Digital Snapshot

by Eva U Wagner

VANUATU – Vacancies in Parliament?

Digital Snapshot #20/21

23 July 2021

A potpourri of current affairs topics from Australia, New Zealand and the South Pacific brought to you by KAS Australia and the Pacific. The weekly digital snapshot showcases selected media and think tank articles to provide a panorama view and analysis of the debate in these countries.

Disclaimer: The views expressed in these articles do not necessarily reflect KAS Australia’s position. Rather, they have been selected to present an overview of the various topics and perspectives which have been dominating the public and political debate in Australia and the Pacific region.

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In the beginning of June, the (now former) Speaker of Parliament declared vacant 19 seats of 52 members of parliament, including those of Prime Minister Bob Loughman and Deputy Prime Minister Ishmael Kalsakau, on the ground that they were absent from three consecutive sittings without his permission. The Supreme Court initially stayed the Speaker’s decision, so that parliament could continue sitting the next day, and issued consent orders under which the Speaker had to resign, which he did, saying that

“[t]here has been unrelenting challenge by the Government side against my ability to hold office as the Speaker of the Parliament of the Republic of Vanuatu.” This is a role I have held in earnest with dedication to ensuring the proper discharge of my Constitutional duties under […] [the Constitution] and ensuring adherence to the Standing Orders of Parliament. Given the current climate in Parliament and controlling Government majority who hold hostility against myself, it is no longer tenable to carry out these duties without detracting from the substantial business of Parliament to transact affairs for the people of Vanuatu.”

Gracia Shadrack was succeeded by Seule Simeon, who was the Minister for Education until his nomination as speaker. Mr Simeon already held this role in the 11th legislature before the 2020 general election. Back then, it was reportedly him (Simeon) who declared vacant the seat of his predecessor (Shadrack) after the latter missed three consecutive parliamentary sittings. Mr Shadrack challenged the declaration back then but lost before the Supreme Court and in the Court of Appeal.

The MPs affected by the Speaker’s declaration filed a constitutional petition with the Supreme Court arguing that the Supreme Court only had the authority to declare vacant the seats of members of parliament. In mid-June, the Supreme Court confirmed the (then former) Speaker’s decision to declare their seats vacant on the ground that it was the Speaker’s role to maintain order in parliament, and that his role included to monitor and to determine whether the requirements of section 2(d) of the Members of Parliament (Vacation of Seats) Act were met.

            2 Vacation of seats of Members

            A Member of Parliament shall vacate the seat they are in –

(d) if he is in absence from three consecutive sittings in Parliament without having obtained from the Speaker or, in his absence, the Deputy Speaker the permission to be or to remain absent.

The Supreme Court also emphasized that the Speaker had not vacated the MPs’ seats but rather they were vacated by the operation of the law (see Weibur v The Republic of Vanuatu – Judiciary of the Republic of Vanuatu (gov.vu). A stay order on the court ruling was granted with a view to the MPs’ appeals, pending which they remained members of parliament (see Weibur v The Republic of Vanuatu – Stay Order – Judiciary of the Republic of Vanuatu (gov.vu). In the second half of June, several MPs defected from Vanuatu’s ruling party. More precisely, four MPs, including the former speaker, joined the opposition, giving Ralph Regenvanu’s party 22 MPs. The opposition filed a motion of no confidence against PM Loughman on six main reasons including excessive spending by his Government. Vanuatu’s economy and in particular the tourism sector were hit hard by the pandemic, with the situation exacerbated by the impact of Cyclone Harold last year. Despite the ongoing issues, Parliament passed a cybercrime bill said to set a “new standard for the region”. In the end of June, PM Loughman defeated the no confidence motion with the support of 27 MPs. After the vote, he reportedly said that his Government was “doing what it should do under the Constitution.”

The MPs challenged the Supreme Court’s decision in the Court of Appeal arguing that (1) the Speaker had no constitutional authority to declare parliamentary seats vacant and (2) the Supreme Court erroneously embarked on an assessment as to whether or not the MPs were in fact absent from parliament given they explicitly excluded it from their argument before the Supreme Court. In mid-July, the Court of Appeal dismissed the MPs’ appeal on the ground that the Speaker’s decision did not violate their constitutional rights. However, the Appellants succeeded with their argument that the Speaker’s conclusions as to their absence was not an issue before the Supreme Court (see Weibur v The Republic of Vanuatu – Judiciary of the Republic of Vanuatu (gov.vu). The Judges of the Court of Appeal considered it unfortunate that the Appellants had made two separate applications in the Supreme Court, namely a constitutional petition alleging breach of Articles 17 and 21 in the first place and later on an election petition challenging the Speaker’s conclusions as to their absence. In their view, consolidation of the two proceedings into a hybrid application could have facilitated an earlier resolution of the issues. They said that the possible removal of a duly elected MP through the operation of section 2(d) [of the Members of Parliament (Vacation of Seats) Act] was

“a matter of great importance to Vanuatu’s democracy. Uncertainly about who is or is not an MP has the capacity to disrupt Parliament’s work. And so, a straightforward speedy process to resolve any dispute issues in the Supreme Court relating to elections is of paramount importance. Separate sets of proceedings dealing with the same broad issue, removal from Parliament, does not assist on a straightforward speedy resolution. We have set out in this judgement what we consider to be the appropriate process in cases involving vacation of seats through the operation of Section 2(d). The use of this procedure should facilitate the speedy resolution of such cases before the Supreme Court.”

The Guardian explains: “Vanuatu’s coalition-driven politics are fluid. Parties fracture and regroup, and MPs are willing and able to move from one side to another (and back again) with startling frequency.” While the Government, a Coalition between Vanua’aku Pati and the Union of Moderate Parties, was initially satisfied with its (now former) Speaker, relations deteriorated when he (Shadrack) refused to deliver on an intra-coalition agreement about leadership of a provincial council. The dispute culminated after the Speaker declared that the (then) Minister for Education, Seule Simeon, had vacated his seat when he left former prime minister Charlot Salwai’s Reunification Movement for Change, because MPs may by law not switch parties between electoral cycles. In response, the Government filed a motion to remove the Speaker. When the Speaker held the motion to be insufficient to be debated, the MPs boycotted three parliamentary sittings. The Guardian concludes: “The Vanuatu public rightly takes great civic pride in the willingness of the political class to submit to judicial authority. This provides an important – and sometimes overlooked – element of stability in a political environment that can look chaotic from the outside.”

A date for the Supreme Court hearing on the Speaker’s conclusions as to the MPs absence is expected in the coming days.