By Bryan Kramer, MP. | 12 December 2020.

This is Part 2 of a series of articles providing an insight into the recent Supreme Court ruling declaring the decision to adjourn Parliament to 1 December 2020 was constitutional, the sitting of Parliament on 17 November 2020 was unconstitutional, and the order to convene its next meeting on Monday 14 December 2020.

In Part 1, I made the point that the ruling was expected based on the composition of the bench and remarks made during proceedings.

To avoid my words being misrepresented – that I was inferring the ruling was tainted or the Court compromised – I thought it appropriate to provide some context to my statement.

A judgement, or ruling, of the Court is based on two key issues: what the Court or Judge(s) understands to be the facts (truth), and the relevant laws.

If the parties are not in dispute about the facts, the Court will then move to interpret the law.

Where the facts are in dispute, the Court will be forced to first determine what it believes they are.

What the Court believes the facts to be will be based on the evidence submitted by the parties to prove or sustain them.

Where the evidence is in dispute, the Court will be forced to make a ruling on which evidence is accepted and which it rejects. The judge will accept (rely) on relevant, credible (believable) and admissible (legally obtained) evidence.

Once the Court has determined what it believes to be the facts, it will interpret the law before handing down its ruling (decision).

A judge’s understanding and interpretation of the law is usually based on their judicial ideology or philosophy. There are generally three main types of judicial philosophy: conservative, liberal and moderate.

A conservative judge will typically apply a narrow interpretation of the Constitution, also referred to as applying the letter of the law. They will be strict in enforcing Court’s procedures and rules.

A liberal judge is the opposite. They are open-minded when it comes to interpreting the law, taking the broad meaning or intent of the law rather than the letter of the law. They are also less strict when it comes to Court rules (so are less likely to dismiss cases for not following the rules) and are more focused on doing justice in the circumstances of the case rather than rely on legal technicalities.

A moderate judge is someone who sits in the middle of what is considered conservative and liberal.

How do you know if a judge is a conservative, liberal or moderate?

You study their past judgements (rulings) to gain insight into how they interpret the law, and whether they were strict, liberal or moderate.

How is this relevant to the recent Supreme Court ruling and my statements concerning the composition of the bench?

To understand the likely outcome of the decision, I took an interest in understanding the composition of the bench and whether they were conservative, liberal or moderate. This would tell me how strictly they would interpret the Constitution in the circumstances of this case.

Another important consideration when trying to understand the likely outcome of a ruling is to take note of any remarks make by a judge during the proceedings of a case. Judges will typically put questions to the lawyers concerning issues they consider important to see how the parties respond.

On Saturday 14 November 2020, the day after the Opposition moved a motion to adjourn Parliament to 1 December 2020, I discovered that Constitutional Law provides that only a Minister may move a motion to set a time and date for a meeting of Parliament.

That evening, a team of the smartest Members of Government – made up of Minister for Treasury, Ian Ling-Stuckey, Minister for Petroleum Kerenga Kua to name a few – agreed to discuss the legal and political implications of my findings and the possible strategic political play during the current political stalemate.

During those discussions, we looked at the Constitutional issues and likely court challenges that would follow.

I expressed the view that the key objection would be improper notice for recalling parliament – being given less than seven days was given. This would hinge on whether the decision of the Speaker to declare the adjournment of 1 December 2020 was unconstitutional, and therefore that Parliament should continue to sit, or whether this would amount to recalling Parliament and therefore seven days notice was required.

To mitigate this issue I suggested that NEC exercise its powers under Section 2 of the Organic Law to recall Parliament, giving seven days notice.

We noted that the law is silent on a number of issues, such as whether the Speaker can overrule a decision of Parliament, and whether the Speaker can direct that Parliament continue to sit.

We knew it would be a matter for the Court to interpret in the event that the decision was challenged. There was nothing explicit in Constitutional Law or Parliamentary Standing Orders that prevented the Speaker overruling the decision to adjourn to 1 December 2020 for being in breach of the Constitution and therefore invalid and of no legal effect. Nor was there explicit reference to the Speaker ordering a continuation of the sitting, rather than issuing notice of a recall.

So it was not surprising to read the Supreme Court ruling and find that the Court also considered the very same issues when handing down the decision.

I’ve been informed that the Attorney General is filing a slip rule application challenging the decision of the Supreme Court, which means the matter is now back in Court. I will therefore suspend further articles until the Court hears the application and hands down its ruling.



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