Opposition at Court

(R-L) Lawyer representing MP Gracia Shadrack, Robin Kapapa; Deputy Leader of Opposition, Ronald Warsal; Leader of Opposition, Ishmael Kalsakau; MP Gracia Shadrack; and MP Jay Ngwele at the Court premises yesterday

The Supreme Court yesterday allowed the constitutional application for stay on the declaration by Speaker of Parliament, Seoule Simeon, that MP Gracia Shadrack’s seat is vacant.

This means MP Shadrack can attend parliament sittings pending the final determination of the matter by the Supreme Court on Friday this week.

The Speaker’s declaration was made in parliament after it was alleged that Shadrack, the applicant in the filed urgent application, had been absent for three consecutive sittings without any notice of absence to the Speaker or Clerk of Parliament.

Members of Parliament (Vacation of Seats) Act section 2 (d), states, “A member of Parliament shall vacate his seat therein if he is absent from three consecutive sittings of Parliament without having obtained from the Speaker, or in his absence, the Deputy Speaker the permission to be or to remain absent”.

Yesterday the Court heard that MP Shadrack did inform Parliament about his absence on Monday before the decision by the Speaker on Wednesday last week.

Lawyer Kapapa stated that the medical certificate was received by the Parliament secretariat on Monday at around 10am by Mr Albano, Finance Manager of Parliament as the Clerk and Speaker were in Parliament chamber.

He says on that afternoon the same day Mr Albano informed the Clerk of Parliament of the Medical Certificate.

The Applicant’s lawyer cited the 2009 case between late Edward Natapei and Maxime Carlot Korman as First Respondent and the Republic of Vanuatu as the Second Respondent.

In the Natapei and Korman case, the Supreme Court stated where there is no breach of the Constitution the Courts have no power to inquire into the validity of the Legislative Assembly’s internal proceedings or the actions of Speaker in these proceedings. But where there is breach of a provision of the Constitution or the infringement of a fundamental right, the Supreme Court has the power to effectively enforce or remedy the breach of the Constitutional provision. In such case the Supreme Court is then duty bound to interfere and uphold the Constitution.

Kapapa says it was the Leader of Government Business that first alerted the Speaker on the floor of parliament of the absence of MP Shadrack.

He says the manner in which the decision was taken was bias as the decision to remove did not come direct from the Speaker.

Mr Kapapa told that court that when the Leader of Government Business was served yesterday he alleged that he received pressure from the government.

A total of six witness statements have been submitted on the Applicant’s side, their lawyer informed Daily Post.

These include a witness, Jimmy Allan, that reportedly mentioned on Facebook that an MP was to be ousted in parliament before the decision was made by the Speaker.

Solicitor General, Frederick Gilu, who represented the Speaker of Parliament and the Republic of Vanuatu tried to assist the court on the interim orders to maintain the status quo pending the final hearing of the matter.

He also mentioned section 2 (d) of the Members of Parliament (Vacation of Seats Act).

But with the turn of events in court Mr Kilu indicated that the Attorney General’s office is likely to assist the Speaker of Parliament to find another lawyer to represent him.

In the Natapei v Korman case, the then Attorney General was present in Court as a friend of Court.

Justice Oliver Saksak said that after hearing submissions from both sides on the urgent constitutional application, there is no doubt that there is infringement of constitutional rights. Justice Saksak heard the urgent application on Saturday but the legal counsel for the respondents informed the Court that he had no instruction and he needed time to file a sworn statement in response.

So the matter was adjourned to yesterday at 3pm to allow for the sworn statement to be filed.

Yesterday after hearing legal counsels for the parties involved, Justice Saksak issued orders after being satisfied that;

“a) There have been breaches of the applicant’s constitutional rights as alleged under Articles 5 (1)(d), 17 (1), and 22,

“b)The Court has wide jurisdiction to hear the substance of the case where constitutional rights are infringed, and

“c) Parliament as the Supreme tribunal in the land must adhere to principles of natural justice.”

Justice Saksak then Ordered that:

“1. The application for stay be allowed and the relief sought be granted.

“2. The decision of the First Respondent dated 27th November 2019 declaring the Parliamentary seat of the Applicant herein vacant be stayed pending the final determination of the matter.

“3. The matter be set down for hearing on Friday 6th December 2019 at 9.30am at the Court in Dumbea Hall.

“4. Any further sworn statements by the Applicants be filed and served by 4.00pm Tuesday 3rd December 2019.

“5. Any responses by the respondents be filed and served by 4.30pm Thursday 5th December 2019.”

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