Court bid sought on Prime Minister's post

By ISAAC NICHOLAS

PARLIAMENT will file a special Supreme Court reference to determine whether the law permits a person who is not a member of parliament to be prime minister, The National reports.
It will ask the court’s opinion on whether parliament has the power, by virtue of the Constitution and any other constitutional law, to rescind its previous resolutions and decisions.
Leader of government business Moses Maladina moved the motion seeking parliament’s approval last Friday, claiming Sir Michael Somare ceased to be an MP after Dec 9, 2011, and cannot hold the office of prime minister.
“I have taken advice and believe that the heart of the matter is the question of whether Sir Michael is still an MP after Dec 9, 2011,’’ he said.
“This is the date parliament endorsed a motion to rescind its earlier decision of May 17, 2011, which granted leave of absence for Sir Michael for the May meeting of parliament.
“We must realise that Fred Yakasa and the others are lying on the opinion of the court on Dec 12. The court made that opinion without being informed of the decision of parliament on Dec 9, 2011.
“Secondly, the court opinion did not invalidate any decisions that were taken by our government between Aug 2 and Dec 12, 2011.
“This means the court was not informed of the decision of parliament on Dec 9 to rescind its earlier grant of leave for Sir Michael.”
In his motion to parliament, Maladina said the court had only made a ruling based on a set of facts as of Aug 2, 2011.
He said everything that transpired after Aug 4 was not negated by the court.
“If Sir Michael was not a member of parliament after Dec 9, 2011, then the court has no power to install an ordinary citizen who is not an MP into the office of the prime minister,” Maladina said.
“The court’s opinion is good but the orders are not enforceable,” Maladina said.
“We have faith in the court system and must, therefore, go to court and seek redress.
“All these claims by Yakasa, (Hudson) Ramatlap and (Gabriel) Yer will fail automatically if the court agrees that Sir Michael ceases to be a member of parliament as of Dec 9, 2011.
“This parliament has the power to make laws. There is only one way that these laws can be set aside. This happens if the court finds that any sections, or parts of these amendments, are unconstitutional.
“The laws are superior to ordinary opinions or rulings of the court. Subject to the question of constitutionality, the laws made by parliament are paramount.
“We all know that rulings, decisions or opinions of any court can be negative by a law made by parliament.”
Maladina said neither Sir Michael nor Sir Arnold Amet had filed proceedings in court to challenge the validity of these laws.
“Surely, if Sir Michael ceases to be an MP after Dec 9, 2011, then the appointments by him of Yakasa, Yer and others are automatically null and void.
“Let us not play around with the cases of Yakasa, Yer, Ramatlap and (Graham) Osborne. Each of the claims is entirely dependent on whether Sir Michael is still an MP.
“If he is no longer a member of parliament, as this parliament has ruled, then he cannot hold the office of prime minister and appoint ministers, departmental heads and constitutional office holders.”
He said the motion was for parliament to file a special Supreme Court reference under section 19(1) of the Constitution:

• Authorise the speaker to sign the reference on behalf of parliament to make such amendments to the reference as he considers necessary or appropriate from time to time;

• Authorise the speaker to appoint a law firm and lead counsel to act for and represent parliament in this reference; and

• To endorse the following questions for an opinion from the Supreme Court:

• Does parliament have the power, by virtue of the Constitution and any other constitutional law, to rescind its previous resolutions and decisions? and

• Does section 141 of the Constitution permits a person, who is not a member of parliament, to hold office as prime minister?