The Supreme Court yesterday afternoon effectively upheld the declaration of the Speaker of Parliament that member of parliament for Malekula, Gracia Shadrack, had vacated his seat after being absent from three consecutive sittings of Parliament.
The Court did not find any Constitutional rights breached.
The oral judgment of the case was delivered by Justice Oliver Saksak after hearing the substance of the constitutional case.
The issues that the Court looked at include; 1) Was the letter (written by Mr Shadrack) asking for permission or not (to be or to remain absent) as per requirements of the Members of Parliament (Vacation of Seats) Act section 2 (d); 2) Was it sufficient notice?; 3) Was sick note received by Accountant of Parliament (and not Speaker or his deputies) sufficient notice?; 4) Did the Claimant (Shadrack) get permission from the Speaker to be or to remain absent?
The Supreme Court gave a negative response to all of the issues above.
On Sunday, the Supreme Court briefly heard the urgent constitutional application lodged by Shadrack’s lawyer, Robin Kapapa to stay the declaration of the Speaker that the Malekula MP had vacated his seat.
The Court heard then that the medical certificate was delivered on Monday November 25th, the first day of the Extra Ordinary session of parliament. And a letter accompanied the sick leave after that.
Yesterday witnesses were called by each party and the witnesses were MP Gracia Shadrack; the Finance Manager for Parliament, Mr Albano Lolten; Speaker of Parliament Mr Simeon Seule; and First Political Adviser to the Speaker, Mr John Nalwang.
The Speaker was represented by Mr Nigel Morrison, while Robin Kapapa represented Mr Shadrack and Solicitor General, Mr Frederick Gilu and another colleague from State Law were present as a friend of the court.
Yesterday morning Mr Morrison told the court that there seemed to be direct conflict in the statements of Mr Albano and Mr Shadrack as to when the notice was given to the Speaker. He says the evidence needed to be tested.
Mr Shadrack was the first witness called onto the witness stand.
Upon cross examination, he said the sick leave was handed in on Monday at around 10am and the note to the Speaker was written on Tuesday but backdated to Monday to be consistent with the sick leave note, before it was stamped and sealed then handed to Mr Lolten.
The sick leave was delivered by Shadrack’s brother-in-law Tony Iauko who gave it to a secretary in Parliament, Stephanie Mahit.
Legal Counsel for Speaker, Mr Morrison asserted to Shadrack that his claim that a note was delivered to the Speaker’s Office was a lie.
But Shadrack insists the note was delivered to one of the offices under the Speaker’s Office.
Mr Morrison then produced an exhibit of a photocopy of the envelope that the sick leave and note to obtain permission were in.
He said this was contained in the statement of Mr Nalwang who, along with the Speaker, say the Speaker received the letter on Wednesday morning, not Monday or Tuesday.
Shadrack says he signed the letter on Tuesday as Deputy Speaker. The letter was typed by Ms Mahit at the parliament complex.
The next witness was Finance Manager Mr Lolten.
He confirms receiving medical certificate around 10am on Monday.
When asked whom he answers to in office he says he is under the Assistant Clerk Corporate and the Clerk.
Lolten says normally when medical certificates are handed to his office, they are related to allowances and he took it that it was for allowances purposes.
He said that same week when investigations began in the case, police confiscated the medical certificate from him.
Third witness was the Speaker Mr Seule who said he never said anything to anyone about receiving pressure from government.
When asked if Ms Mahit worked under his office he said, no her office is separate from the Speaker’s staff.
Fourth witness Mr Nalwang was the last to take the stand.
In the afternoon yesterday the closing submissions were made by legal counsels.
Kapapa argued mainly that the constitutional rights of Mr Shadrack were breached and based its case on previous cases of Boulekone v Timakata and Korman v Natapei.
Both cases related to declarations by the Speaker of the vacancy of seat.
It was argued that the Speaker did not give an opportunity for Mr Shadrack to explain himself, to ensure natural justice takes its course.
On the other hand, Mr Morrison questions whether the delivery of the letter to the Finance Officer may be deemed as giving it to the Speaker or a deputy speaker?
He also raised the issue as to whether the letter by Mr Shadrack was simply a notice or seeking permission according to provisions of the Members of Parliament (Vacation of Seats) Act section 2 (d).
In assisting the Court, Solicitor General Mr Gilu pointed the Court to Part 4 of the Parliament (Administration) Act, that separates Office of the Speaker from Parliament staff. Gilu says normally the Clerk makes a roll call at the start of each session so there is no question about whether there had been three sittings of parliament.
Justice Saksak agreed that on Wednesday morning when the Speaker received the letter of notice from Shadrack, the claimant had already been absent from three consecutive sittings.
The judge says Shadrack’s letter was a notice and not a permission as required under law.
The judge says what Mr Shadrack did to backdate the letter was “dishonest” because it was late and it was not sufficient notice.
Saksak says the sick note received by the Accountant was not sufficient notice and no permission was sought to be or to remain absent.
As we went to print Daily Post could not get confirmation if there is going to be an appeal by Mr Shadrack and his legal counsel.