[1980-1994] Van LR 691

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION

Civil Case No. 5 of 1994

IN THE MATTER OF:

THE CONSTITUTION OF THE REPUBLIC OF VANUATU
("the Constitution")
AND:

IN THE MATTER OF:
THE CRIMINAL PROCEDURE CODE
(CAP. 136), SECTIONS 218, 219 AND 220

BETWEEN:

HIS EXCELLENCY FREDERICK KALOMUANA TIMAKATA
Petitioner

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Respondent

Coram: Downing J
Mr S Hakwa for Petitioner
Attorney General for Respondent

JUDGMENT
[PRESIDENT - CONSTITUTIONAL LAW - PARLIAMENT - performance of speakers functions by deputy speaker]
This matter comes before the Court by way of petition. The Petitioner, the President of the Republic of Vanuatu, seeks the following declarations:
	"That in the event that the Speaker of Parliament and the President are both outside the Republic of Vanuatu, the first Deputy Speaker, or in his absence the Second Deputy Speaker, may perform the functions of the Speaker until the Speaker or President (as the case may be) returns to Vanuatu, whichever is the earlier.
	That where both the Speaker and the President are within Vanuatu, and in the event that both of them are at the same time incapacitated, the First Deputy Speaker, or in his absence, the Second Deputy Speaker may perform the functions of the President until the Speaker or President (as the case may be) resumes work, whichever is the earlier."
The President had wished to depart for a holiday overseas but was advised by the Acting Prime Minister that he should consider not going on holiday as the Speaker of Parliament was out of the country and advice had been given to the effect that the Deputy Speaker could not act in the place of the Speaker in respect of the functions of the President.
The petition in this matter was issued on the 11th of January 1994. No objection is taken by the Respondent to it being dealt with on two days notice rather than seven days notice as would ordinarily be the case.
In the course of the hearing the Court was informed by the Honourable Attorney General that since the issue of the Petition the Speaker has now returned to the country thus making the determination of the issues in this matter somewhat academic. There can be no restraint now imposed about the departure of the President from Vanuatu.
The matter has been fully argued before the Court and following a request from both parties before the Court will take a most unusual course and I will express my views upon the issues.
Article 22 of the Constitution provides:
	"(1) At its first sitting after any general election Parliament shall elect a Speaker and one or more Deputy Speakers.
	(2) The Speaker shall preside at sittings of Parliament and shall be responsible for maintaining order.
	(3) The functions of Speaker may be exercised by a Deputy Speaker."
Article 37 of the Constitution provides:
	"(1) Whenever there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament shall perform the functions of President under this Constitution and any other law.
	(2) When Parliament is dissolved and there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament at the time of the dissolution shall perform the functions of the President of the Republic under this Constitution and any other law until a new Speaker is elected."
The basic issue for consideration in this matter is whether a Deputy Speaker may assume the functions of the Speaker in respect of Article 37 of the Constitution.
It has been submitted by the Attorney General who appeared for the Respondent that the Deputy Speaker could not exercise those functions.
It was firstly submitted that the word "functions" as it appears in Article 22(3) refers to the primary functions of the Speaker, that is, as set forth in Article 22(2) - to "preside at meetings of Parliament" and to "be responsible for maintaining order".
In addition it was argued that other functions that may be carried out by a Deputy Speaker and that they are limited to those specified in the Standing Orders of Parliament. It was submitted that the Deputy Speaker is elected to carry out these functions and no others. The Article 37 is not one of the functions for which a Deputy Speaker was elected. Thus the definition of the word "functions" is to be thus interpreted very narrowly indeed.
The second argument advanced was to the effect that the Deputy Speaker is a politically active member of Parliament and that as the President is to "symbolise the Unity of the Country" (see Article 33 of the Constitution) then a Deputy Speaker cannot carry out the functions of the President. It was argued that the Speaker, like the President, assumes an independent role upon his election and puts himself above politics upon his election by Parliament.
The third argument was to the effect that the expression "The Speaker" as it appears in Article 37 of the Constitution refers to the holder of that office and no other person. Thus the "functions" referred to in Article 37(1) cannot be carried out by a Deputy Speaker. The maxim "expressio unius est exlusio alterius" would thus be said to apply.
In reply, Mr Hakwa, counsel for the Petitioner, asserted that the word "functions" as it is used in Article 22(3) refers to all of the functions which by law or parliamentary practice are required to be carried out by the Speaker. He assented that there is absolutely no justification to draw the distinction between primary and other functions to be performed by the Speaker.
He further asserted that a reference to "the Speaker" as it appears in Article 37 is a reference to the person in that position at the time, not the particular elected individual who holds the position of "the Speaker". Thus the functions can be exercised by a person who holds that position for the time being.
In response to the second argument of the Respondent the Petitioner submitted that the Deputy Speaker, like the Speaker, looses his political allegiance when he is acting as the Speaker and that this role he accepts upon election to the position.
In my view the wording of Article 22(3) of the Constitution is clear and quite plan: "The functions of Speaker may be exercised by a Deputy Speaker". I can make nothing of the fact that the definite article has not been inserted before the word "Speaker".
The shorter Oxford English Dictionary defines a "deputy" as:
	"A person appointed to act for another or others, a substitute."
Thus one may say that the purpose of Article 22(3) is to make it quite clear that the Deputy Speaker is indeed a "deputy" in the full meaning of the word and is not in any way limited.
The word "functions" is not qualified in any way. In my view it must refer to all the functions of the Speaker, that is not only the functions based upon the practice of Parliament, but also all statutory and most importantly, Constitutional "functions". One of the Constitutional functions is clearly that provided for in Article 37.
In my view one cannot gain any assistance from the maxim expresssio unius est exclusio alterius. It is said to be a cannon of construction but it must always be applied with caution and only in the appropriate case. In my view the existence of Article 22(3) makes it quite clear that the maxim can have no application in this case. If one was to apply the maxim it would lead to a basic inconsistency and have the effect of negating the import of Article 22(3) of the Constitution. I note in this regard what was said in Colquhoun v. Brook [1889] 21 QBD 65 per Lopes L.J.:
	"The maxim "expressio unius, exclusio alterius", has been pressed upon us. I agree with what is said in the Court below by Wills J., about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice."
I do not believe that the arguments advanced covering the political activities of any Deputy Speakers are of relevance to the interpretation of Article 37 of the Constitution. I have no evidence of such political involvement but more importantly in my view Article 23(3) is clear on its face and there is simply no need to go into such argument.
I might also add that when interpreting the Constitution some consideration has to be given to its functionality. If interpreted too rigidly it could become a document of great constraint rather than one which sets forth the rights of the people and governmental structures of the Republic of Vanuatu.
There is no need to make the declarations sought in this case as events have overtaken the proceedings. I do however order that the costs of the Petitioner, on a solicitor and client basis, be paid by the Respondent. Such costs are to be taxed failing agreement.
Dated at Port Vila this 19th day of January 1994.
MR JUSTICE ROWAN MILTON DOWNING
JUDGE