Vanuatu is holding its first ever referendum on 29th May on two constitutional amendments designed to lessen instability on the floor of parliament.
The first amendment (17A) intends to tie members of parliament (MPs) to their political parties. The second (17B) aims at prohibiting MPs from sitting in parliament as independents unaffiliated to any political party.
In addition, a Political Parties Registration Act passed in December empowers the Principal Elections Officer to register and de-register parties, to vet the ‘policy platform’ of any proposed party to assess whether it has a ‘national scope’ and to de-register parties who fail to reach an unspecified minimum threshold of support.
The Vanuatu Constitution requires a two-thirds parliamentary majority followed by a simple majority in a referendum for any amendments that concern national languages, the electoral or the parliamentary system (S. 85-86). Since important provisions in that Act affect the working of the parliamentary system, but these are not all being put to the vote, these are likely to be ruled unconstitutional, as has been the case in the past.
Within Vanuatu, the referendum debate is regularly being depicted as if it were one between those in favour of instability and those who are against it, or between those who want economic development and those who are against it. That is deeply misleading. Political stability and economic development are obviously desirable objectives, but the big question is whether these proposed laws will achieve what is being promised?
Will MPs be tied to their parties?
The first constitutional amendment (17A) seeks to put a halt to ‘yo-yo’ or ‘grasshopper’ politicians that jump to and fro between political parties. MPs are required to ‘support’ their parties for the duration of a parliamentary term. Those who do not do so can be expelled, but to expel an MP the President of a 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 gives considerable powers both to party presidents, who are not required to be MPs, and to Speakers of Parliament, who are political appointees normally selected at the first sitting of parliament after a general election (1980 Constitution S. 22). Speakers are then required to declare the seats of MPs who have been expelled by their parties vacant within seven days. These provisions are easily
open to abuse. Speakers of Parliament may use these new powers to their own advantage. Why should the Presidents of political parties be expected to behave any better than elected MPs?
Should Independents be Forbidden?
The second amendment (17B) to be put to the public prohibits MPs from contesting as independents, but this provision has triggered considerable controversy. Within three months of the first sitting day after a general election, independents would be required to submit to the Clerk a declaration of party affiliation.
But there are gaping loopholes in this law. Nothing prevents unaffiliated independents from quickly registering as political parties prior to the three-month deadline. The amendment tries, but fails, to deal adequately with the likelihood of one-person parties, which were such a prominent feature of the Papua New Guinea reaction to the similarly intentioned 2001 Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC). Unscrupulous politicians will run rings around these proposed laws.
Both laws presuppose what they set out to achieve. The intention is to strengthen political parties, but these laws can only work as intended if political parties are already strong.
Both laws require absolute clarity in party constitutions about the grounds on which ‘a member is deemed to have ceased to be affiliated with the political party’. In practice, party Presidents and Speakers are bound to manipulate those rules in their own favour. Like the Political Party Integrity Law (PPIA 2014) in Solomon Islands and OLIPPAC in PNG, these laws depend on creating or strengthening what inevitably becomes a highly politicized constitutional office and then expecting this to act in a non-partisan way.
The experience in PNG and the Solomon Islands was that these laws did not work as intended. No MP lost their seat in either country for violating the rules. Key parts of the PNG law were ruled unconstitutional in 2010.
In the Solomon Islands, the government of Gordon Darcy Lilo did not have a majority for the necessary constitutional amendments in 2014. Paradoxically, the impact of the Solomons law was to encourage many sitting MPs to contest as independents. In 2014, the Political Parties Commission told the wrong faction that it had the right to form the government. At the next election in 2019, the law created great uncertainties about who had the legal and moral right to form a government that spilled over into riots that broke out on the streets of Honiara. If these constitutional amendments gain support in May and if they are subsequently enforced, Vanuatu can expect lots of future court cases about the expulsion of MPs from their parties or the de-registration of purportedly non-qualifying parties.
Jon Fraenkel is a Professor of Comparative Politics at Victoria University of Wellington. He has written extensively on party strengthening reforms in Papua New Guinea and the Solomon Islands.
