By Paw The Law contributor

This article is not an expression of the views of Vanuatu Law but is merely a commentary on a breach of the Constitution. This is a matter of law and is posted for the purpose of generating thought and discussion on the topic.


In the Daily Post of the 2 March 2019 an article appeared under the pen of Dan McGarry on the government’s consultation on its proposed reforms to the Constitution of Vanuatu. In the article he stated that the reforms were trifold:

  • 1. A series of amendments to override the fundamental Freedoms of Conscience, of Association and of Speech for elected Members of Parliament;
  • 2. To subject the formation and governance of political parties to legislated limits; and 
  • 3. To require candidates to demonstrate that they enjoy a minimum level of support in order to contest an election. 

Of the legislative proposals being put forward by this government, I find myself deeply concerned with the agenda of these constitutional changes. At face value they have all the appearance of covert despotic rule and all the seeds of subversion implanted therein. 

The Constitution has accorded certain fundamental rights to its citizens, which include the rights of Freedom of Association, Conscience and Speech. The proposed reforms seek to limit or else remove those rights altogether. In so proposing, the government has failed to understand that the Constitution merely recognises those rights that are already inherently guaranteed to every free man and woman. These rights are referred to by the Republic of the United States of America as “inalienable.” That is, they have been endowed by our Creator and cannot be repudiated or transferred, not even by an omnicompetent Parliament. 


Therefore, the Constitution cannot take away what it was never within its power to give. The very nature of freedom dictates that I am free to express myself once it is not tinged with malice and untruths for the purpose of damaging the reputation of another. I am free to choose my conscience over either familial or party bonds, and I am free to associate with whomsoever I choose, be it religious body, individual or party, however unpalatable it might be to others. And this it true whether I am merely a citizen of a country or a Member of Parliament. 


I have no wish to assign disingenuous reasons to the government in seeking these amendments. It may very well be borne out of the unpredictability over the last few years, brought about by corrupt leaders and their Ministers, and frequent Motions of No Confidence which may be thought to create or add to instability within the country. It could equally be argued that the real issue is not so much the government’s concern over the betrayal of the people by parliamentarians when they switch allegiance, but by the potential loss of power, the treasured prize of every political party and government. But the government must be wary, that in trying to remedy one problem they do not create a whirlwind of other problems and set the Constitution against the very people for whom it was designed to protect. 


It is always important that any legislative amendments be viewed in light of their enforcement by another government. This Parliament sits for a mere 4 years and it will then be out of the present government’s control if a new regime comes in and chooses to use these amendments to limit, not merely the freedoms of parliamentarians but the people. There is always the danger that when laws are designed to restrict a certain group of people that it can indirectly restrict other unintended groups. While drafters try to be all-seeing, they cannot predict every outcome and consequence of a law. And it is not until after a damage has resulted that wisdom comes. 


The proponents of this Bill have also failed to appreciate that these freedoms which they seek to limit for the purpose of curtailing actions of Members of Parliament in floor-crossing and changing of party allegiance is in itself an invaluable check on the power of Prime Ministers; and timely floor-crossing for such matters of conscience or party disagreements on proposed reforms has the tendency to check overstepping Prime Ministers. This check is a power built into democratic parliaments. We only have to look across the waters to Britain to understand its weight. The inimitable Sir Winston Churchill of Great Britain crossed the floor twice: from Conservative to Liberal in 1904 and from Liberal to Conservative in 1924. 


His 1904 floor- crossing was on account of his disagreement with the Conservative Party on Tariff Reform and in 1924 he returned to his Conservative Party on account of his concerns with a socialist government. Neither then, nor now, was he or the practise ever condemned. The politically mature democracy of Britain recognised the value in this freedom belonging to parliamentarians. Even now 7 Members of Parliament in Britain have left the Labour Party for supposed anti-Semitic statements. Who knows, they may very well pledge allegiance to another political party or even the reigning government. Should they be forced to remain with a party that holds such distasteful views? Having taken such an important and necessary stand on behalf of their constituents should Britain be subjected to the expense and instability of 7 by-elections? This is an example of a real democracy in action. Britain does not pay lip service to its democracy but actively and passionately lives it out.    


An oft quoted and apt phrase, “that every man invested with power is apt to abuse it……” and that it is therefore “necessary from the very nature of things that power should be a check to power” is of significance here. In other words, those in the greatest positions of power could only have that power curtailed by persons with similar or greater power. Who then does the government expect to speak out and act against abuses of power of ill-considered reforms if not its own Members of Parliament? If a Prime Minister knows that the power rests with any member of his government to change allegiance then he becomes more guarded in his actions. 

It is therefore not for the government to engage in fear-mongering by speaking to the people of breaches of trust by their representatives and corruption of parliamentarians to justify the passage of such draconian reforms, but to educate the people on how best to exercise their franchise so that they elect the best persons, and educate them on how and why they must hold their representatives accountable for the duration of their life in Parliament. They are to educate the people on how the Constitution can deal with corrupt politicians through the better and impartial use of the Ombudsman, and ultimately, the power of the people voting such corrupt officials out of office. When politicians seeking to create reform for political agendas selectively inform the public, they do a disservice to the very people they have been elected to represent and this is itself a breach of trust. Should this be considered a breach of trust warranting a removal from Parliament as well and justifying a by-election? 


One commentator at the consultation according to the article said that sending people back to the poll time and again also causes instability and he is right. Stability is one of the most valuable commodities a free country has when it sits on the world stage seeking funding for development, when seeking to implement economic reforms and development projects. Guarding the stability of the country should be every governments priority and not attempting to achieve some superficial version of it by stripping its citizens and its parliamentarians of their fundamental freedoms. How can Vanuatu then call itself a democracy if this is the path it chooses to walk. 


The Minister is reported to have said in reply to a comment that “we’re restricting movement of 52 MP’s, not the entire population.” If, as the Minister says, the intention is to simply limit the movement of Members of Parliament, what will stop the government from seeking to limit members of the public who oppose them, or professionals who may challenge them, or a judiciary that may hand out judgments against them or the people who may revolt against them. The Minister is flirting with fire and on a slippery slope to constitutional ruin. But it is not too late, and so I ask the Minister to seriously reconsider this reform and the long-term repercussions it can have on an island State like Vanuatu. 


As a fledgling democracy it should not look to restricting its people but educating them on the responsibilities that arise out of these freedoms. God has given to each of us a free will with all freedoms to choose to employ how ever we see fit, but this does not mean that in the employment of those freedoms we do not have a responsibility to every other person on the planet, to the environment and to God. If we abuse those freedoms God has warned us of the consequence. In the same way as citizens of Vanuatu we have a responsibility to work in the best interest of our country and our family, and where we fail, to be held accountable. The Ministers who were convicted in 2015 were held accountable and paid. We should not try to heal a sore by cutting off the leg but treating it from the source.


Successive governments have added to the feeling of insecurity the people feel in the country by their frequent Motions of no confidence. An examination of these Motions may prove to be less about bringing truths to light and more about ousting Prime Ministers and governments to supplant themselves, not out of a genuine interest to give the best representation to the people but what many see as mere self-service. This government must take responsibility for their own part in creating this insecurity, whether they were its author or not, and not look to lay blame at the door of individuals or party’s and the allegiances which they may have by attempting to limit their freedoms. 


The government should leave the business of formation of parties to parties. Let parties frame their own Constitutions on how they will select candidates to stand for election. Let parties prove their metal at an election when the voters go to the poll. Government should concern itself with matters of government and improving the lives of the people. There is less danger in numerous parties seeking political office than less. There is a far greater danger in a government creating obstacles, through legislation, to prevent parties from forming, or individuals, whether they be independent or not from running. Governments are made or broken in the ballot box, but the action of this government can be considered to be a move that could take away that absolute franchise from the people and determine the election in their favour before even one vote is cast.


One contributor suggested that money was to blame for the political instability in the country. While I cannot presume to know his exact meaning, I will say that money in politics is considered the fuel that turns the political wheel and greater attention must be paid to matters of campaign financing, bribes taken in office to bring about certain outcomes and the financial integrity of those running for public office. 


The business of government should dictate that these are the types of matters which the government should seek legislative reform on; that is, monitoring where and from whom money for campaigns comes from, if floor crossing was motivated by a bribe or parliamentary votes solicited with promises of reward, then processes put in place for dealing with the offending persons and an Integrity Commission established to look into the financial affairs of intended candidates and successful candidates at the polls, both prior to elections and throughout the term of office of parliamentarians. These reforms will do more to bring parliamentarians to heel, and weed out untrustworthy ones than the current proposals on the table.

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