A lot of people (myself included) were expecting a final determination on Monday concerning the status of Prime Minister Bob Loughman and 18 government MPs.
But recent developments suggest that’s not going to happen.
In what history may judge to be a career-saving move, Deputy Prime Minister Ishmael Kalsakau reached out to Australian lawyer Ari Jenshel to represent the 19 MPs in their appeal.
Jenshel was ejected from Vanuatu nearly a decade ago after he was falsely accused of spying. (Full disclosure: I knew Ari when he was here. I’ve never seen any evidence to support the allegations made against him.)
Ari was a legal advisor to Vanuatu’s State Law Office at the same time Ishmael Kalsakau was Attorney General. Evidently their warm relationship continues. And it’s a good thing for the governing coalition that it does. Their prospects may have looked bleak before, but their new counsel quite literally wrote the book on civil procedure. Well he wrote the commentary, anyway.
Most lawyers in Vanuatu have Jenshel’s annotated Rules of Civil Procedure on their desk.
The crux of the MPs’ case is procedural. Rather than trying to defend the indefensible, their appeal is based on one small but critical detail:
The MPs argue that when Justice Oliver Saksak ruled that the PM and 18 others had vacated their seats, he exceeded the bounds of the case. Not only did they not ask for a finding of fact on that matter, they explicitly said they were not trying that question. They only sought a ruling on the question of whether the Speaker had the right to rule as he did.
Again: They didn’t ask for a ruling on whether their seats had been vacated, but only if the Speaker was required to get a court ruling before declaring them vacant.
Jenshel’s submission to the court astutely points out that the proper process for challenging removal from Parliament under the Members of Parliament (Vacation of Seats) Act
is to submit an election petition under Part 3 of the Election Petition Rules.
Election petitions are heard by a Supreme Court judge. Past petitions have all been lodged under Part 2 of the Rules, which names the Chief Electoral Officer as the respondent. In this case, the Speaker would be the respondent.
This specific argument makes sense to me. If the Appeals Court rules in the MPs’ favour—as many expect it will on this narrow point of appeal—then the MPs will have to scramble to obtain another stay order to remain in office while they proceed with 19 election petitions.
This would stretch out Vanuatu’s period of political uncertainty even further, and it raises some important political issues.
It’s the duty of the Attorney General to defend the interests of the Republic. In the previous instance, he entered into a consent order that would have conceded the case before it was even tried. This caused distress and consternation in the judiciary, who said it came within a hair of obstructing justice.
The AG circulated a letter stating that he had been misled, and there’s evidence to suggest he was, but questions were raised nonetheless concerning his commitment to defend not the government, but the state.
It’s also worth noting that one of the parties in a notional election petition could be the Speaker of Parliament. Not the Speaker who initiated this series of events, but the office of the Speaker itself. Given that the current occupant would be one of the petitioners, it’s worth asking how diligently they would work to uphold their predecessor's—and rival's—ruling.
A criminal complaint has been lodged relating to some of these events, so we’ll refrain from examining the matter in detail.
If everyone plays by the rules and holds up their end, it’s hard to see this matter being resolved for months. If people fold under pressure and concede the petitions though, the matter could be over—if not necessarily resolved to everyone’s satisfaction—sooner than that.
Stay tuned, folks. This ain’t over….