Vanuatu judge to decide on ‘court abuse claim’

There is a twist to the court story of the urgent constitutional application initially filed by 4 defendants in the bribery case.

The Vanuatu Supreme Court Judge Daniel Fatiaki will first have to decide if the application was an abuse of the court process before considering the merits of the three elements raised in the application on the infringement of MPs’ constitutional rights. 

The application claimed Section 21 of the Leadership Code Act was in breach of an MP’s constitutional rights. 

Section 21 reads: “A leader must not accept a loan (other than on commercial terms from a recognized lending institution and only if the leader satisfies the lending institution's usual business criteria or in accordance with the customary practice of a particular place for or during a traditional ceremony), advantage or other benefit, whether financial or otherwise, from a person.”

In addition, the government MPs implicated in the bribery case are seeking a court order to declare that their rights were infringed when the preliminary report of the Ombudsman on the bribery case was released to the Public Prosecutor without their prior response.

But the case trialed in the Supreme Court today when Justice Fatiaki began to question the validity of the process of the application. He spoke particularly on the question of whether the application was in essence an abuse of the judicial process because an appeal had already been registered for hearing in November against Justice Mary Sey’s committal ruling to allow the prosecution to apply charges under the Leadership Code against the 15 defendants facing corruption charges.

Presiding Judge Daniel Fatiaki began to question the applicants’ counsel Gordon Avok, who was finding difficulty responding particularly when he was asked to give a “yes or no” answer on whether the current urgent constitutional application could be seen as an abuse of the court process.

The judge says there already was an appeal filed with regard to charges levelled against the defendants under the Leadership Code. He asked Mr Avok to bear in mind that while avenues were provided for such constitutional claim, the same constitution also did not give anyone the right to abuse the court process.

He also led the applicant’s counsel to agree that the issue of infringement of the rights could very well be raised with Justice Sey when making his final submission.

Mr Avok was suggesting that the issue of violation on the rights of MPs could be raised in both the appeal court and the Constitutional Court hearing separately. 

But Justice Fatiaki intervened to point out that there is no such thing as a “Constitutional Court” in Vanuatu as it may have been for South Africa. He said in Vanuatu constitutional cases only go before the Supreme Court and the Court of Appeal, and that if the same issues in the appeal application are again raised in the constitutional case, this could mount to an abuse of the court processes. 

Mr Avok argued that the appeal application was to determine the criminality of the actions allegedly committed by his clients while the constitutional case now in session was for the judge to determine whether the rights of MPs were infringed under provisions of the constitution. 

On the question of MPs’ rights to obtain a loan from any person outside of a legal financial commercial institution, Gordon could not respond clearly. Instead he said MPs should be treated fairly like any ordinary citizen.

The judge asked, “Are you suggesting that the MPs should be treated the same as ordinary citizens?” “Is an orange different from an apple?” 

He said these are both fruits but not the same fruits because an apple cannot be an orange. In comparison, the judge said that the MPs cannot be defined as ordinary citizens because they have made an individual choice to contest and be elected so it is on their own accord to be subject to the laws differently from ordinary citizens.

On the question of infringement of rights of the MPs as provided for under the Constitution, Justice Fatiaki made it clear that the defence counsel could not use one particular section of the Constitution and ignore other sections. For instance, he said the section on constitutional rights, cannot be brought up in isolation to chapter 10 of the Constitution on the Leadership Code which defines who a leader is. 

The applicants also put to the court that the Ombudsman had exercised its role beyond the provisions of the law by writing up a preliminary report on the bribery case and submitting it to the Public Prosecutor without prior response from them. 

They claim that the Leadership Code Act did not require a “Special Preliminary Report” for the Public Prosecutor to use against them.  

In the afternoon’s hearing, Judge Fatiaki accepted a verbal application for the court to deal firstly on the issue of whether or not the urgent constitutional application was an abuse of the court process. He asked the applicants to submit all supporting documents to prove it was not an abuse.

Justice Fatiaki said he raised the issue because he felt that the question of “abuse of the court process” was vital and needed very serious consideration. 

“This will be the first time for the court to make a decision on this issue but not the first time the issue was raised in past court proceedings,” he told the court.

He will also be considering the issue raised by the applicants’ lawyer on whether he had the power to make a ruling on the question of “abuse of the court process”. This means the fate of the urgent constitutional application depends on the answers to the two questions. 

A court ruling on this will be handed down on the 7th of October, the same day when final submissions will be made by defence counsels and prosecution on the main bribery case before the judgment day on 9th of October. 

Meanwhile, three more defendants in the bribery case have joined the first four in the urgent constitutional case on the infringement of the rights of MPs under the Leadership Code Act. 

Legal counsel Robin Kapapa told the court his clients, MP for Malekula - Paul Telukluk, MP for Efate - Steven Kalsakau and MP for Santo - Marcelino Pipite had filed a separate application to join the application. The initial application was filed by legal firm, Justine Ngwele and Associates on behalf of MP for Pentecost, Tony Nari, MP for Tongoa, John Amos, and MPs for Tanna, Sebastien Harry and Thomas Laken filed the constitutional case. Loop Vanautu