Chief Justice (CJ) Vincent Lunabek has ruled out the Solicitor’s General submission claiming that the bill to add the Article 46A of the Constitution is inconsistent with Article 86 and 42 of the Mama Law.
CJ made the statement yesterday afternoon while handing down the Constitutional Case of the Referral Authority seeking relief of the validity of the seventh amendment of the Constitution bill No. 1 of 2019 that was passed in March this year.
CJ Lunabek said that the Head of State should not assent to the bill in the absence of a national referendum set out in Article 86 of the Constitution.
He furthered that there is an absence of the national referendum set out in the certification to the Referral Authority (President) by the Speaker who is the Respondent in this case.
He said that 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 will be contrary to Article 42 of the Constitution in its effect.
On March 29, 2019, Parliament met in its special to discuss the Bill for the Constitution of the Seventh amendment and passed the Bill with 41 members voted for and 7 against.
The Respondent presented the bill to the Referral Authority (President) for assent on April 5, 2019.
On April 26, 2019, the Head of State filed this Referral to the Supreme Court seeking the opinion of the Supreme Court on the constitutional validity of the seventh amendment Bill, No. 1 of 2019.
The Head of State referred the bill to the Supreme Court because he considered that assenting to the bill would be inconsistent to the article 86 of the constitution.
The first is the Bill provides for the insertion of a new Article 46A in the Constitution to provide as follows:
46A. Appointment and removal of PS (1) The Prime Minister (PM) may appoint PS from among the MPs. (2) The number of PS must not exceed two-thirds of the number of ministers. (3) The PM is to assign responsibilities for the conduct of government to the PS. (4) The PM may remove the PS from office.
Secondly, the Bill purports to amend the Constitution regarding the parliamentary system by increasing the number of persons with responsibility for the conduct of Government from a maximum of 13 ministers and the PM to 13 ministers, the PM and up to a further 8 PS.
The third is the amendment to the Constitution regarding the parliamentary system without the support of a national referendum, may be inconsistent with the provisions of Article 86 of the Constitution.
During the hearing, Solicitor General Frederick Gilu argued that the bill does not require referendum as it does not affect the parliamentary system accorded under Article 86 of the constitution.
Mr. Gilu said by adding the Article 46A to the constitution and vested that discretionary power on PM to appoint PS from amongst the members of Parliament.
He further stated that the new article would make it a discretionary requirement for the PM under the exercise of the executive branch of the Government to appoint the PS.
The Solicitor General said the position of the PS under the new Article 46A is dissimilar to that of a minister and it cannot be added nor seen as an increase in the number of ministers as required under Article 40 (2) of the constitution.
He also said the bill is consistent with the provisions of the constitution and the applicant (President) is not entitled to the relief sought in the application.
The Head of State’s Legal Counsel, Gary Blake said they are not challenging the Constitutional amendment but are after the validity of the process of the creation of the position of the Parliamentary Secretary (PS) that has been legalized by the Parliament on March this year.
During his opening, Mr. Blake submitted that the President is obliged to uphold the constitution through an oath before serving as the Head of State of this nation.
If the President has any doubt to any bill passed in the parliament, he may refer the certification for court’s legal opinion within 14 days after he received the drafted bill.
“There is much debate before the Court on whether the Constitution seventh amendment of the bill is an amendment of a provision of the Constitution regarding the parliamentary system, and if it is, it will activate Article 86 of the constitution as submitted by Mr. Blake on behalf of the Referral Authority,” CJ said.
“In the present case, I am of the opinion that the said Bill is an amendment to the Constitution regarding the parliamentary system which requires a national referendum. There is no such national referendum in relation to the bill. The facts of certification of such a bill do not disclose any.”
He further added, “Mr. Blake was right in his submission to the effect that absent a national referendum as provided in Article 86, the constitution seventh amendment of the of the bill, 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).”
CJ agreed and accepted that the judgment of the Court of Appeal of 2004 in Vohor Vs Attorney General is relevant to this case.
Meanwhile, some high profiled politicians confirmed that the Opposition Leader whose constitutional case is still pending before the court, awaiting judgement on May 27, is likely to ask for a default judgment.
The Government is spending over Vt130 million to pay the salaries of the eight Parliament Secretaries (PS) and their office staff annually.
This figure excludes other entitlements that comes with the positions they occupy.
According to the official salaries ACT (CAP 168) the annual salary of PS and office bearers is as follow: A) PS: VT5,000,400; B) Senior advisor to the PS: VT2,585,300; C) Technical Adviser to the PS: VT2,202,300; D) Assistant Senior advisor to PS: VT1,838,400; E) Second Assistant Senior adviser to PS: VT1,573,600; F) Secretary Typist to PS: VT 1,386,800; G) Driver to the PS: VT1,195,500 and finally H) Residence cleaner to the PS: VT944,600.
Part of PS’ salaries were sourced from the Emergency Fund.
Apart from their salaries they also have some privileges. The benefits that go with each of these positions are almost identical.
The PS position is seen as a backdoor to entry to the council of minister since the position is to assist a minister and the MP holding it enjoys the privilege of a junior minister.
There were no formal provisions for the PS positions in the Constitution of the Republic of Vanuatu since its creation in 2012, until March 29 2019 when parliament voted to amend the constitution and legalise it.
After the 2016 elections, the leaders in the current coalition government met at Pele Island on north of Efate and decided to increase the number of PS, to assist seven ministries.
The Salwai-led Government increased the number of PS to eight in the 11th legislature, as follows:
a) PS to the PM responsible for International Development Cooperation
b) PS responsible for Provincial Affairs
c) PS responsible for Education
d) PS responsible for Fisheries
e) PS responsible for Maritime Affairs
f) PS responsible for Revenue Initiatives
g) PS responsible for Health
h) PS responsible for Climate Change.