In Vanuatu’s 29th May 2024 referendum, eligible citizens will be asked to approve two constitutional amendments. The first is aimed at binding MPs to their political parties (17A). The second is intended to prohibit MPs from remaining independents (17B). Both amendments were detailed in the Constitution (Eighth) (Amendment) Act (Henceforth 2023 Amendment) which was passed by parliament in December 2023. They are expected to operate alongside administrative arrangements set out in a Political Parties Registration Act 2023 (Henceforth PPRA 2023). Vanuatu’s Constitution requires a two-thirds parliamentary majority followed by a simple majority in a referendum for amendments that concern national languages, the electoral or the parliamentary system (S. 85-86). Since there are several important provisions in the 2023 amendment and the PPRA 2023 that are not being put to a referendum, these are likely to be ruled unconstitutional.
Let us first focus on the two amendments that are likely to become law if passed in the May referendum.
Binding MPs to Parties (17A)
The first (17A) seeks to tie MPs to their parties throughout a four-year parliamentary term. It provides that an MP loses his or her seat if he or she ceases to ‘support’ a political party, but ‘support’ is not adequately defined. Legally, MPs would potentially be able to claim continued ‘support’ for a party while acting contrary to party policy or directives, for example by backing the leader of another party to become Prime Minister. The deterrent is that 17A empowers a political party to expel an MP who acts in such a manner. Therefore, it is the rule on expulsion that becomes critical, not the one requiring an MP’s continual ‘support’ of a party. If an MP is expelled from a party, or resigns, the President of that party ‘must notify the Speaker in writing within 14 days’ that this expulsion or resignation has taken place ‘in accordance with that political party’s constitution’.
This provision therefore grants strong powers to party Presidents, who are not required to be MPs. They are to be entrusted to interpret whether or not an MP has breached a party’s constitution. This provision presupposes the existence of precisely worded rules on expulsion in party constitutions. It opens the door to the courts having to decide whether the President of a party has or has not acted in accordance with that party’s constitution. In the Solomon Islands case, attempts by party officials outside parliament (often older unelected politicians) to bring to heel younger sitting MPs were not successful (see the story of the failed efforts by People’s Alliance Party President Nathaniel Waena to control Prime Minister Manasseh Sogavare in 2014-17). But why should party presidents behave any better than elected MPs? At least with elected MPs, citizens can vote them out at the next election.
If the party president is able to establish that an MP has resigned, or been expelled, in accordance with the party’s constitution, he or she ‘must’ then ‘notify the Speaker’ and the Speaker must declare the seat vacant within 7 days. Article 2 of the 2023 Amendment concludes by stating that these rules apply regardless of the fundamental freedoms set out in S. 5 of the constitution including ‘freedom of expression’ (S. 5. (1) (g)) and ‘freedom of movement’ (S 5. 1. (i)), i.e. exactly the provisions that were used to rule party legislation unlawful by the PNG 2010 Supreme Court. The Vanuatu courts might be less inclined to rule such provisions unconstitutional if they have been passed in a referendum.
The Speaker acquires extraordinary powers under S 2 (3) of the 2023 amendment. The legislation, as drafted, does not make clear whether or not the Speaker has the right to adjudicate whether an expulsion or resignation of an MP is or is not in accordance with that party’s Constitution (i.e., whether he or she has the right to review a party President’s decision). But that omission makes it possible, even likely, that Speakers will be inclined to so adjudicate. The Speaker is a political appointee. He or she is selected at the first sitting of parliament after a general election (1980 Constitution S. 22). Therefore, Speakers are likely to be beholden to Prime Ministers, except in circumstances where there is a mid-term change in government. This (i.e. having a Speaker who is aligned with the opposition) has frequently created great difficulties for new Vanuatu governments that secure office mid-term. If the Speaker acquires enhanced powers over the application of internal party rules, the 2023 Amendment could potentially make this problem much worse.
Even at the commencement of a parliamentary term, the 2023 Amendment gives Prime Ministers another tool to potentially disadvantage the opposition. Nearly all governments in Western Melanesia (PNG, Solomon Islands & Vanuatu) are coalitions. Coalesced parties tend to be loosely knit. MPs often change sides, frequently securing ministerial portfolios if they join the government side. Prime Ministers face continual difficulties holding together government coalitions. Sittings of parliament are commonly centred on no-confidence challenges. One frequent tactic of Prime Ministers seeking to manage volatile coalitions is to seduce opposition members across the floor with offers of ministerial portfolios. In Papua New Guinea, Prime Ministers will often sack a party leader, but retain the junior members of that party in cabinet, thereby provoking a split. If the sacked party leader then expels those in his party who continued to side with the Prime Minister, the latter could use his or her influence over the Speaker to ensure that they do not lose their seats. This is not only likely, but probable. The speaker will potentially become a much more powerful office-holder under the proposed amendments.
If 17A were passed in the May referendum but 17B failed to gain support, the result would be a legal framework that gives MPs strong incentives to contest as independents. By contesting as independents, MPs would be able to avoid the risk of losing their seats as a result of expulsion from a party. In other words, a law aimed at strengthening political parties would end up weakening them.
Forbidding Independents (17B)
The other question to be put to voters in the referendum is whether the law should be used to ban independent members of parliament (17B). As in the Solomon Islands, this provision has triggered considerable controversy. Unlike the PNG 2001/3 law, 17B anticipates EITHER independents elected OR one-person parties. It requires such MPs within three months of the first sitting day to submit to the Clerk a declaration of party affiliation. This needs to be ‘in the form approved by the Clerk of Parliament and counter-signed by the political party’s president’. This is badly drafted. The use of the word ‘in’ rather than ‘on’ implies some control by the Clerk whereas the reference to a counter-signature implies that this is ‘on’ a form. A similar provision exists for MPs elected in by-elections (S. 17B (3)).
The core problem with 17B is ambiguity as to the meaning of ‘affiliation to a political party represented in parliament’. What is to stop a one-person party saying ‘I am the political party represented in parliament’ (if that party is registered)? If an unaffiliated independent, what is to stop that MP registering as a political party prior to the three-month deadline? If the intention was to prevent this, the Political Parties Registration Act has not been adjusted to align with the 2023 Amendment. It would need to specify a time delay before party registration that exceeds three months or to state some other restriction on post-election registration of parties. Again, party Presidents and Speakers acquire considerable powers as a result of 17B and those powers could easily be abused. As with 17A, 17B requires perfect clarity in political party constitutions. It is necessary that ‘grounds provided under the party’s constitution that indicate when a member is deemed to have ceased to be affiliated with the political party’ (17B (8)) be absolutely clear in all party constitutions. It is likely that the courts will be called upon to make decisions about who, within a party, has the legal right to make decisions about expulsions.
These two provisions to be put to the referendum are expected to operate in tandem with the PPRA 2023, but this law had not been carefully or workably aligned with those amendments. It contains provisions that are not being put to a referendum that will likely be ruled unconstitutional.
Political Parties Registration Act 2023 (PPRA 2023)
There are conflicting versions of the PPRA 2023 circulating. One version has a S. 14 (3), but the other does not. One version empowers the Commissioner to de-register a party that fails to reach an unspecified minimum threshold of support ‘as determined by the Commission by order’ (S. 12(1) e). This would be easily open to abuse.
All the versions give extensive powers to the Principal Election Officer to oversee registration, de-registration, to vet, and investigate the internal affairs of political parties, but the formal registration or de-registration is (‘on recommendation’) done by the Electoral Commission (S. 10). Those powers include ordering the provision of documents and requiring parties to submit to questioning. The law empowers Principal Election Officers to vet ‘the policy platform’ of a proposed political party to assess whether it is of ‘national scope’ (S. 9 (1) (b)), but there exists no other law forbidding regional parties (which is a major step for any country to take!). All the versions prohibit associations from lodging candidate nomination forms unless they are registered as parties under the PPRA 2023 or unless they are ‘custom movements’ and, if they are custom movements, they are only allowed to nominate candidates on ‘one island in Vanuatu’ (S. 7). These are poorly thought through restrictions that entail major prohibitions. S. 14 specifies a ‘duty to affiliate with a political party’. It states that, where a party is deregistered, MPs or Municipal Council members or Provincial Government Council members must, within six months, either affiliate with an existing party or form a new party. This is a major constraint that is not to be put to the referendum (& would therefore likely be deemed unconstitutional). This section contains a glaring contradiction: S. 14 (2) states that an MP or Municipal Council member or Provincial Government Council member who fails to affiliate with a party or to form a new party is ‘taken to be an independent member of parliament’ but this contradicts the 2023 Amendment (17B), which seeks to prohibit such independents. In some versions of the PPRA, there has been a S. 14 (3) added which specifies that ‘A member of parliament who becomes an independent member of parliament’ under that provision ‘must comply with the requirements of sub-article 17B (3)’. Clearly, the Political Parties Registration Act has not been drafted so as to align coherently with the proposed constitutional amendments. If the referendum passes in May 2024, the Vanuatu parliament would therefore need to revisit the Political Parties Registration Act. The majority that existed in December for the passage of the PPRA 2023 may not exist in future to enable the necessary amendment.
Conclusion
If the two proposed amendments (17A and 17B) are passed on their own, the resulting legal framework would be incoherent. 17B could likely be evaded by clever politicians. 17A is more dangerous. It would put non-elected politicians in authority over elected politicians. If 17A were passed but not 17B, it would create greater incentives for MPs to contest as independents because they could thereby evade the constraints of 17A. The PPRA 2023 details the framework required for the implementation of 17A and 17B, but it is not precisely aligned with the constitutional amendments. Both the 2023 amendment and the PPRA contain critical provisions which are not being out to a referendum, and which are therefore likely to be deemed unconstitutional. The proposed legislation presupposes the existence of what it sets out to achieve: the objective is stronger political parties and the means of achieving this is to empower party presidents and speakers to impose discipline in accordance with party constitutions. If there exists no such internal party democracy, these laws will therefore fail to achieve their stated purpose.
Across the Pacific, general elections are increasingly characterized by numerous post-election court cases, often alleging bribery. These proposed constitutional amendments will generate still more disputed returns. If the proposed amendments were on the statute books, challenges could well emerge to the constitutionality of a would-be government. If a Prime Minister’s majority in parliament rests, at the margin, on the support of MPs who have either contested as independents or as one-person parties or if that majority relies on MPs who have been expelled from their parties, the legal authority of such a government could be challenged. In the flux of a post-election government formation period, such uncertainties can provoke major crises. In the Solomon Islands in 2019, challenges to the legal right of Manasseh Sogavare to form the government based on the 2014 Political party Integrity Act were an important factor provoking angry protest and rioting on the streets of Honiara. Fortunately, Vanuatu does not have a similar history of major post-election riots, but the country does have an experience of extensive post-election litigation over electoral rules and procedures. Hence, the best that can be expected of the proposed legislation is that it proves unworkable and is not enforced. The worst that can be expected is that it serves to further de-legitimize governments thereby provoking greater instability.
Professor Jon Fraenkel is an Adjunct Member of the Griffith Asia Institute and Professor of Comparative Politics at Victoria University, New Zealand.
Excerpt on the influence of party legislation on government formation from ‘Can Law Manufacture a Party System? The Papua New Guinea and Solomon Islands Experience with Party-Strengthening Legislation’, Australian Journal of Politics and History Online 29th January 2024, https://onlinelibrary.wiley.com/doi/10.1111/ajph.12931.
PPIA is Political Parties Integrity Act.
The 3rd April Solomon Islands 2019 election produced yet another fractionalised parliament, with eight parties accounting for 29 of the seats and independents taking the remaining 21. The share of independents fell from 64% to 42% (see Table 2), with many incumbents calculating – based on the 2014 experience – that nominal party affiliation offered no barrier to switching sides. After the polls, one six-party ‘Grand Coalition’ based at the Heritage Park Hotel claimed to be following the PPIA by selecting the leader of its largest component party, the eight-MP strong Democratic Party’s Matthew Wale, as its candidate for Prime Minister. The other faction, dubbed the ‘Democratic Coalition Government for Advancement’ (DCGA), comprising the also eight-MP strong Kadere Party, Sogavare’s faction and the Manele/Hou DAP, based itself at the Honiara Hotel. Kadere leader Peter Boyers countered Wale’s claims by stating that ‘the constitution supersedes any law that governs political parties therefore it does not necessarily mean the position of the PM must only be held by members of the largest party in parliament’.[1] Wale alleged that the DGCA was being ‘pulled by the nose by loggers’[2], but this was vigorously denied by its component parties. Wale had himself been accused of brokering payments to solicit MP support in 2014.[3] Transparency International’s Ruth Liloqula said that rumours of SI$250,000 being paid to MPs to switch sides needed proper police investigation.[4]
Before that election, Wale petitioned the High Court to halt deliberations on the grounds that Sogavare had contested as an independent and was therefore ineligible to stand in the election for the Prime Minister. He relied on the PPIA requirement that candidates had to be members of registered parties, upholding the very law he had sought to challenge in 2014. The deputy Chief Justice ordered a stay on the election, but Governor General Frank Kabui refused to delay the contest and instead followed the 1978 constitution which states that any MP can become Prime Minister. Kabui’s staffers insisted that the Constitution allows the Governor-General to determine disputes about Prime Ministerial elections and grants him immunity from court action regarding those decisions. In the High Court, Chief Justice Albert Palmer found no legal requirement that only political parties registered before an election could nominate leaders as Prime Minister. In any case, Sogavare’s Ownership, Unity and Responsibility (OUR) Party had in fact applied for registration on 16th January, well before the April election. Only after the election, on 9th April, did the Commission meet and approve the registration of that party. …
On 24th April, 35 MPs voted for Sogavare. Wale and his supporters walked out of the chamber in protest at the Governor-General’s decision to go ahead with the contest.[5] As confusion swirled onto the streets as regards who had the legal or moral right to form a government, major riots broke out in Honiara. The Pacific Casino Hotel – where Sogavare had been based – was trashed, as it had been in April 2006. Numerous vehicles were set ablaze and crowds attempted to burn down Sogavare’s residence in the east of the capital. Australian police chief Mathew Varley ordered roadblocks to be erected around the capital and police used tear gas to disperse large crowds in eastern Honiara. The capital’s Number 9 hospital reported numerous head injuries from rock-throwing. In the aftermath of the disturbances, Wale called on Sogavare to step down[6], hoping to repeat the events after the April 2006 riots when Snyder Rini had been forced to resign only eight days into his premiership. Sogavare proved able to survive the 2019 crisis, as well as a December 2021 no-confidence vote and, in 2022, was even able to gain parliamentary approval to extend his term in office until 2024.[7]
[1] ‘Kadere Open for Talks’, Solomon Star, (11 April 2019).
[2] ‘Loggers Cut Into Politics’, Islands Sun, (14th April).
[3] ‘SIPDC: Former PAP MP’s paid $500,000 each, Solomon Star, (8 December 2014); ‘Inducement offered amid Solomons lobbying’, Radio New Zealand International, (5 December 2014).
[4] ‘Nomination for PM opens as Solomon Islands’ parties reject logging allegations’, ABC Pacific Beat, (16th April).
[5] ‘Protests erupt in Solomon Islands as Manasseh Sogavare elected Prime Minister for fourth time’, ABC Pacific Beat, (24th April 2019).
[6] ‘PM Step Down’, Island Sun, (26 April 2019).
[7] Solomon Islands Parliament, Constitutional Amendment Act 2022, 6. Available https://www.parliament.gov.sb/sites/default/files/2022-09/Constitution%20%28Amendment%29%20Act%202022.pdf, Accessed 22nd October 2022.
