The Supreme Court verdict on the legality of the position of Parliamentary Secretaries (PS) in the Government will be handed down on May 27, 2019.
The case originates from the Opposition MPs’ conviction that the appointment of the PS was a direct infringement of their rights.
During the arguments yesterday, the Applicants’ legal counsel Robin Kapapa said his clients are seeking relief under Article 6 and Article 53 of the Constitution, and the creation of the PS post has infringed their rights.
Justice Dudley Aru said it is a very narrow issue and Kapapa needs to establish that the creation of the positions has infringed the Appellants’ right under the Article 6 and 53 of the Constitution.
Mr. Kapapa submitted that they have five grounds filed for argument in their case: the question of whether the Applicants have the right the bring this matter before the court; the general judicial pronouncement about the role of court to uphold the democratic principles; the purported violation of Article 39 to 43 of the Constitution and that Article 66 has also been violated while appointing the PS.
In his last point of argument Mr Kapapa intended to call three witnesses to testify on behalf of the Appellants.
They are: Opposition Leader Ishmael Kalsakau, MP Gracia Shadrack and Tanna MP Jotham Napat.
But Kent Tari, the counsel representing the first respondent, Prime Minister and the second Respondent, the Republic of Vanuatu said there is no need for the MPs to be called in this proceeding, claiming no one challenged their sworn statements filed before the court.
In his submissions, he said before dwelling on the case, Kapapa told the court that he will base his argument on the case authority of Aslam and others, a similar case in India where the Government appointed the PS and was later ruled out by the court on the basis it was unconstitutional.
He said the high court of Niue has done the same thing where the Premier has appointed the assistant ministers into his cabinet and was later challenged by the Opposition and were ordered to refund the State.
In his case, Kapapa said the Court of Appeal has uphold decisions of the Opposition on several occasions in the past that they have a legitimate right to challenge or question any suspicious breach of the Constitution by the Government.
He said it is important because it is a first case ever against the PS and took the court to the provisions carefully to establish the case.
Mr. Kapapa said Article 39 of the Constitution provides that 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.
And section 2 of the Article affirmed that the number of Ministers, including the Prime Minister, shall not exceed a quarter of the number of members of Parliament.
He said Article 42 (2) states the Prime Minister shall assign responsibilities for the conduct of government to the Ministers but not the PS. He said that the PS was not even mentioned in the Constitution and nor Article 39 provided for the PS.
He said everything done by the Prime Minister Under Article 39 must be in line with the Constitution and the law and to date there is no Article, no provisions of law that govern the PS.
Asking how it has infringed the rights of his clients Mr. Kapapa said that under the law, the Prime Ministers assigned the Ministers not the PS, but the position of PS has mirrored a Ministerial position that means all PS has the ministerial privileges.
Mr. Kapapa said once a motion is lodged, a PS will be appointed to keep the numbers from defecting from the government to the Opposition side.
He said a classic example was the case of MP Tomker Netvunei and MP Tom Noam who were with the Opposition but switched allegiance to the government after they were offered the PS posts.
He said that a letter from the Solicitor General to the Prime Minister indicated that the PM has no right but ‘if he deems fit’ – in other words if the appointment won’t affect the exercise of an MP.
He said at any time Prime Minister could appoint a PS and the sworn statement of the PS to the Prime Minister’s office, Johnny Koanapo mentioned just after the elections in 2016 thus confirming it is a political agreement to appoint the PS positions.
He said it was an agreement made at Pele called the Pele agreement but this was not mentioned in the Constitution at all.
He asked the court that if it would rule on behalf of the Appellants’, they want all the monies paid to the PS posts be refunded to the State.
In response Mr. Tari said the Appellants’ rights have never been infringed under the Article 6 and 53.
He said Mr. Kapapa has taken the court too far from the point and that all PS posts were justified under the Prime Minister’s powers, with the approval of the Council of Ministers (COM) in section 3 of the Official Salaries Act.
He said the Salaries Act has given the power to appoint an official, the offices and all benefits under its scale.
Mr. Tari said the Prime minister has come into play through those powers to create those disputed PS posts before the court.
He said the creation of the post is not an issue but the exercise of the powers of the PS would be an issue, depending on how this role is exercised.
He added the creation of the PS post has been created under the law and therefore none of the Applicants’ rights were infringed.
Less Napuati representing the third respondent in this case who are the PS claimed that they have an application to strike out before the court and it should be considered by now.
Napuati argued there is no way the creation of the post is illegal. He said some of the Applicants in the case were once PS and the issue was never illegal until now, they joined to Applicants to challenge the legality of the post.
The court has reserved its judgement for May 27.
Meanwhile the President’s case challenging the PS post will be heard before Chief Justice Vincent Lunabek on Friday this week.