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Constitutional amendment requires referendum

The Court of Appeal has upheld the Chief Justice’s decision that any amendments to the Constitution regarding the Parliamentary Secretaries (PS) needed a referendum.

While handing down the judgment yesterday, the Court of Appeal rejected the argument presented by the Speaker in this matter that the amendment did not affect the fundamental status of the parliamentary system.

On the contrary, it was clear that changing the ratio of ministers to members was regarding the parliamentary system, and so the amending Act required a national referendum before it could be valid.

The Court of Appeal said the Bill also affects the ratio of those members who may exercise the executive functions of government, by a significant increase in them.

The court viewed that the argument presented on behalf of the Speaker is to have emphasized the composition of the Council of Ministers. The bill does not change the composition of the Council of Ministers, but in important respects it (1) creates a new category of persons called ‘parliamentary secretaries’ who may be appointed under the heading of the executive in Chapter 7 of the constitution; (2) Provides for parliamentary secretaries to be assigned “responsibilities for the conduct of government”; and (3) extends the possible number of MPs who may be responsible for the conduct of government beyond the number presently provided for in the Constitution.

By providing for additional PS of up to two-thirds of the number of ministers will permit up to eight PS. In turn, that means it provides for up to 21 MP who may be assigned “responsibilities for the conduct of government”, in addition to the PM.

Chapter 7 of the Constitution was clearly and carefully drawn to limit the number of ministers to not more than one quarter of the members of Parliament: The Council of Ministers- that is the PM and Ministers (Article 40)- is then only a relatively small proportion of all the MP. They are to have the “responsibilities for the conduct of government”. Presently the number is 14 including the PM

Therefore, not only the Bill relates to the parliamentary system as prescribed by the Constitution, but it directly does so by providing for the PM to move the “responsibilities for the conduct of government” to MPs other than to the ministers.

The court said that the direct identity of language in the Bill indicates that the responsibilities of government may be assigned by the PM to the ministers or to one or more PS.

“That obvious answer is supported by the text of the Bill, the executive power of the people of the republic is “the conduct of government”, subject of course to the parliament itself.

“So much is clear by the express words in Article 42 (2) of the Constitution.

“The Prime Minister is to assign the “responsibilities for the conduct of government” to the ministers.

“The Bill says that a PS is also to have “responsibilities for the conduct of government” as assigned by the Prime Minister.”

It was accepted by Counsel for the Speaker that the Bill, by reason of its content, had to be in Chapter 7 of the Constitution, under ‘The Executive’. It could not go sensibly into any other chapter of the constitution. It could not go, for example, into chapter 9- ‘The Public Service’ -because it did not provide for the PS to be appointed to the public service with the security of tenure system such a position carries.

The Speaker through his counsel accepted that the ‘parliamentary system’ as prescribed by the Constitution includes both the establishment of the Legislature and the establishment of the Executive.

“We have carefully considered that contention, including the refinements and nuances with which it was developed in argument.

“We do so, on the basis that the ‘parliamentary system’ must include all the processes of electing the MPs and then electing the PM and the appointment of those who can, and do, exercise the executive functions of government.

“We do not accept that the argument by the speaker is correct.

“As our introduction notes, we have come to the firm conclusion that the Bill is ‘regarding the parliamentary system’ of the Republic.

“It should not, therefore, be assented to by the President unless and until it has been supported in a national referendum.”

richard@dailypost.vu

Source: The Vanuatu Daily Post



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