Solomon Star News
27 January 2011
Petition filed
THE Opposition group had filed their petition against Prime Minister Danny Philip to the governor general Sir Frank Kabui Tuesday this week.
Press secretary to Governor General Nigel Maezama confirmed to The Solomon Star that the petition had been received by Sir Frank on Tuesday morning.
Asked what steps, the Governor General would be taking to handle the case Mr Maezama said at this stage it was still unknown.
“We just have to wait and see but as far as I know the ball is in the Prime Minister’s court. “The Prime Minister only have two options and that is to resign (which he is unlikely to do) or call parliament,” he said.
The opposition press secretary Deli Oso confirmed that a total of 25 Member of Parliament (MP) signed the petition.
This included the five ministers who recently resigned and joined the opposition camp.
They are former forestry minister Douglas Ete, former police minister James Tora, former fisheries minister Bodo Dettke, former housing, lands and survey minister Martin Sopage and former public service minister Stanley Sofu.
The Solomon Star understands the petition was to advice the Governor General to intervene and call parliament as ministers have no confidence in the Prime Minister Danny Philip and he do not have the number to rule.
However, based on a court injunction in 2007 filed by then Prime Minister Manasseh Sogavare when he was overthrown by the Sikua government, the court had ruled that only the Prime Minister has the authority to call parliament.
Prime Minister Danny Philip earlier this week said he would never step aside as the government was serious in bringing the country back on its feet.
“Only I can convene parliament. The Governor General doesn't have the power to compel me.
“In certain circumstances where the country is at risk, they have insurrection or the government has definitely become dysfunctional because there's absolutely no one to do the job, yes.
“But under normal circumstances I think the situation is still ok.
“I have no reason to resign because we have a program. Are you going to push another resolution to extend the resolution that we were passed last year for three months of spending?
“How many times, by electing prime minister, who will be your prime minister? You've got five or ten people in there wanting to be prime ministers,” Prime Minister Philip said.
Press secretary to Governor General Nigel Maezama confirmed to The Solomon Star that the petition had been received by Sir Frank on Tuesday morning.
Asked what steps, the Governor General would be taking to handle the case Mr Maezama said at this stage it was still unknown.
“We just have to wait and see but as far as I know the ball is in the Prime Minister’s court. “The Prime Minister only have two options and that is to resign (which he is unlikely to do) or call parliament,” he said.
The opposition press secretary Deli Oso confirmed that a total of 25 Member of Parliament (MP) signed the petition.
This included the five ministers who recently resigned and joined the opposition camp.
They are former forestry minister Douglas Ete, former police minister James Tora, former fisheries minister Bodo Dettke, former housing, lands and survey minister Martin Sopage and former public service minister Stanley Sofu.
The Solomon Star understands the petition was to advice the Governor General to intervene and call parliament as ministers have no confidence in the Prime Minister Danny Philip and he do not have the number to rule.
However, based on a court injunction in 2007 filed by then Prime Minister Manasseh Sogavare when he was overthrown by the Sikua government, the court had ruled that only the Prime Minister has the authority to call parliament.
Prime Minister Danny Philip earlier this week said he would never step aside as the government was serious in bringing the country back on its feet.
“Only I can convene parliament. The Governor General doesn't have the power to compel me.
“In certain circumstances where the country is at risk, they have insurrection or the government has definitely become dysfunctional because there's absolutely no one to do the job, yes.
“But under normal circumstances I think the situation is still ok.
“I have no reason to resign because we have a program. Are you going to push another resolution to extend the resolution that we were passed last year for three months of spending?
“How many times, by electing prime minister, who will be your prime minister? You've got five or ten people in there wanting to be prime ministers,” Prime Minister Philip said.
By DOUGLAS MARAU
Free at last
Former fisheries minister and Member of Parliament for North Malaita Jimmy Lusibaea finally free from his sentences as granted by the Acts and the regulations.
This means he now has the constitutional rights to fully perform his role as an MP.
Speaking to the Solomon Star, the office of the national speaker has confirmed that the case of Lusibaea has been cleared in accordance to the relevant laws that the constitution is abided to.
The office confirms that his effective sentence of one month one day is serving outside of jail under his license to release.
The office said with the case now cleared there should be no public doubts or questions relating to this case as the process is legally binding to the relevant laws of the state which the parliament uphold.
This means he now has the constitutional rights to fully perform his role as an MP.
Speaking to the Solomon Star, the office of the national speaker has confirmed that the case of Lusibaea has been cleared in accordance to the relevant laws that the constitution is abided to.
The office confirms that his effective sentence of one month one day is serving outside of jail under his license to release.
The office said with the case now cleared there should be no public doubts or questions relating to this case as the process is legally binding to the relevant laws of the state which the parliament uphold.
“Nothing is being breached here and nothing was done wrong within the constitution and there should be no public doubts and misperception of this as it is straight forward and constitutionally rightful in the process that we takes to deal with this case”, a lawyer from the speakers office said.
By John Atai
Opposition plans to challenge Lusibaea’s remission
THE opposition is on fire, as the majority of support easily tilts to its side and they vowed to legally pursue the remission granted to Jimmy Lusibaea.
Opposition’s press secretary Deli Oso confirmed that the opposition is seeking legal advice on the matter.
“Yes legal advice is being sought after which, we will challenge the matter in court,” Mrs Oso said.
The Member of Parliament for North Malaita's two year nine month sentence imposed last year by the High Court has been reduced to one month one day, after being granted a 95 percent remission by the minister for police and national security.
The sentence was reduced when he was released on licence on the 14th this month.
Former police minister James Tora granted Mr Lusibaea further remission through powers vested on him under Section 38 of the Correctional Service Act and Regulation 198 of the Correctional Service Regulation.
The remission is in addition to a one third remission to the sentence imposed by the high court, granted to every prisoner under section 37 of the correctional services act.
Speaker of parliament Sir Allan Kemakeza earlier stated that the correctional service act defines effective sentence as the term of imprisonment that a prisoner is to serve after taking into account remission granted under the act, thus it is this effective sentence of one month one day that Mr Lusibaea is released on licence to serve outside prison.
Sir Allan said because the effective sentence is now one month and one day, Mr Lusibaea can still perform functions and responsibilities as a parliament member as the sentence is less than 6 months.
Under the constitution, an mp is required to vacate his or her seat if the sentence imposed by court is six months or more.
Sir Allan said the police minister exercised his powers under relevant laws and that he as the speaker does not have the legal mandate to decide otherwise.
Opposition’s press secretary Deli Oso confirmed that the opposition is seeking legal advice on the matter.
“Yes legal advice is being sought after which, we will challenge the matter in court,” Mrs Oso said.
The Member of Parliament for North Malaita's two year nine month sentence imposed last year by the High Court has been reduced to one month one day, after being granted a 95 percent remission by the minister for police and national security.
The sentence was reduced when he was released on licence on the 14th this month.
Former police minister James Tora granted Mr Lusibaea further remission through powers vested on him under Section 38 of the Correctional Service Act and Regulation 198 of the Correctional Service Regulation.
The remission is in addition to a one third remission to the sentence imposed by the high court, granted to every prisoner under section 37 of the correctional services act.
Speaker of parliament Sir Allan Kemakeza earlier stated that the correctional service act defines effective sentence as the term of imprisonment that a prisoner is to serve after taking into account remission granted under the act, thus it is this effective sentence of one month one day that Mr Lusibaea is released on licence to serve outside prison.
Sir Allan said because the effective sentence is now one month and one day, Mr Lusibaea can still perform functions and responsibilities as a parliament member as the sentence is less than 6 months.
Under the constitution, an mp is required to vacate his or her seat if the sentence imposed by court is six months or more.
Sir Allan said the police minister exercised his powers under relevant laws and that he as the speaker does not have the legal mandate to decide otherwise.
“On the question of whether the minister had exercised his discretionary power in a lawful manner, this is for the courts to decide and that only the courts have jurisdiction to make a decision on such matters,” the speaker said.
By EDNAL PALMER
Can Lusibaea perform his functions as a member of parliament?
Solomon Star View Point, 26 January, 2011
In short, my answer is yes. I will explain why I am of that view.
As the Speaker of Parliament I think that it is only fair to the public that Parliament’s position is made clear and to explain why I hold that position.
To fully understand the issue it is best that we look at the chronological order of events.
Hon. Lusibaea was charged with unlawful wounding and assaulting a police officer in the execution of his duty on 14 February 2007.
These offences were committed on 1 September 2000. He was granted bail on 22 October 2007.
A trial date was set sometime in September 2010. He was put in custody on 16 November 2010 after he entered a plea of guilty on the first day of trial.
The High Court sentenced him to 2 years 9 months, a total of 33 months on both charges.
On December 3 Hon. Lusibaea lodged an appeal against his sentence. It became apparent that the Court of Appeal will not hear his appeal soon so he wrote to my office seeking an extension of 30 days to pursue his appeal (under section 51 (1) of the Constitution).
The sentence handed by the court is more than the 6 months that is required by the Constitution for a MP to vacate his seat.
Hon. Lusibaea was caught by section 51 (1) of the Constitution which states that if a MP is sentenced to a term of imprisonment exceeding 6 months he shall immediately cease to perform his function as a MP and his seat shall become vacant at the expiration of 30 days from the date of sentencing.
Thus, Hon. Lusibaea’s seat would have been vacant on 30 December 2010. However, section 51 (1) has a proviso that allows an MP appealing conviction or sentence to request the Speaker for an extension of time to pursue an appeal.
It was apparent that the Court of Appeal will not sit until sometimes in March. To avoid vacating his seat, therefore, Hon. Lusibaea applied to my office for an extension of time to pursue his appeal.
This was on December 9 2010 before the initial 30 days expired.
I exercised my discretion under section 51 (1) and granted him an extension of 30 days which will expire on 30 January 2011. At that point, therefore, the North Malaita seat was not vacant.
However, Hon. Lusibaea was precluded from performing his function as an MP unless he satisfies any of the grounds set out under section 51 (2) of the Constitution. At that time that was not the case.
I learned from the media that Hon. Lusibaea had been released on licence on January 14 2011. On January 20 2011, I received a letter from Hon. Lusibaea’s lawyer that the Minister of Police, National Security had granted a further 95 % remission to Hon. Lusibaea’s effective sentence. This was the first time that I had been made aware of this and it changed my initial view because the facts have changed. Let me explain myself why this is so.
Under section 37 of the Correctional Service Act every prisoner is granted a one-third remission to the sentence imposed by the court.
Section 38 of the same Act and Regulation 198 of the Correctional Service Regulation gives the Minister power to grant further remission. Thus, one-third remission of 33 months is 11 months.
The balance would then be 22 months. Considering that High Court backdated Hon. Lusibaea’s sentence to 11 March 2010 the 14 2011 is totaled up to 10 months.
When the Minister granted a further 95 % to Hon. Lusibaea’s effective sentence he is left with 1 month 1 day. This is the effective sentence.
The Correctional Service Act defines effective sentence as “the term of imprisonment that a prisoner is to serve, after taking into account remission granted under this Act.”
Thus, it is this effective sentence (1 month 1 day) that Hon. Lusibaea is released on licence to serve outside prison.
In light of this information I am of the view Hon. Lusibaea no longer falls within the ambit of section 51 (1). The relevant provision of the Constitution now is section 51 (2) which provides, “If at any time before the member vacates his seat he is granted a free pardon or his conviction is set aside or his sentence is reduced to a term of imprisonment of less than six months or a punishment other than imprisonment is substituted, his seat in Parliament shall not become vacant under the provisions of this section, and he may again perform his functions as a member of Parliament.” [My emphasis]
Hon. Lusibaea’s sentence was reduced to a term of imprisonment that is less than 6 months by the Minister under the Correctional Service Act 2007 and Correctional Service Regulation 2008.
Therefore, Hon. Lusibaea’s seat is not vacant and he may again perform his functions as a MP as provided for by the Constitution d unless decided otherwise by the High Court.
I hope this clarifies the Speaker’s position on this matter. On the face of things the Minister has exercised his powers under the relevant laws.
I do not have the legal mandate to decide otherwise. The question of whether the Minister exercised his discretionary power in a lawful manner is for the courts to decide. Only the courts have jurisdiction to make a decision on such matters.
Therefore, as it stands Hon. Lusibaea may again perform his functions as a MP.
As the Speaker of Parliament I think that it is only fair to the public that Parliament’s position is made clear and to explain why I hold that position.
To fully understand the issue it is best that we look at the chronological order of events.
Hon. Lusibaea was charged with unlawful wounding and assaulting a police officer in the execution of his duty on 14 February 2007.
These offences were committed on 1 September 2000. He was granted bail on 22 October 2007.
A trial date was set sometime in September 2010. He was put in custody on 16 November 2010 after he entered a plea of guilty on the first day of trial.
The High Court sentenced him to 2 years 9 months, a total of 33 months on both charges.
On December 3 Hon. Lusibaea lodged an appeal against his sentence. It became apparent that the Court of Appeal will not hear his appeal soon so he wrote to my office seeking an extension of 30 days to pursue his appeal (under section 51 (1) of the Constitution).
The sentence handed by the court is more than the 6 months that is required by the Constitution for a MP to vacate his seat.
Hon. Lusibaea was caught by section 51 (1) of the Constitution which states that if a MP is sentenced to a term of imprisonment exceeding 6 months he shall immediately cease to perform his function as a MP and his seat shall become vacant at the expiration of 30 days from the date of sentencing.
Thus, Hon. Lusibaea’s seat would have been vacant on 30 December 2010. However, section 51 (1) has a proviso that allows an MP appealing conviction or sentence to request the Speaker for an extension of time to pursue an appeal.
It was apparent that the Court of Appeal will not sit until sometimes in March. To avoid vacating his seat, therefore, Hon. Lusibaea applied to my office for an extension of time to pursue his appeal.
This was on December 9 2010 before the initial 30 days expired.
I exercised my discretion under section 51 (1) and granted him an extension of 30 days which will expire on 30 January 2011. At that point, therefore, the North Malaita seat was not vacant.
However, Hon. Lusibaea was precluded from performing his function as an MP unless he satisfies any of the grounds set out under section 51 (2) of the Constitution. At that time that was not the case.
I learned from the media that Hon. Lusibaea had been released on licence on January 14 2011. On January 20 2011, I received a letter from Hon. Lusibaea’s lawyer that the Minister of Police, National Security had granted a further 95 % remission to Hon. Lusibaea’s effective sentence. This was the first time that I had been made aware of this and it changed my initial view because the facts have changed. Let me explain myself why this is so.
Under section 37 of the Correctional Service Act every prisoner is granted a one-third remission to the sentence imposed by the court.
Section 38 of the same Act and Regulation 198 of the Correctional Service Regulation gives the Minister power to grant further remission. Thus, one-third remission of 33 months is 11 months.
The balance would then be 22 months. Considering that High Court backdated Hon. Lusibaea’s sentence to 11 March 2010 the 14 2011 is totaled up to 10 months.
When the Minister granted a further 95 % to Hon. Lusibaea’s effective sentence he is left with 1 month 1 day. This is the effective sentence.
The Correctional Service Act defines effective sentence as “the term of imprisonment that a prisoner is to serve, after taking into account remission granted under this Act.”
Thus, it is this effective sentence (1 month 1 day) that Hon. Lusibaea is released on licence to serve outside prison.
In light of this information I am of the view Hon. Lusibaea no longer falls within the ambit of section 51 (1). The relevant provision of the Constitution now is section 51 (2) which provides, “If at any time before the member vacates his seat he is granted a free pardon or his conviction is set aside or his sentence is reduced to a term of imprisonment of less than six months or a punishment other than imprisonment is substituted, his seat in Parliament shall not become vacant under the provisions of this section, and he may again perform his functions as a member of Parliament.” [My emphasis]
Hon. Lusibaea’s sentence was reduced to a term of imprisonment that is less than 6 months by the Minister under the Correctional Service Act 2007 and Correctional Service Regulation 2008.
Therefore, Hon. Lusibaea’s seat is not vacant and he may again perform his functions as a MP as provided for by the Constitution d unless decided otherwise by the High Court.
I hope this clarifies the Speaker’s position on this matter. On the face of things the Minister has exercised his powers under the relevant laws.
I do not have the legal mandate to decide otherwise. The question of whether the Minister exercised his discretionary power in a lawful manner is for the courts to decide. Only the courts have jurisdiction to make a decision on such matters.
Therefore, as it stands Hon. Lusibaea may again perform his functions as a MP.
I hope this clarifies my position on this matter.
By Sir Allan Kemakeza
Speaker of National Parliament
Speaker of National Parliament
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