot be restricted.
We consider therefore that it is quite unconstitutional to so hinder such an expression of opinion with the threat of consequential loss of membership of Parliament.
Again, we can say no more than to echo the sentiments of the U.S. Supreme Court in the case of Thomas v. Collins [1945] USSC 32; (1944), 323 US 516 at p.543 cited by Lord Morris in Oliver v. Buttigieg (Supra) at p.467, where it was said:
"The restraint is not small when it is considered what was restrained. The right is a national right, federally guaranteed. There is some modicum of freedom of thought, speech and assembly which all citizens of the republic may exercise throughout its length and breadth, which no State, nor all together, not the nation itself, can prohibit, restrain or impede. If the restraint were smaller than it is, it is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when they are imposed on the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down the foundations of liberty."
In the end result we consider that the rule of conduct of the Vanuaaku Pati constitution is unconstitutional in that it infringes the fundamental right of freedom of expression of a Pati Member of Parliament in Parliament.
The third argument advanced by Mr Coombe for the Appellants is that Sections 2(f) and (4) of the Act were unconstitutional.
We have held in Appeal No. 4/88 that Section 2 of the Members of Parliament (Vacation of Seats) Act 1983 is constitutional insofar as there is power to unseat members if that is necessary to ensure the proper functioning of Parliament. To that we would add - if it is necessary to ensure that only persons of proper character are members. That is necessary to preserve the reputation and integrity of Parliament. Thus Bankrupts and convicts may be excluded.
Section 2(f) provides that a member shall vacate his seat "if having been a candidate of a party and elected to Parliament he resigns from that party".
Ward J remarked that "They are voted in because a majority of electors wish them to express the views of the party for which they have stood in the election ... Having once voted for him as the representative of a particular party, the electorate have a right to expect him to act in a manner consistent with that." With respect, that is a finding of fact and there was no evidence upon which it could be based. No doubt certain members are elected because of their party allegiance. Others may be elected because of their personality, and would succeed regardless of their party, if any. The Court is not entitled to speculate on these matters. In each constituency, for whatever reason, a member is elected to Parliament, not a party.
But that is a side-issue. The basic question is whether it is necessary for the proper functioning of Parliament, or to preserve the proper quality of its members, for a Member of Parliament to remain a member of a political party whose candidate he was at the election. The only possible answer to that question is: No.
Section 2(f) of the 1983 Act goes beyond what is necessary to give effect to the requirements of the Constitution. In fact it restricts the proper functioning of Parliament. It tends to remove control of Parliamentary proceedings from the House, where it should be, to an outside body. However reputable that body may be, it is a fetter on the constitutional power of Parliament.
We therefore hold that Section 2(f) of the Members of Parliament (Vacation of Seats) Act 1983 is unconstitutional. It follows that Section 4 of the Act is also unconstitutional. The Appellants are entitled to declarations to that effect.
The appeal is therefore upheld with costs.
Dated at Port Vila this 21st day of October, 1988.
MARTIN J
CHIEF JUSTICE, TONGA
COOKE CJ
PRESIDENT
CHIEF JUSTICE, REPUBLIC OF VANUATU
AMET J
SUPREME COURT JUDGE
PAPUA NEW GUINEA