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WTF Just Happened in Vanuatu?

The Village Explainer
WTF Just Happened in Vanuatu?
By Dan McGarry • Issue #48 • View online
The Village Explainer has been on hiatus recently, due to professional commitments, but recent events require a handbook to follow, and who better than us to provide it?

Parliament House in Port Vila, seen through a pig tusk statue across the road.
Parliament House in Port Vila, seen through a pig tusk statue across the road.
I bet you’re all dying to know: What the fiddle-faddle just happened in Vanuatu’s Parliament last week?
Have we still got a Prime Minister? Have we still got a government? Has Parliament got a Speaker? Does Parliament even have quorum? Can/should Parliament be dissolved? Should everyone get a do-over?
To answer those questions: Yes, yes, yes, kind of, no, and er, maybe.
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Okay, seriously: Here’s a quick catch-up on what happened….
Vanuatu political crisis sees Prime Minister Bob Loughman lose his parliamentary seat | The World
A Million Vacations*
The events of the last few weeks in Vanuatu may seem to be startling—even shocking—to people who are new to Melanesian politics. To veterans, though, there is nothing new under the tropical sun.
This is not the first time a large bloc of MPs have had their seats vacated out from under them. I know it sounds uncomfortable, but it’s happened a lot.
It’s also not the first attempt to oust a Prime Minister using this tactic. Nor is it the first time someone has challenged the right of the Speaker to make that call. It’s not even the first time that Gracia Shadrack and Seule Simeon have gone toe to toe over the vacation of seats.
Allow me to guide you down the rabbit hole….
In 1988, a bloc of 18 Opposition MPs led by Leader Maxim Carlot Korman raised concerns about the conduct of the Speaker, issuing him a letter than said, in part, “We the undersigned will not be attending Parliament this morning in order to defend democratic processes in Vanuatu.
The Opposition boycotted consecutive sittings of Parliament from the 25th to the 27th of July inclusive, after which the Speaker ruled that the members’ seats had been vacated.
In his ruling upholding the Speaker’s call, Justice Ward cited a previous decision in which Vincent Boulekone was ruled to have vacated his seat for missing three consecutive sittings. That decision set the precedent that divides Parliamentary business into sessions, meetings, and sittings.
Justice Ward added, “It is a sad spectacle in any democracy to see a Parliament deprived of an opposition for however short a period it continues but it was the opposition who chose that course.
The decision was upheld on appeal.
Fast forward to 2009, when Korman, now Speaker, used exactly the same Vacation of Seats Act in an attempt to oust Prime Minister Edward Natapei, who was on his way to the Commonwealth Heads of Government meeting. The decision caught Natapei in transit, and sent him scuttling home.
The courts ultimately vindicated Natapei, ruling that an informal conversation between the PM and the Speaker in which Natapei said, ‘bae mi travel aot tis Sarere’ was sufficient notice, and further that Natapei was not afforded natural justice.
Gracia Shadrack was not so lucky in 2019, when Speaker Seule Simeon ruled that Shadrack had lost his seat due to a series of unexcused absences. Shadrack sought a ruling from the courts, but the Speaker’s decision was upheld.
He was re-elected in 2020.
A Series of Unfortunate Events
From the moment of his victory in 2016’s watershed election, then-rookie MP Gracia Shadrack has shown he is a force to be reckoned with. Right out of the gate, he secured a cabinet portfolio, serving as Minister of Health until his ouster in 2018.
He was not long in the wilderness. Prime Minister Charlot Salwai later rewarded him with a Parliamentary Secretary post. These plums would later prove Salwai’s undoing. The posts were ruled unconstitutional, and he was convicted of perjury for false testimony submitted when defending them.
His seat was ruled vacant by Speaker Gracia Shadrack.
Shadrack has a reputation for playing his own corner, and the role of Speaker seemed to suit him just fine. Up until very recently, Prime Minister Bob Loughman was content to sing his praises.
But when Shadrack invoked a rule requiring MPs who resign from their party to also vacate their seats, targeting none other than Seule Simeon, Government MPs felt he’d gone too far. He’d already reneged on a deal to broker a government-aligned coalition in his home province’s election.
The Speaker—rightly, as it turned out—ruled that the Motion was not mature. It could not be debated immediately.
But Government MPs decided not to wait for the courts to adjudicate the decision. On successive sittings, they showed up for roll call, then left, ignoring the Speaker’s attempts to summon them with the division bell.
And now, following the latest ruling from the Supreme Court, their impatience may well cost them the government, and could cost some of them their political future.
With apologies to Justice Ward, it is indeed a sad spectacle to see a Parliament deprived of a government, but it was the government who chose that course.
Twist and Shout
In a press conference shortly after the judgment was handed down, the Deputy Prime Minister claimed the government’s legal battle isn’t over.
The only question the MPs had put to the court, he said, was whether the Speaker had the right to rule as he did. They didn’t ask whether he’d ruled properly; they only asked if he had the right to do it.
This was a puzzling choice to some. The function of the Vacation of Seats Act is pretty well established. Shadrack said at the time, and previous judgments have ruled, that it’s not the Speaker who vacates the seat, it’s the law that automatically does so when the conditions are reached.
It’s the Speaker’s duty to recognise when this has happened.
In this latest ruling, Judge Saksak agreed.
The MPs’ lawyer also argued that because the question was different, none of the existing cases should be used as precedent. Judge Saksak called this gambit ‘novel’ and ‘absurd’.
The 19 MPs have been granted a continuance to a stay order that allows the government to function as before, at least until the Court of Appeal has the opportunity to consider matters.
The MPs’ plan, ostensibly, was to play out this round, and if necessary to keep the fight alive by raising the question of whether the Speaker had ruled correctly. They could be in for a short sharp shock.
In his ruling, Judge Saksak stepped beyond the question of whether the Speaker had the right to rule, stating, “The seats of the 19 applicants in Parliament have been vacated by operation of section 2 (d) of the Members of Parliament (Vacation of Seats) Act.”
It will almost certainly be brought to the Appeal Court’s attention that the MPs didn’t ask for the actual vacancy question to be adjudicated. But why they didn’t is perplexing to some lawyers I’ve spoken to.
There’s a chance this rope-a-dope strategy will not work. If the courts rule there’s nothing left to adjudicate, the MPs may find themselves on the proverbial mat early in the second round.
Okay, NOWWWW we're done... right?
Okay, NOWWWW we're done... right?
But wait! There’s more!
As if all this weren’t enough, events took a sharp left turn late Thursday. Lawyers who had acted for the Speaker in an earlier related case were kept on by new Speaker Seule Simeon. They were told to do nothing, though.
But they told the court that late Thursday, they received a consent order from the Speaker’s office, with instructions to sign. It effectively abdicated the case, in contravention of an earlier consent order which stated, “The integrity of Constitutional Case No. 21/1872 SC/CNST will be preserved in Parliament and heard as scheduled on 18 June 2021”.
The lawyer bought some time. They refused to sign, and suggested the Speaker seek consent from the Attorney General before trying to get them to sign off on a document that was in breach of a previous order, and which clearly placed Seule (who was a complainant in the case) in a conflict of interest.
To their shock, the document was returned from the AG’s office only minutes later, signed by Attorney General Kiel Loughman himself. A series of remonstrations ensued in which he was reminded that he served the Republic, not the government. Later that day, Loughman wrote to court officials that he had been misled, he’d been given false assurances that the other parties had already signed off or were ready to.
The Speaker’s lawyers refused to sign the order on ethical grounds, and sought leave from Judge Saksak to cease to act.
The next morning in court, Saksak was visibly agitated, and took the MPs’ lawyer to task, stating that the entire case was on thin ice.
These backroom maneouvres call into question the government’s public confidence in the outcome.
The governing coalition still has a substantial power base, and their backers are willing to mobilise if they are forced back to the hustings. There’s every reason to believe that many—if not most—of the front bench will be returned. But some might not. More than one voice has been raised on social media reminding MPs that they were voted in to attend Parliament, not to boycott it.
The Opposition see the possibility of a passel of by-elections as a perfect opportunity. They feel they can organise consensus candidates to run against their rivals, combining their often badly splintered numbers, overwhelming all but the most popular candidates. And best of all, they can risk everything without costing themselves a single seat.
As for the Attorney General, concerns have been raised about his commitment to put the interests of the Republic first.
Shamalayan Time
And just when you thought you were at the end of this deep, dark rabbit hole, there’s one final twisty turny bit: It’s been reported that the remaining 13 government MPs are under pressure to resign in solidarity with their colleagues, and to force a dissolution.
There is a rotund, spikey fly in that ointment: COVID-19. Quoth the Constitution:
There are two main ways to bring about dissolution: A supermajority of MPs can vote on the matter, or the Council of Ministers can recommend dissolution to the President. The latter is at the President’s discretion.
Now, it’s conceivable that CoM could summarily end the emergency, then fire off a dissolution request to the Head of State. But the chain of events that would trigger are frightening to consider. Surely it won’t come to that.
It would never come to that. Right?
* Here’s the payoff for the none of you who got the Million Vacations reference:
Max Webster - A Million Vacations
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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