A THREAT TO JUDICIAL INDEPENDENCE - REPUBLIC OF VANUATU
Up&running Siaraga
- The notion of the separation of powers between the Legislature, the Executive and the Judiciary is fundamental to Vanuatu’s constitution. Each ‘arm of government’ operates separately from the other with its own separate and distinct role in the democratic system we have. For the judiciary, the separation underpins the notion of judicial independence.
Respect for the rule of law in Vanuatu, and the role the independent judiciary plays in that, is widely recognised and applauded both inside and outside of Vanuatu.
The prosecution of Ministers for bribery can only happen in a country that has a totally uncorrupted and independent judiciary and prosecution service. Independence of thought and judgment in the judiciary is guaranteed by security of tenure that cannot be compromised by outside interference and threat of removal. When a judge’s decision making is seen in the context of an approaching termination or renewal of contract, that independent thinking can be compromised but, perhaps more importantly, the public perception that it may be, is unavoidable. That perception is what will undermine the respect for and confidence in the judiciary.
Presently the Constitution provides that security of tenure. However, the stability that has created could and, in our view, would, be very much destabilized by imposing a limited term on the Chief Justice’s standing.
On Friday 10 June 2022, when a bill for a number amendments to the Constitution was due to be considered, a further amendment was added, having the effect, if passed by a 2/3s majority, of limiting the term of the Chief Justice to 5 years. The tabling of this very significant amendment, in the context of Chief Justice Lunabek’s 24 years at the head of the judiciary, must be opposed by any MP who stands for upholding the independence of the judiciary and maintaining the strength of the three independent and separated arms of government in Vanuatu.
Vanuatu has been very fortunate to have as its Chief Justice a person of the highest integrity, respected throughout the legal world for his outspoken independent stance, unwilling, at any cost, to allow the workings of the judiciary to be compromised or dictated to from outside. He has played an enormous part in upholding the rule of law and earning the respect of the people of Vanuatu as he has presided over the court system, which has seen rulings on sensitive constitutional crises and such high-profile political trials as the bribery trial, made without fear or favour.
The public confidence in the system has seen potentially tense decisions handed down without incident. That respect for the rule of law is not evident in all countries, including in our region.
Currently the scope for removal of the Chief Justice is severely limited and, in particular, it must involve what would be regarded as conduct unbecoming of a judge. That is what fortifies judicial integrity and independence. Remove that protection, for the highest legal office in the land, and soon the judiciary will become a tool of the executive and one of the fundamental pillars of democracy in Vanuatu will be compromised irreversibly!
The Constitution is the ‘mama loa’ of the country. It is a highly regarded and valued document. It is not like a piece of legislation that can be amended to accommodate the needs of the ruling government. It has served the country well over its near on 42 years. Changes to it should be designed to improve the document for the benefit of the people. Without any prior consultation, politicians have seen fit to want to place limits on the Chief Justice’s term. Why is this suddenly seen as an improvement to the ‘mama loa’? The perception could be, unfortunately, that some ulterior motive must be driving it.
Over the last 42 years so much has been achieved to develop and grow to meet the challenges of a newly independent country, with no small part played by the judiciary’s unwavering commitment to integrity and independence. The rolling over of the Chief Justice’s position every five years, and the perception attaching to any appointment that is renewed, will only serve to weaken the standing of the judicial arm of government.
It is hoped that by the time this is published that Government has thought better of it and has decided to withdraw the bill. If not, we urge all members of parliament to ensure that the voice opposing it is strong and united and that the bill is rejected. If the high regard in which, both the rule of law and confidence in the independence of the judiciary in Vanuatu, is held, is to be maintained, it is critical that the amendment is not passed into law.
Concerned Members of the Legal Profession in Vanuatu