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In the Matter of Article 55 of the Constitution and In the Matter of a Resolution pursuant to Article 24(1) of the Constitution [of Nauru]: Adjudicating the Constitutionality of Parliamentary Change of Government (Case Note) [2003] JSPL 3; (2003) 7(1) Journal of South Pacific Law

In the Matter of Article 55 of the Constitution and In the Matter of a Resolution pursuant to Article 24(1) of the Constitution [of Nauru]: Adjudicating the Constitutionality of Parliamentary Change of Government

By Gregory Tardi, B.A. (Hons.), B.C.L., LL.B*

Parliamentary government inherently comprises the search for political success and partisan advantage. Democratic parliamentarianism requires, however, that public life be conducted in accordance with the rule of law in both substantive and procedural respects. This is as true in micro-States as it is in greater powers which have historically well-established democratic traditions. Indeed, the small size and remote location of a State, as well as the lack of adequate reporting of its political law,[1] should not deter acute observers from taking note of jurisprudence that both creates legal precedent and enlightens the path of democracy in parliamentary and political practice.

The World’s Smallest Parliamentary Republic

Nauru is a microscopic island in the South-Western Pacific Ocean. After having been first a German, then a British colony, it became independent on January 31, 1968. The Constitution of Nauru, [2] adopted on January 29, 1968, sets out in Article 2 that the Constitution is the supreme law and that any law inconsistent with it is void to the extent of the inconsistency. The country has a unicameral Parliament of eighteen Members to represent its roughly 12,500 people. [3] The term of Parliament is three years. Suffrage is compulsory. After each election, Parliament elects a President from among it Members. The latest election was held on April 9, 2000 and the next one was scheduled for April 2003. Political parties exist only as loose alliances and Nauruan politics is somewhat fluctuating. Nauru is a member of the Commonwealth and follows the Common Law tradition. There is a Supreme Court, the Chief and only Justice of which is a barrister who otherwise lives and practices in Melbourne, Australia. [4]

Elements of a Constitutional Stalemate

Mr. Bernard Dowiyogo had been President of Nauru several times, but after the election of 2000, Parliament elected Mr. Rene Harris, who then formed a government comprising seven Members of Parliament.

On December 31, 2002, Parliament voted down the Budget of the Harris Government. The precise combination of factors which led to this unusual situation is difficult to reconstruct. Nothwithstanding the emergence of Nauru as a centre of money laundering through offshore banks the country’s economy has performed rather weakly in recent times, . There were also allegations of corruption within the Harris Government. However, the most immediate catalyst seems to have been the controversy arising out of the establishment, on Nauru, by Australian authorities and in return for payment to Nauru, of detention camps housing political asylum seekers originally destined for Australia.

Thereafter, on January 8, 2003, at a time when neither President Harris nor any member of the Government was present in Parliament, one of the other MP’s moved that the President and his Ministers be removed from office. This motion was voted on and passed by 8 to 3. The Speaker immediately declared the Government defeated and removed from office. Later in the same sitting day, Mr. Dowiyogo was nominated to be President and elected without a recorded vote. The House was then adjourned.

Still on January 8, but after his divestiture from office, pursuant to the authority set out in Article 55 of the Constitution, Mr. Harris, in his capacity as President, [5] (5) submitted a Constitutional Reference containing six questions to the Supreme Court of Nauru. [6] The most important of these related to the legality of the vote dismissing the government. Specifically, it was grounded on the terms of Article 24(1) of the Constitution which states that in order for a vote of no confidence to be approved, it must be voted by at least one half of the total number of Members of Parliament. The Reference also addressed the question whether, as a result of the vote, the Speaker’s ruling that the office of President was vacated, was sufficient to override the Constitution and allow the subsequent election of a new President. In essence, the Supreme Court was being asked to decide whether a parliamentary and political matter, namely the overthrow of the government by the opposition which had taken place within the House, was legal.

On January 9, the Secretary of Justice of the Harris Government applied ex parte for an interim injunction to prevent Mr. Dowiyogo from asserting that he was the lawful President of Nauru, from exercising powers that are the prerogative of the President, from appointing Members of Parliament to be Ministers, and from giving orders to the civil service and the police. That injunction was granted on the same day, to last 72 hours. Within that time, Mr. Dowiyogo applied for the injunction to be discharged. Adding to the confusion, on January 10, Mr. Dowiyogo was sworn in as President, as were the Ministers comprising his new Cabinet.

Discharge of the Injunction

The Supreme Court ruled on the matter of the injunction in an Order dated January 11. [7] It started by indicating that the pleadings pertained to a number of legal issues, mingled with a modicum of political invective. Given the partisan stakes of the conflict, this mixture of law and politics was to be expected. The Court’s decision on the Application for Discharge was strictly based on law even though it did mention that it was cognizant of the political circumstances of the situation and indeed of the deep controversy. In respect of the injunction, the Court applied the standard criteria of balance of conveniences and seriousness of the issue. While it noted the absence of the entire Harris Government from the Chamber at the time of the January 8 proceedings, it upheld that Government’s authority to seek a Constitutional Reference, given that this was filed very soon after the vote. Using its discretion with the aim of clarifying the confusion, the court also upheld the use of Article 55 of the Constitution, that which authorizes the Cabinet to seek a Constitutional Reference, as a vehicle for also seeking an interim injunction.

Mr. Dowiyogo pleaded that no injunction should have issued prior to the Opinion on the merits, but the Court held that the use of an injunction first, to maintain the status quo, was proper for the preservation of the rule of law. The Court also dismissed Mr. Dowiyogo’s argument that it lacked jurisdiction to deal with the proceedings in Parliament. Contrasting Nauru, with its written Constitution, to the United Kingdom, the Supreme Court reaffirmed that it had authority to determine any question arising under, or affecting, the Constitution. However, the Court refused to give an opinion on Mr. Dowiyogo’s political position that Mr. Harris had lost the confidence of Parliament.

In respect of the state of confusion in Nauruan politics, the Court indicated that its constitutional duty to receive the Reference did not constitute interference with the practices and procedures of Parliament. Given the state of confusion among civil servants as to adherence between two rival political forces, the Court believed it had been justified in issuing the injunction. The function of courts in clarifying the confusion which arises out of the thrust and parry of democratic politics is patent. The Court affirmed that , in these circumstances, it is incumbent for it to demonstrate again the legitimacy of this function.

Finally, the Supreme Court not only discharged the injunction forthwith, but it also sought to induce a political resolution of the controversy by reiterating that the solution to the stalemate lay within Parliament. It then set a time when it would issue its Opinion on the Reference. This judicial advice did not convince the politicians at this point. Consequently, the Supreme Court handed down its Opinion on the merits of the Reference on January 17, 2003. [8] No part of this judgment has yet been published or reported. [9]

The Preliminary Issue of Privilege

The first matter the Supreme Court undertook to determine was whether it could look into the proceedings of Parliament in order to establish the facts. This point involved the Court in a delicate weighing of the circumstances of the particular case in the light of parliamentary privilege. In Australia, there was said to be no privilege which could stand in the way of a Court’s right and duty to ensure that the constitutionally provided methods of lawmaking were observed. Nauru follows this interpretation of privilege. Nevertheless, the Court was aware of the difficulties relating to the extent and timing of a judicial intervention in parliamentary matters and it decided to adopt a stance of mutual restraint in dealing with matters between the Parliament and the courts. The Supreme Court recalled that the issue of judicial intervention in parliamentary matters had already been addressed in Nauru. [10] It thus decided to examine the Votes and Proceedings of the House, to take them as conclusive, and not to pursue the matter further. The Court cited Australian precedent [11] in not taking delving further into the intra-mural deliberative activities of the House.

The Court understood that in the United Kingdom, the doctrine of parliamentary privilege was broader than in Australia and British courts may not be authorized to look into, or behind, parliamentary processes. Canadian parliamentary practice on this point follows the British, rather than the Australian example.

Ratio: The Dismissal of the Government

The principal issue for the Supreme Court to consider was whether the vote of no confidence was properly executed. Pursuant to Article 24(1) of the Constitution, a resolution that Parliament has no confidence in the Cabinet requires requires the approval of at least one-half of the total number of Members. Excluding the Speaker, such a vote would have required the approval of nine out of the eighteen Members to pass. The Court contrasted Article 24(1) to Article 46(1), the constitutional provision which sets out the normal manner of voting by a majority of the votes of the Members present and voting. It concluded that in respect of a motion of no confidence, Article 24(1) was a mandatory and not a directory provision.

On this basis, the Court could stated that it could come to no other conclusion than that the Speaker had made an erroneous ruling in his holding that the Harris Government had been removed from office. In the case of a lack of confidence, as the Speaker’s power to conduct an election of a President is contingent upon a vote having been conducted in conformity with Article 24(1) of the Constitution. Since the purported removal of the Government was not valid, the subsequnet election of the President was also not valid.

Anchoring its opinion in the principal question of the reference, the Court indicated that its real concern was not the lack of constitutionality of the Speaker’s ruling on the vote of no confidence, but rather the validity of the subsequent election of a new President. On this point, it held that the vote on the motion of no confidence did not entitle the holding of the election of January 8. With the restraint required in such a delicate judicial assessment of the highest political process, the Supreme Court went no further than to indicate its opinion on the legality of the matter. It neither declared the newly elected President, Mr. Dowiyogo, illegally in office, nor did it indicate that the return of President Harris to office would be the proper remedy, nor for that matter did it mandate another election. The Court did indicate clearly, however, that correction of the matter was up to Parliament itself, if it chose to do so.

Parliament realized the constitutionally binding nature of the Supreme Court Opinion and acted accordingly. It held a second vote of no confidence, in which the Harris Government was defeated again, this time in conformity with Article 24(1). Subsequently, Mr. Dowiyogo was elected President by Parliament. Ironically, President Dowiyogo died in Washington, D.C., on March 10, 2003.

Ancillary Parliamentary Considerations

Interestingly, the Court opened other avenues of mixed legal and political analysis. With respect to parliamentary procedure, the Opinion indicated that there is a clear difference between the censure of a Minister and a vote of no confidence in the entire government. In relation to parliamentary convention, the Court distinguished emphatically between a vote of no confidence on the one hand, and either the resignation of the Government or its seeking a dissolution of the House on the other, in instances where the Government had lost the ability to control Parliament. It acknowledged its awareness that Nauruan political groupings function on shifting sands in which political pressure may be applied in the give and take of political life. In such circumstances, the Court indicated that the Government is under a duty to retain control not only of legislation, but also of proceedings in the House and of Parliament itself. It even came close to criticizing the Harris Government’s contribution to the constitutional stalemate, as its non-attendance had not enhanced its control of Parliament.

Significance for Democracy

This decision called two vital elements of democracy into question. The first is the requirement for maintenance of the supremacy of law. The Supreme Court reaffirmed its attachment to the Constitution of Nauru as the supreme law not only in the State, but also for the State itself. It underlined that Parliament is subject to the obligations and directions of the Constitution, as are the Executive and the Judiciary. The supremacy of the law over politics and over parliamentary tactics, similarly to the supremacy of the Constitution over other laws and quasi-legal instruments such as the Standing Orders of the House, is not mere abstract doctrine. With further Australian precedent [12] as support for its position, the Court noted that Parliament would, for example, not be legally able to amend the Constitution itself without a vote of two-thirds of all MP’s. If it tried to do so, it could be enjoined. It also held that Acts of Government subsequent to the incorrect application of a constitutionally mandated procedure could themselves produce justiciable issues..

The second noteworthy element of this case is the Court’s recognition of its role in the balance among the branches of government. In fulfilling its function as the guardian of the Constitution, the Court indicated that it has a significant role to play, even if it must exercise care in intervening in the affairs of Parliament. In this context, even the powers, privileges and immunities of Parliament and of its Members must be exercised in a manner consistent with, and not repugnant to, the Constitution. By this circuitous language, the Court was indicating that Mr. Dowiyogo had not properly been elected.

In no other case is it known that the election, within Parliament, of a Head of State and Government was overturned by high judicial proceeding. The scenario of events which gave rise to Nauru’s constitutional stalemate is so unique that, in the Canadian context in particular, it is highly unlikely to be duplicated. Nevertheless, looking beyond the national horizon is always both useful and instructive. Despite differences of local practice, the principles applied by the Supreme Court of Nauru is pertinent for Canada and other Commonwealth countries including those in the South Pacific country whichave systems of governance based on parliamentarianism. This decision can thus serve as an example to reinforce the subordination of political life to the rule of law. This case has indicated the importance of legality within Parliament and, more broadly, that the legitimacy of political life is based on politicians’ and parliamentarians’ adherence to the supremacy and Rule of Law.

* Senior Legal Counsel, Legal Services, House of Commons, Parliament of Canada. The views expressed here are exclusively those of the author and are not published on behalf of the House of Commons, its Members or its Administration.

[1] . “Political law” is the interdisciplinary study dealing first with the interaction among law, public policy and administration, and politics, and second, the influence of law on the other types of instruments of democratic governance. The approach taken in the study of political law incorporates the elements of constitutional and administrative law with public administration and political science. It goes beyond earlier treatments of “law and politics” by considering jointly all the disciplines relating to governance along a single continuum and by exploring how they interact in complement to, or in conflict with each other. Political law deals specifically with topics such as: the factors motivating the choice of instruments for governing, the balance of law and politics in the legislative process, the precedence of law and its accommodation with other types of instruments in government management, the legal value to be ascribed to political and campaign promises, as well as with the relative weight of legal, administrative and political influences in the adjudication of political disputes on issues of public governance. This analysis of the influences on, and forces in, the conduct of public affairs means that political law is more concerned with the role of law than are traditional studies of the rule of law. The study of political law is a reflection of the increasing legalization of politics and public administration, especially in an era dominated by the Charter. The use of political law is to demonstrate that in democratic governments, good governance involves not only respect for civil and political human rights, but also for its natural counterpart, the accountability of public institutions and officials to law. This interdisciplinary focus is deliberately from either a purely legal analysis of the relevant case law or an analysis exclusively grounded in political science or public administration.

[2] http://www.vanuatu.usp.ac.fj/paclawmat/Nauru_legislation/Nauru_Constitution.html.

[3] Despite Nauru’s size, the country takes its democratic institutions seriously. The opinion refers to a book on Parliament: N. N. Mehra, Practice and Procedure of the Parliament of Nauru.

[4] Mr. Justice Barry Connell, Chief Justice, Supreme Court of Nauru.

[5] Article 55 authorizes only the President or a Minister to refer a question to the Supreme Court.

[6] Constitutional Reference No. 1 of 2003.

[7] Constitutional Reference No. 1 of 2003: In the Matter of Article 55 of the Constitution and in the Matter of a Resolution Pursuant to Article 24(1) of the Constitution.

[8] . The Opinion is also entitled: In the Matter of Article 55 of the Constitution and In the Matter of a Resolution pursuant to Article 24(1) of the Constitution.

[9] . Given the general public interest of this case, there is reason to hope that it may be reported in the Law Reports of the Commonwealth. Alternatively, it ought to be reproduced in the reports published by the School of Law of the University of the South Pacific.

[10] L.G. Harris & Ors. v. The Speaker & Ors., Civil Action No. 13/97, Supreme Court of Nauru.

[11] Cormack v. Cope; Queensland v. Whitlam, [1974] HCA 28; (1974) 131 C.L.R. 432.

[12] Victoria v. the Commonwealth and Connor; New South Wales v. the Commonwealth; Queensland v. the Commonwealth; Western Australia v. the Commonwealth, [1975] HCA 39; (1975) 134 C.L.R. 81.