WTF is still happening in Vanuatu?

Bob Loughman’s first year in government was relatively peaceful, by Vanuatu standards, with not a single no-confidence motion making it to a vote.

That may be run of the mill in other countries, but for us it’s an achievement.

Beginning in June this year, though, that changed. He and his government have been fighting for their political life in the courts. In a series of events outlined in a previous Village Explainer, Mr Loughman and 18 other MPs found themselves in danger of having vacated their seats following a bit of procedural brinksmanship with then-Speaker Gracia Shadrack.

On September 6, the government MPs were heartened by the victory handed to them by Justice Viran Molisa. Citing separation of powers, she declined to closely parse the meaning of the word ‘absence’. She accepted the argument of the lawyer for the MPs, Sakiusa Kalsakau, that defining an absence from Parliament as only part of a sitting could lead to the ‘absurd’ situation where, for example, an MP could face losing his seat if he visits the bathroom one day, steps out to answer a phone call the next, and then arrives late on the third.

Based on this, she was left to conclude that for the courts to parse the meaning of each partial absence, and hence to effectively dictate parliamentary procedure, would encroach on the separation of powers.

Moments after the hearing ended, a packed courtyard resounded with shouts of ‘Seli Hoo!’ and “Ute ute ho!‘, the slogans of the Vanua'aku Pati and the UMP respectively.

But this political football match isn’t over.

Shortly after the hearing, lawyers for Mr Shadrack confirmed that they intended to appeal. They are strategising as this issue is being compiled.

What grounds could an appeal be stood up on? Well, a few.

First, the kind of momentary absences that so concerned the judge are actually accounted for in the Parliamentary Standing Orders. Even before she ruled, no seat could be vacated based on an MP momentarily leaving the chamber, because the rules explicitly allow it.

Second, the judge chose to ignore evidence that the MPs’ boycott effectively halted parliamentary business. It’s well known that the Vacation of Seats Act was specifically intended to keep MPs’ bums in their seats when it was first passed. Walter Lini’s governments suffered from chronic absenteeism, with MPs showing up to receive their sitting allowances and then leaving the drab old chamber for the bright lights of the big city outside.

Bills languished on the order table, and Mr Lini’s agenda suffered. Finally, in desperation and more than a little pique, his government passed a law saying that playing hooky could cost you your job.

There’s little doubt that a serial boycott of Parliament flouted this intent, and undermined the right of the Speaker to manage the business of the house.

Third, the parliamentary hansard clearly lists the MPs as absent from the session. While the manner in which those absences were noted would no doubt be subject to dispute, it is noteworthy that this evidence was not considered.

It’s entirely possible that case law could be created here that would provide useful guidance to MPs and future Speakers as to how to define an absence under the Vacation of Seats Act without stepping entirely over the line into parliamentary process. Whether the Appeal Court decides to leap where judge Molisa feared to tread remains to be seen, of course.

But can the case be appealed at all? Deputy PM Ishmael Kalsakau thinks so. Days before the decision was handed down, he told a VBTC interviewer that the government would pursue an appeal if the judge ruled against them.

But others have cited the Representation of the People Act, which establishes the rules for election petitions.

Some have cited section 63(2), which states:

The reason for this, apparently, is that the Supreme Court is effectively acting as a place for appeals of the Electoral Commission’s decisions.

But these cases aren’t adjudicated by the Electoral Commission. Could this be reasonably seen as the Court serving an appellate function on a ruling by the Speaker? The former Speaker’s lawyers don’t think so. They indicated that there is no impediment to their challenging Justice Molisa’s definition. They also noted that a key question in the case remains unanswered:

Even if the MPs are found to have been absent, were they absent without the Speaker’s permission?

Judge Molisa declined to rule on this, explaining that because they weren’t absent, the question of permission was moot.

A few other considerations may impact the Court of Appeal’s decision to take up the case or not. Most important is the issue of social disruption. Sacking 19 MPs in one go is a drastic and uncommon measure for a Speaker to take. He may argue that the law required he do so, but the court may prefer to let voters decide who should represent them in Parliament. I can’t speak to the legal logic for such a decision, but the course of least harm is often appealing to an, er, appeals court. They might simply choose to let Justice Molisa’s decision be.

Likewise, the issue of separation of powers might lead the court to do no more than suggest that parliament itself remove the ambiguity from the Vacation of Seats Act by amending it, or by clarifying the Standing Orders.

The case remains alive, at least for now. If the Appeals Court grants leave, it will be heard in the upcoming session in November.

By that time, it’s possible that former PM Charlot Salwai could be back in Parliament, doing his best to make arch-rival Ishmael Kalsakau’s life interesting. Many felt that Mr Kalsakau’s rise to power came on the back of the criminal complaint he made to Police that ultimately led to Salwai’s conviction for perjury.

Charlot Salwai spent the better part of a decade consolidating his hold on the francophone bloc, and Serge Vohor’s conviction allowed him to emerge largely uncontested as their leader. In the aftermath of the 2020 election, though, he was hamstrung. Whatever promises and commitments he made, people were unsure he’d be around to keep them.

Enter President Obed Tallis and Article 38 of the Constitution:

Now that President Tallis has pardoned him, Mr Salwai has wasted no time jumping back into public life. Electoral officials confirmed this week that he was already registered as a candidate in the bye-election originally intended to find his replacement.

The pardons will add a lot more spice to the lives of both the Prime Minister and the Deputy PM. It’s not clear whether Serge Vohor is healthy enough to contest a future election, or even if the pardon lifts his ban on holding office. But if he resumes an active role at the helm of the UMP, Mr Kalsakau may find himself constrained.

And Joe Natuman was of course leader of the Vanua'aku Pati prior to his conviction. His supporters will no doubt have high expectations about a return to parliament, and to prominence. This would no doubt add a bit of spice to the VP’s Tanna Soup, as local quipsters would say.

Are bye-elections still on the horizon? It’s far too soon to tell. The right to appeal may be clear to some, but oddsmakers are loth to speculate on which way the court might rule.

Rightly so. This is an unusual and highly disruptive situation. Any self-respecting court takes separation of powers seriously, and ours are no exception.