The Speaker of Parliament has appealed Chief Justice (CJ) Vincent Lunabek’s decision to uphold the President’s decision not to assent to the Bill for the Constitution (Seventh) (Amendment) in the absence of a national referendum.
The State Law Office (SLO) filed the appeal yesterday, outlining seven grounds and seeking a court order to set aside CJ Lunabek’s judgment which was handed down on May 17, 2019.
In the grounds of the appeal, Acting Attorney General (AG), Arnold Kiel Loughman, said CJ Lunabek allegedly erred in law or fact that by holding that the Bill purports to change the parliamentary system by changing the makeup of the executive.
He said the makeup of the exercise is provided for under Article 40 of the Constitution.
Mr. Loughman said the Chief Justice allegedly erred in law after having considered that the language of the new Article 46A of the bill and of the Article 42 are not so dissimilar concluded (based on similarities of language) that the Parliamentary Secretaries (PS) holds the same status to that of a minister. He said CJ Lunabek also allegedly failed to take into account the difference in the appointment in that under Article 42(1) of the Constitution the Prime Minister has no discretion in appointing Ministers, whilst the Bill gives a discretionary power of appointment on the Prime Minister in appointing the PS.
The SLO stated that having considered correctly that a PS is not appointed a minister, Chief Justice concluded that a PS will hold the rank and status akin to a minister of state by his or her appointment, removal and assignment of responsibilities for the conduct of the government like a minister. The Acting AG stated CJ Lunabek allegedly erred in law or fact in that having correctly considered that the Parliamentary system of Vanuatu as per the Vohor vs AG CAC 2004 decision must include all the process of electing Members right up to the appointment of the government Ministers, concluded that the Parliamentary system also includes the appointment of the PS.
He added the CJ further allegedly erred in law and fact in holding the appointment of the PS increases the number of persons with responsibility for the conduct of the government from a maximum of 13 ministries to an additional eight PS.
Mr. Loughman argued that CJ was wrong in law for holding that the appointment of the PS increases the number of persons with responsibility for the conduct of government, Chief Justice purport to restrict the ‘conduct of the government’ to the executive.
CJ Lunabek had ruled out the Solicitor’s General submission after the Referral Authority took the case to court for its legal opinion on the validity of the Bill for the Constitution (Seventh) (Amendment).
When the Chief Justice gave his decision on the case, he said Article 46A is inconsistent with Article 42 of the Constitution in its full effect, unless a national referendum is held under Article 86 appointing the Parliamentary Secretaries (PS) of the rank and status akin to a cabinet minister it will be contrary to Article 42 of the Constitution in its effect.
He said Mr. Blake was right in his submission to the effect that in the absence of a national referendum as provided in Article 86, the Bill for the Constitution (Seventh) (Amendment), inserting the new Article 46A relating to the appointment and removal of PS and the assignment of responsibilities of the conduct of Government to PS, is inconsistent and in breach of Article 86 of the Constitution which is the supreme law of the Republic (Article 2).
A few weeks after the court ruling, Speaker Esmon Saimon toured his constituency and publicly apologized for his decision and even blamed the SLO for what he labeled as “wrong advice”.
The case will be heard in the next session of the Court of Appeal.