The Supreme Court has reserved its judgment on the Referral Authority (Head of State)’s decision to seek legal opinion on the Constitutional Amendment no.7 to Monday next week.
The Head of State’s Legal Counsel, Gary Blake said they are not challenging the Constitutional amendment but are after the validity of the process of the creation of the position of the Parliamentary Secretary (PS) that has been legalized by the Parliament on March this year.
Before the hearing, Chief Justice Vincent Lunabek asked both counsels to stick to the facts surrounding the case.
He said under the law, it is the duty of the President to assent to any bill and at the point of any doubt may refer the bill to the court for legal opinion.
The President after regarding the Article 64 of the Constitution consider the bill to be inconsistent and referred the matter to the Supreme Court.
He said the certification of the bill that was received by the President identified compliance with the elements of Article 85 of the Constitution and that met the required the number of the parliament when the bill was considered and there were records of number of the vote in favour.
He said what the certification did not do was address in the Article 86 of the Constitution and in other words the view was taken by the speaker that no referendum was required in connection with this bill to amend the Constitution.
Mr. Blake said after the President saw the bill and the certification of the bill with what Article 86 provides and in regards to his core duty to uphold the Constitution, he referred the bill to the court.
Article 86 of the Constitution provides that ‘A bill for an amendment of a provision of the Constitution regarding the status of Bislama, English and French, the electoral system, or the parliamentary system, passed by Parliament under Article 85, shall not come into effect unless it has been supported in a national referendum’.
He said Article 86 of the Constitution imposes an obligation in regard to the parliamentary system to require a support of a referendum.
He said in this case there was an absence of the national referendum and claimed that the bill did not make it through the requirement of Article 86 therefore he did not assent to it.
He said Article 16 (4) of the Constitution has given the power to the President to take any bill to the court for legal opinion.
It says ’16. Power to make laws - (4) If the President considers that the bill is inconsistent with a provision of the Constitution, he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution’.
He reminds the court that the President took an oath to uphold the Constitution as the mama law of the country and that Constitution give him power to take seek legal opinion if he has doubt before assenting to any bills that are contrary to the Constitution or any of its provisions.
Mr Blake submitted that in this case the Parliament’s Act sets out the process for assenting to a legislation and section 13, requires a certification to a special vote for a referendum.
He said when Constitution is required a bill passed by the parliament after passing by special majority of special quorum present or such requirement supported by a referendum the Speaker shall before present the bill to the President for assent, certified whatever is appropriate or whatever the reason to the Head of State for the bill being so supported.
He said that in this case the certification was received and the President’s query was that the amendment which will be affected were in regards of the Parliamentary system and Article 86 imposed to hold a referendum and therefore the President could not assent to the bill.
In response, the Solicitor General Fredrick Gilu who appeared on behalf of the Speaker with Kent Tari referred to chapter 7 of the Constitution:
‘(1) the executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law.
(2) The Prime Minister shall keep the President of the Republic fully informed concerning the general conduct of the government of the Republic.
(3) The President of the Republic may refer to the Supreme Court any regulation which he considers to be inconsistent with the Constitution.’
He said that by filing the Constitutional Referral, the Referral Authority asserted that the bill shall not come into effect unless it has been supported in a national referendum as it would affect the Parliamentary System rooted under Article 86 of the Constitution.
He said the bill provides for the insertions of a new Article 46 (A) in the Constitution and purports to amend the Constitution regarding the parliamentary system by increasing the number of persons with responsibility for the conduct of government from maximum of 13 State Ministers and the Prime Minister up to eight Parliamentary Secretaries.
He said that to amend the Constitution regarding the parliamentary system without the support of a national referendum is inconsistent with the provision of Article 86 of the Constitution.
He outlined the case authority Vohor vs Attorney General (2004) in support of his submission claiming that the Parliamentary system has been dealt with in that case.
He referred to the principal set out in the case ‘the parliamentary system was the one adopted by the Republic of Vanuatu on Independence Day and that system must include all processes of electing Members of Parliament right up to the appointment of government ministers’.
He taking into consideration the similarity of the present case he said that the Appeal court has dealt with the matter.
He asked the court to consider whether the new provisions of the Article 464 as outlined in the bill, affects the parliamentary system which if it does, would render a national referendum under Article 86 of the Constitution.
The new Article 46A reads ‘Appointment and removal of Parliamentary Secretaries:
(1) 'The Prime Minister may appoint Parliamentary Secretaries from amongst the member of Parliament.
(2) The number of Parliamentary Secretaries must not exceed the quarter of the number of Ministers.
(3) The Prime Minister is to assign responsibilities for the conduct of government to the Parliamentary Secretaries.
(4) The Prime Minister may remove the Parliamentary Secretary from office’.
He said that by Article 39 of the Constitution, it is clear that the executive power of the people of Vanuatu is vested to the Prime Minister and Council of Ministers and is to be exercised as provided under the Constitution or a law.
He said Article 40 and 46 established the Council of Ministers and its composition and provided for the appointment of the Prime Minister, the appointment of the Ministers and their removal.
It also provides for the requirement of collective responsibilities of the Ministers to the Parliament and the vote of no confidence in the Prime Minister.
He said that contention of the Respondent that the new Article 46A of the Constitution would not affect the parliamentary system and does not require a national referendum under Article 86.
In his alternative submission, he said that if the court is of opinion that the bill will affect the Parliamentary system, it is their submissions that such finding should not affect the exercise of passing the bill by the Parliament.
He said the bill will only need a national referendum before presenting it to the Referral Authority for his assent as set out in Article 86 of the Constitution.
The court will resume to hear the judgment on May 20, 2019.