Vanuatu Court of Appeal will rule on the appeal of the 19 Members of Parliament (MPs) against Judge Oliver Saksak ‘s judgment on Friday this week.
Judge Saksak had dismissed their Constitutional application on their claim that the Speaker of Parliament had no power to declare the seat of a member of parliament vacant, only the Supreme Court on the 18 June.
The 19 MPs filed their application on 05 July, to the court to challenge the announcement made by the then Speaker of Parliament, Gracia Shadrack, on the operation of Vacation of Seats Act.
The applicants’ submissions were filed by their legal counsels, Ari Jenshel and Sakiusa Kalsakau.
The application sought to utilize Article 54 on election dispute, to an allegation of infringement of other rights. The applicants’ case is based on Article 54, simply that the then Speaker made a decision that their seats were vacant and his decision is incorrect because only the Supreme Court can make this decision.
Jenshel and Kalsakau argued that the Speaker’s role, therefore, is to commence proceedings in the Supreme Court when he believes that there is evidence to establish the preconditions set out in section 2(d) and to bring that evidence before Supreme Court for it to determine whether those preconditions are established.
They said that a member’s seat then becomes vacant by the operation of law as it is the Supreme Court’s decision and therefore section 2(d) is triggered if the Supreme Court agrees with the Speaker’s assessment of the evidence.
Jenshel and Kalsakau cited the following as basis of their applications. “It is apparent in the judgement that the learned primary judge decided an application that was not properly before him,” they stated.
“It was not obligatory for the appellants to produce evidence to substantiate the alleged breaches of article 17 and 21.
“That conclusion would probably have been available on the face of the provisions if the appellants’ main argument had been upheld.
“Neither was it inevitable that an article 54 determination take place.
“By framing their application as a constitutional application and specifically not invoking the determinative function of article 54 to lead evidence in terms of section 2(d) of the Act, the appellants cannot be taken to have admitted the facts surrounding their absence.
That was made clear at the first conference. Given the limited nature of the constitutional application, it could have been dismissed without a positive finding that the appellants were present in the chamber for part of the sitting on all 1, 2 and 3 June the substance of this ground will instead be pursued in the appellants’ separate election petition.
By deciding an issue that was not before him, the learned primary judge allegedly breached the audi alteram patem rule, thereby denying natural justice to the appellants and infringing their constitutional rights under right under article 5(1)(d). The learned primary judge apparently made findings of fact on the basis of the speaker’s announcement of 08 June.”
The State as the respondent agreed with Jenshel and Kalsakau on article 54, which deals with election petitions.
The Appeal Court heard there are already precedents where the Appeal Court had upheld the announcement of the Speaker on the Vacation of Seats Act, such as the case of Maxime Carlot Korman and 17 MPs against former Speaker Tahi in 1988.
SOURCE: VANUATU DAILY POST/PACNEWS