The Supreme Court has dismissed the claims of the Members of Parliament (MPs) in the Opposition bloc, the applicants in the case, who claimed the appointments of the Parliamentary Secretaries (PS) violates the Constitution.
The Applicants who were represented by legal counsel Robin Kapapa based their application on grounds that the appointment of the PS is not provided for under the Constitution of Vanuatu or under any law enacted by Parliament, yet their salaries and benefits are being paid from public funds.
They also assert that the PS are being paid additional salaries and benefits on top of their salaries as MPs in order to support the Prime Minister.
In upholding the submissions of the First, Second and Third Respondents, Justice Dudley Aru considered two issues in this case.
The first is whether the applicants’ rights under article 5 (1) (d) (e) (j) and (k) of the Constitution have been infringed and Secondly, whether article 39, 40, 42, 43, and 66 (1) (d) a provision of the Constitution has been infringed in relation to the applicants.
As he cited Article 5 and 6(1) of the constitution, Justice Aru said each applicant must individually demonstrate that his right guaranteed to him by the Constitution has been, is being, or is likely to be infringed by the appointment of PS.
“There is no evidence before me to that effect,” he stated.
He added that although there were evidences filed by applicants namely MP Ishmael Kalsakau, MP Jotham Napat and MP Gracia Shadrack, their evidence failed to demonstrate how each of them were affected by the infringement.
Justice Aru therefore ruled out the infringement to the applicants’ rights under Article 5 (1) (d) (e) (j) and (k).
Counsel Kapapa, submitted that the Office of PS is not established under the Constitution or any Act of Parliament, thus using of the public funds to pay for the salaries and benefits of PS is a violation of article 25 of the constitution which prohibits expenditure of the public funds expect as provided by law.
The Applicants have also submitted that the appointments of PS have increased the number of ministers, contrary to article 40 (2) which limits the number of ministers to a quarter of the number of members of parliament.
But the Supreme Court Judge ruled based on the evidence before him that the PS are not part of the Council of Ministers.
“Executive power is only vested in the PM and the Council of Ministers as provided under article 39. They are the ones collectively responsible to Parliament pursuant to article 43. The number of Ministers has not exceeded a quarter of the number of MPs as provided under article 40 (2).”
The third respondents who are the current and former PS fall within the same category as the political appointees in the above case. Their salaries and benefits are set out in the Official Salaries Act, but, the position is not established separately.
“If the applicants are serious that the Government is using the position of PS to buy votes or to bribe individuals to defeat motions, there are other processes provided by law readily available.”
The position of the PS was created in 2013 by the then Prime Minister, Sato Kilman after seeking advice from the State Law. Former MP, Moana Carcasses was the first PS appointed in 2013.
Further in 2016, PM Salwai appointed the third defendants as PS. Seven PS positions had their own staff which range from: Senior Advisors; Technical Advisors; Assistant Senior Advisors; 2nd Senior Advisors; Secretary Typists; Drivers to Residence Cleaners.
All the PS signed contracts of employment and were paid salaries and benefits in accordance with the Official Salaries Act.
In his remarks after the court ruling yesterday, Leader of Opposition, Ishmael Kalsakau said he “respected the court decision” but he also admitted that the outcome of the judgment was not what he expected.
“We lost our case. The Court has ruled that the Prime Minister has the right under Article 39 (of the Constitution) to appoint PS and their staff.”
MP Kalsakau believes the Judge did not dwell enough on their points. “Perhaps, our points were not well argued before the judge,” he said.
He said this is a serious issue and will not be taken lightly.
Kalsakau said the determination on whether or not to proceed with the case to the Court of Appeal would be made known in the coming days.
“But the fact which continues to ring in our minds is how a person is in the island continued to receive salaries paid by the government.
“We will read the judgment before we go to the Court of Appeal.
“I believe we will have grounds to appeal. First is the right to appoint and motive behind the appointment. Evidence has shown that appointments are increased whenever there are motions lodged.”