A balance of mischief

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The Village Explainer
A balance of mischief
By Dan McGarry • Issue #62 • View online
The Village Explainer is a semi-regular newsletter containing analysis and insight focusing on under-reported aspects of Pacific societies, politics and economics.
In this issue, we examine the recent Appeal Court ruling vindicating PM Bob Loughman and 18 other MPs, allowing them to remain in Parliament.

A policeman stands outside the court precinct during the initial trial
A policeman stands outside the court precinct during the initial trial
Vanuatu’s latest political ruction has come to an end. Prime Minister Bob Loughman and the his front bench will retain their seats in Parliament, following the dismissal of an appeal by former Speaker Gracia Shadrack.
The appeal follows a ruling by Supreme Court justice Viran Molisa Trief, in which she cited separation of powers, and declined to closely parse the definition of an absence. At issue was the question of whether government MPs were absent for three consecutive sittings when they left the chamber in protest against the Shadrack, who they claimed was abusing his powers as Speaker.
At stake: Their right to remain in Parliament. In the late 1980s, then-PM Walter Lini lost patience with MPs who would show up to collect their sitting fees for each session, but who failed to attend crucial debates and votes. He passed an amendment to the Vacation of Seats Act that removed any MP who missed three consecutive sittings without permission from the Speaker.
Clearly, at least some of the MPs were not granted permission to leave the Chamber. Even if he had originally, they were duty-bound to return when he rang the bell to summon them.
But that proved immaterial. Justice Trief ruled that slicing and dicing the definition of ‘absence’ to mean a part of a sitting could lead to an absurd situation in which, for example, an MP loses his seat because he’s late one day, steps out briefly to take a call the next, and nips away for a smoke break on the third.
The Court of Appeal agreed.
“In the end, MPs must answer to their electorates for their performance in Parliament. The mischief of untoward absences over three days by MPs is less than the mischief of MPs peremptorily losing their seats in Parliament through intermittent absences.” - Shadrack v Wiebur
In a pair of pithy sentences, the Vanuatu Court of Appeal drew a clear line separating the powers of the Parliament and the judiciary. In a nutshell, they declined to overturn a government merely on an interpretation of procedural rules.
Yes, the MPs were partially absent. Yes, this constituted political ‘mischief’. But the harm done was hardly sufficient reason to overturn the duly constituted government of the day.
That’s the voters’ job.
The bench granted that the Vacation of Seats Act clearly intends to dissuade parliamentarians from neglecting their duties, and from using absence of quorum as a way to obstruct parliamentary business. But they concluded that the definition of an absence offered by former Speaker Gracia Shadrack’s lawyers went beyond what the language of the Act allows, and didn’t sufficiently distinguish between the absence of individual MPs, and the impact of their collective absence.
In short: Why should one MP’s absence be punished differently based on whether others were absent or not?
The parties involved were deeply invested in the result, and the stakes over what should have been a procedural question were out of proportion to the content of the dispute. To many court observers, this decision was never really in doubt. Who could reasonably expect the judiciary to overturn an entire government over a political bunfight?
The court wisely abstained, leaving it to Parliament to police itself, and to the voters to judge their performance.
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Dan McGarry

The Village Explainer is a semi-regular newsletter containing analysis and insight focusing on under-reported aspects of Pacific societies, politics and economics.

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Dan McGarry - Port Vila, Vanuatu