Nauru – the narrative

The following narrative concerning Nauru’s ongoing constitutional crisis was compiled by PiPP with assistance from a variety of sources.

Under the law, there are three ways in which the Parliament of Nauru can be dissolved:

1. If Parliament continues for its full 3 year term, it dissolves automatically three years after the date of the first sitting – see Art 41(7) of the Constitution of Nauru.
2. If the President has declared a state of emergency, he can dissolve Parliament via emergency order (as was done in 2004, 2008 and 2010 – due to Parliament deadlock) – see Art 77 and 78.
3. If the President advises the Speaker to dissolve Parliament at any time before the end of Parliament’s 3 year term, the Speaker can dissolve Parliament in accordance with Article 41 of the Constitution. The Speaker must refer the advice to Parliament within 14 days after receiving the advice. Except under very limited circumstances, he is obliged to dissolve Parliament on the 7^th day after the advice has been referred to Parliament.

The current dispute revolves around the purported dissolution of Parliament via the third of the methods listed above, that is, by the Speaker under Article 41. In particular, it revolves around the interpretation of Article 41, and the meaning of ‘referring’ the President’s advice to Parliament. The facts underlying the dispute are set out below.

On 27 February, the President wrote to the Speaker and advised him to dissolve Parliament. The President’s stated reason for this advice was that after considering the current political situation he had formed the view that ‘we cannot reach consensus to continue to run my government with integrity and stability.’ This was a reference to the recent resignation (on 8 and 13 February) of two Ministers, the sacking (on 11 February) of one Minister by the President, and the appointment (on 21 February) of 2 members of the opposition to be Cabinet Ministers.

But two weeks before the President gave the advice to dissolve Parliament, 9 members of Parliament had written to the Speaker requesting that he call a sitting under Article 42 of the Constitution, and advising him they would be moving of a motion of no confidence in the President and Ministers. The successful passage of such motion requires at least half of the total number of members of Parliament to vote in favour, that is, 9 members. Those signing the petition included the three (now former) Ministers mentioned above, as well as two Ministers who were and are still in Cabinet. The Speaker replied to them on 12 February, declining their petition for a sitting on the grounds that the Supreme Court has previously held that Article 42 is defective and cannot be relied upon.

Instead, the Speaker, in exercise of his power under Article 41(3), called a sitting of Parliament for Friday 1 March, for the purpose of referring the President’s advice to Parliament. At the sitting, the Speaker read out the President’s advice, made a brief statement, and then adjourned the House sine die – that is, indefinitely.

The following Monday, 4 March, 7 members of Parliament (all of those who had signed the letter of intention to move a motion of no confidence, except the two who are still in Cabinet) filed an action in the Supreme court against the Speaker, arguing that the Speaker had acted in contravention of Article 41 by denying members the opportunity to consider the President’s advice to dissolve Parliament. The members originally sought an order forcing the Speaker to call another sitting of Parliament, an order prohibiting the Speaker from dissolving Parliament until he had called another sitting at which the President’s advice to dissolve could be properly considered, and a declaration that the Speaker’s actions where incorrect.

The Speaker argued that he had complied with the requirements of Article 41 by reading the President’s advice to the House before adjourning, and that there are no express words in Article 41 requiring the Speaker to give members the opportunity to consider and debate the President’s advice.

The Chief Justice handed down his decision on Wednesday 6 March. He upheld the plaintiffs’ contentions as to the meaning of Article 41 and issued the following declaration:

‘That by his action on 1^st March 2013 in adjourning the Parliament sine die, the Speaker acted in contravention of Article 41(4) of the Constitution of Nauru, which requires that Members of Parliament on being referred by the Speaker the advice from the President to dissolve the Parliament, must be given the opportunity to consider that advice, to decide whether to adopt courses of action provided for by Article 24 and 41, and to vote on any such proposed course of action.’

The remedy which the Court granted to the plaintiffs was a declaration; it was not an injunction which could compel the Speaker or prohibit him from doing something.

Following the decision it was widely expected that the Speaker would appoint a time for a sitting to be held at which the President’s advice to dissolve would be properly referred and considered, and that the 7 day period under Article 41(4) would then begin to run from that date.

However, in spite of the Supreme Court decision, the President on 7 March advised the Speaker of the date of the proposed election under Article 39, and on 8 March, 7 days after the 1 March sitting at which the President’s advice to dissolve was read out in Parliament, the Speaker dissolved Parliament and issued writs for a general election to be held on 6 April 2013.

The plaintiffs in the first matter are expected to file further proceedings in the Supreme Court of Nauru this week in order to challenge the lawfulness of the dissolution.