COURT REINSTATES VANUATU PRIME MINISTER

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Speaker’s action to unseat Natapei ruled unconstitutional

By Lora Lini-Napuati PORT VILA, Vanuatu (Vanuatu Daily Post, Dec. 7, 2009) – In Vanuatu, Prime Minister Edward Natapei can keep his seat, according to the decision of Chief Justice Vincent Lunabek who ruled Saturday that the Speaker’s decision to unseat the PM on 27 November 2009 was ‘unconstitutional and of no legal effect’.

However just hours after the handing down of the judgment the speaker confirmed at a press conference he will be lodging an appeal.

Parliament is scheduled to meet this week for the budget session. But the public can expect more fireworks with the government lodging a counter motion against the speaker.

Daily Post was told the speaker could choose to rule out the government’s motion to oust him, a decision that will most likely end up being challenged further in court.

Meanwhile the ruling by the Supreme Court followed an urgent Constitutional application by Natapei’s lawyer Edward Nalyal last Friday to challenge the legality of the decision of the Speaker while Natapei was on an overseas trip.

Natapei’s lawyer applied and sought three orders from the Supreme Court.

Firstly that the "decision of the Speaker of Parliament on Friday 27 November 2009 be declared "unconstitutional".

Secondly that the "decision of the Speaker of Parliament to declare the seat of MP Natapei vacant was unlawful, invalid and of no effect".

And thirdly, the Supreme Court "quash" the decision of the Speaker to use his power to unseat Natapei’.

Lunabek said his ruling was based on the examination of facts and sworn statements submitted by the two Counsels, Edward Nalyal acting on behalf of PM Natapei and Bill Bani on behalf of the Speaker.

The facts included transcripts from the parliament proceedings from November 23 to 27 2009.

The Chief Justice said there were three simple issues that needed to be addressed; "whether or not verbal information amount to sufficient notice to the Speaker of Parliament; whether the First Respondent objected to the Applicant to go overseas and gave opportunity to respond to the announcement; and whether or not the Applicant’s fundamental right provided under Article 5 of the Constitution sub-article (d) and the provisions of Article 39 were infringed?

Other facts of the case also showed that the Applicant had lost his seat in Parliament by operation of Section 2 (d) of the Members of Parliament (Vacation of Seats) Act 1983.

That Section reads:

"2. A member of parliament shall vacate his seat therein (d) 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 remain absent."

Mr. Nalyal argued that Section 2 (d) of the Act was "unconstitutional" and therefore invalid in that the Applicant was overseas and the Speaker of Parliament did not give him the opportunity to respond to allegations that he did not give notice to the Speaker of Parliament that he would not be able to attend Parliament.

The court considered that the Speaker did not dispute facts presented that the Prime Minister did inform him that he was going to be away overseas and would not be able to attend the Extra Ordinary Session.

Lunabek said he was satisfied the ‘the First Respondent was personally informed orally by the applicant of his absence".

"The First Respondent (the Speaker) acknowledged in Parliament that the Applicant was overseas and that the Leader for Government Business would only be sought after the Applicant returned," CJ Lunabek said.

The Chief Justice said that facts presented through transcripts from the parliament proceeding clearly showed that the First Respondent acknowledged during Parliament session the presence of an Acting Prime Minister.

He said in his view these facts amounted to sufficient notice of the PM being away on official duty.

The Chief Justice also said the Court also considered a public broadcasting on Television Blong Vanuatu where Natapei himself informed the nation he would not be attending parliament as he would be overseas on official duty.

The Chief Justice said that it was important to note that the there are written notices and that requests were made to the Office of the Speaker.

He said that although it is important to make requests in writing because it has been the practice and procedure of Parliament it was also important that the Office of the Speaker give permission to MPs to reduce the effect of Section 2 (d) under the Vacation of Seats Act 1983.

The Chief Justice said the Courts will leave the issue of a Member obtaining permission from the Speaker of Parliament rather than just giving notice for Parliament to deliberate on and amend if necessary to reduce the effect of Section 2 (d) of the Vacation of Seats Act 1983.

In light of the ruling that was handed down by the Supreme Court on Saturday afternoon, the Speaker informed media that his lawyers will appeal the decision.

The Speaker said that Standing Orders of Parliament are clear as well as Section 2 (d) of the Vacation of Seats Act 1983.

He said that he welcomes the Supreme Court ruling but will continue with an appeal.

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