Barthelemy v. President of the Republic of Vanuatu

Judgment
Question Presented
(1) Was the Council of Minister’s advice to the President to dissolve Parliament while there was a pending motion of no confidence by members of parliament a violation of the Constitution? (2) If so, was the dissolution of parliament by President void? (3) Does the Supreme Court have jurisdiction to hear constitutional writ petitions relating to the dissolution of parliament?
Alleged Acts
Members of parliament filed a motion of no confidence against the government. Before the vote on the motion, the President dissolved the parliament based on the advice of the Council of Ministers. Applicants alleged that the President’s dissolution of Parliament based on the advice of the Council of Ministers (COM) to dissolve the parliament unlawfully breached their rights as Members of Parliament (MPs).
Procedural history
Applicants Barthelemy and other 27 Members of the dissolved Parliament, most of whom had signed a motion of no confidence—filed a constitutional application against the First and Second Respondents (the President and the Government, respectively) alleging that the dissolution breached their rights as MPs under the Constitution of Vanuatu.
Summary
The Prime Minister’s failed attempt to amend the Constitution to extend election cycles from four to five years, among other changes, caused discontent in Parliament and culminated in a motion of no confidence signed by a majority of MPs. While the motion of no confidence was pending, the COM advised the President to dissolve Parliament. Following this advice, the President exercised his powers under Article 28(3) of the Constitution and dissolved Parliament. Applicants argued that they never had the chance to debate and vote on the pending motion in Parliament and their rights pursuant to Articles 21(2), 43(2), and 66(1) of the Constitution were breached. Under Article 21(2), Applicants argued that dissolving Parliament breached their right to call for an extraordinary session of Parliament and left the business of Parliament unfinished. Under Article 43(2), Applicants argued that dissolving Parliament violated Applicants’ right to pass a motion of no confidence in the Prime Minister. Under Article 66(1), Applicants alleged that the actions of the COM and President prevented the fair exercise of the Applicants’ official duties as MPs and created a conflict of interest. Applicants sought a declaration that the dissolution of Parliament was unconstitutional and, thus, null and void. For Applicants to assert that the COM’s advice was invalid and unconstitutional, the Court held that Applicants needed to factually prove that the advice of the COM was wrong in law and unconstitutional. Simply disagreeing with the advice of the COM fails to meet the requirements of unlawfulness and unconstitutionality. Respondents argued the COM’s foreknowledge of the pending motion of no confidence in the Prime Minister was not wrong in law or unconstitutional and that this foreknowledge does not and cannot prevent the COM from exercising the executive power vested in it by Article 39(1) of the Constitution. Respondents also argued that the COM’s exercise of executive power was pursuant to and in line with Article 39(1) of the Constitution. Respondents also stated that they would rely on the plain, clear, and unambiguous wordings of Article 21(2), 43(2) and 66(1) of the Constitution. Article 28(3) of the Constitution empowers the COM to provide advice to the President, and the exercise of power by the President to dissolve Parliament is one that only he as the President can exercise. Article 28(3) also empowers the President with a wide discretionary power to dissolve Parliament, and any dissolution pursuant to Article 28(3) has the consequential effect of all MPs, including the Prime Minister, ceasing to be MPs. According to Respondents, the intent and purpose of Article 28(3) of the Constitution is to allow the people of Vanuatu to democratically elect a new Parliament in line with Article 4 of the Constitution. As to the Article 66(1) claim, the Court held that the Applicants failed to bring sufficient evidence to prove their case. Most of the evidence, the Court noted, was in relation to individual or groups of MPs, some of whom were part of the COM, and was directed towards negotiations to maintain a majority government. The Court agreed with Respondents that the intent of Article 28(3) is to grant to the people of Vanuatu the ability to democratically express their view and elect a new Parliament. In addressing the claim that the COM is collectively responsible to Parliament, the Court pointed to Vohor v. Abiut, where a motion of no confidence was lodged before Parliament, all parties had foreknowledge of the pending motion, the COM advised the President to dissolve Parliament, and the President acted on that advice. In that case, the Court of Appeal upheld the President’s dissolution of Parliament as lawful and constitutional. This Court applied the same logic to the present case. This Court noted that Applicants’ claim to rights under Article 43(2) no longer applies, given that those rights are afforded only to MPs and Applicants are no longer MPs (and were not MPs anymore at the time the case was filed). The Court also held that the right under Article 21(2) to call an extraordinary session was not infringed because that right had been exercised by 27 MPs before Parliament was dissolved.
Conclusion
The Court found that the “effect of denying Members of Parliament their right "to express an unfavourable opinion in the Government leadership" cannot be elevated to a priority over the right of the Council of Ministers to advise the President that Parliament should be dissolved and the constitutional right of a President (having received such advice) to exercise the responsibility vested in him under the Constitution. We are of the view that the right of the people of Vanuatu to democratically express their view in the election of a new Parliament must be accorded the priority." The Court held that the COM’s advice to the President to dissolve Parliament was not unconstitutional. Given that the answer to the first issue was in the negative, the Court was not required to address the second issue. Applicants were ordered to pay costs to the Respondents in the amount of VT250,000 within 28 days.
Legal Issue(s)
  • Conflict of Interests
  • Improper Practices
Applicable Law(s)
Constitution of the Republic of Vanuatu: Articles 53, 21, 28, 39, 40, 43, 66, 67
Region
Asia-Pacific
Country
Vanuatu
Court
Supreme Court
Date of decision
Sep 9, 2022
Geolocation

Latitude: -17.79184300887134

Longitude: 168.35449218750003

Geolocation