Monday, 26 January 2009 4:13 PM

Mr. Sasako's Original article

Dear Sir,

Allow me to make some observations on this issue that has attracted numerous responses from your readers. I have read the numerous commentaries on this saga, including Mr. Sasako's original article wherein he voiced some concerns which included, among others, that by passing the motion on Sir Alan "parliament [had] set a very dangerous precedent". In the same piece he also expressed his "humble view" that the passing of such a motion by parliament was "clearly . a direct interference of the work of the judiciary". He also hoped that "we don't go beyond what Parliament had done . [as] [d]oing so will only hold our judiciary to public ridicule". Mr. Sasako even dabbled in some speculation when he stated that "some, rightly or wrongly, must be eagerly wondering whether Solomon Islands is now on the verge of applying a dual legal system for its citizens: one for the ordinary people and the other for elected officials".

Moving beyond mere speculation and apparently speaking on behalf of others he stated, as fact, that "[t]he conclusion by many is that Parliament had decided to takeover the matter because the judiciary was incompetent to deal [with] it". For the uninformed (i.e. those that may not have read Art.51 of the Constitution, and I am guessing that the majority of Solomon Islanders would fall under this category-after all the Constitution does not make for a great page turner), the concerns and assertions raised by Mr. Sasako, along with their implications, would cause them great concern too.

As an aside, I have observed that there may have been a shift from the original concerns shared by Mr. Sasako, as the focus of his more recent letters have been on what he calls the "selective application of Art.51" and the general themes of "justice" and "fairness"- concepts which I will allude to later. While important in their own right, these concepts, and his current stance on "selective application", stand in stark contrast to his concerns on the doctrine of separation of powers which, in my reading, was among the primary concerns -if not the major concern - of his original article.

I must say that while his original article provided some food for thought, particularly on matters concerning specific policy issues (e.g. whether MPs should be accorded such a treatment in the first place; whether Parliament should consider such a motion at all; whether Parliament should be empowered to consider such a motion automatically despite not having been requested by an affected MP to move such a motion; whether there should be a limit on Parliament to grant such extensions of seat vacation similar to that currently imposed upon the Speaker; can the MP concerned instruct a lawyer to seek an extension, under Art. 51, on his behalf; whether courts should fast-track appeals involving sentenced MPs) - as someone who is a little familiar with the Constitution- the crux of the concerns raised in that article, despite its rather dramatic presentation, was, to my mind at least, a non-issue right from the get-go.

Mr. Sasako's original article would have perked up my interest more if he had made reference to Art.51 of the Constitution or at least framed his concerns around the same by providing specific critique. But rather intriguingly, Art.51 was never mentioned in Mr. Sasako's original piece. It would be futile for me to speculate on the reasons for such a seemingly blatant omission but there can be no doubt that Art.51 was at the heart of parliament's consideration on the Sir. Alan motion. Put simply, the action of parliament concerning Sir Alan was dealt with pursuant to and in accordance with Art.51 of the Constitution. Perhaps Mr. Sasako made a deliberate decision to avoid Art.51 altogether, choosing instead to dwell on some potential broader policy issues.

Be that as it may, the assertions made and conclusions he reached, particularly on the possible usurpation by one arm of government of another's mandate, go well beyond matters of policy and strike at the heart of the system of government that Solomon Islands has adopted. These are serious assertions and allegations that, if true, have far-reaching legal and constitutional ramifications. In this light, deliberately leaving out any mention of Art.51 in his supposedly measured analysis was, in my mind, a mistake as it robbed the article of the proper context within which the assertions and conclusions reached therein should be based.

The omission, in my view, also allowed for the proliferation of conjecture and provided fertile ground for the sowing of public confusion. Without the context that Art.51 provides, it is very easy for the public to draw inaccurate inferences from the contents of the original article that could lead, unfairly, to a drop in public confidence toward our national institutions - namely the Parliament and the Judiciary. Furthermore, I feel that the absence of Art.51, as a reference point, has also hurt discussions on this issue, as evidenced by the apparent disconnect in the exchanges on this website between Mr. Sasako and those of us who beg to differ with his views and assertions.

I will not dwell on the specifics of the provisions of Art.51 as it has been amply addressed by various commentators, including several here in this website but there is a slim possibility that I may have completely misread Mr. Sasako's original piece. His concerns may not have centered on issues surrounding the doctrine of separation of powers at all. Rather, he may have been more concerned about the need for Parliament to uphold the doctrine of natural justice across the board and show "fairness" to other MPs, including Messrs. Dausabea and Shanel, in its application of Art.51.

If so, my only observation is that such concerns are matters of policy and personal choice as other commentators have already alluded to. I am not denying that policy and the law are not inter-connected. It is known fact that policy issues and decisions often lead to legal or legislative consequences: be it the promulgation of a regulation; a new Act or an amendment or repeal of an existing legislation; amendment of the Constitution. In this connection, some of the policy issues raised by Mr. Sasako may need further reflection by Parliament and policy makers. I had listed some of them earlier, in parentheses. In any event he should be commended for bringing these policy issues to the fore and into public consciousness.

I agree with Mr. Sasako when he states that "we should leave what is rightfully a matter for the courts to the courts and what is politics to the floor of the parliament chamber". Sir Allan's appeal has been lodged with the Courts. The relevant Court is still seized with this matter. Parliament has passed a motion to extend Sir Allan's vacation of his seat. Both arms of government have, in my view, acted within the confines of their respective mandates as currently stipulated under the Constitution. The doctrine of separation of powers was not violated in this instance. Nor was it even threatened.

It follows, therefore, that I do not count myself among the "many" he claimed as having reached "the conclusion" he alluded to in his original article that "Parliament had decided to takeover the matter because the judiciary was incompetent to deal [with] it".

Disclaimer: The views and opinions expressed in this letter/article are those of Peter Kenilorea (Jr.) and do not necessarily reflect the official policy or position of Solomon Times Online.

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