Litigation answer to maintenance of democracy?

Electoral cases, governance issues head to court

It may have something to do with the split personality of the condominium which saw the concurrent existence and legality of three separate legal codes in one jurisdiction.

It is likely to do more with the existence of several distinct communities of people between whom there has often been little common interest shown, or trust.

However, readiness to sue and acceptance of being sued when all else fails, is regularly seen in this country.

As a result, peace prevails. We don’t get out our pistols or axes or nalnals to solve problems. Generally, we only take to the streets in peaceful protest, as has been done once already this year.

This ability to go to litigation is to be the saving grace for an undisclosed number of electoral dispute cases which stem from the October 30, 2012 national elections. These are awaiting the 2013 court sittings which will begin in February, for adjudication.

These elections saw the country being ruled by an extremely loose coalition of 9 or 10 parties, each with a minister, and a further three independents as ministers to achieve the numbers.

After the court sittings, it may well come un-stuck as Prime Minister Sato Kilman himself is being the subject of a well publicised matter which needed adjudication—but failed to receive it—in 2008.

USP history lecturer Dr Howard Van Trease, in a public talk concerning the 2012 poll, shortly after the results were announced, was the first to draw the public’s attention to the important role of litigation in the maintenance of a semblance of democracy in Vanuatu. Indeed, the two biggest political parties were only able to establish the legality of their elected leadership through litigation days before the 2012 national election. Neither of the two ‘heavies’ is in the new coalition, but they still have their days in court—still to come—in February.

Yes, there is “rule of law’ in Vanuatu: everyone can have his day in court. But there are also areas which are still murky, like land.

As this issue of Islands Business went to press, Vanuatu’s Lands Minister James Bule was making it clear to everyone that under the country’s land-leasing laws, he has no powers to stop a man from Mele Village, Efate (the main island), from selling land he wants to sell.

He was answering questions from Opposition MP Ralph Regenvanu of the Land and Justice Party. Bule claimed a particular land lease sale was in order—one authorised by his predecessor.

At the same time, however, newspaper reports showed that a stay order had been placed on the land in question. Land case No. 6 of 1993 was decided in March 2010, immediately appealed, and a stay order placed by the justice of the Supreme Court hearing the appeal. So the present minister’s predecessor would seem to be in contravention of the law which would still have to be tested, as several parties are anxious to do. Back to court.

The land in question is crucial to the independence and constitutional promise of land going back to its customary owners. No-one doubts this is what was intended.

However, governments have been reluctant to ensure ownership of something which can be communally-owned is recognised thus, rather than ownership being vested in an individual. and ministerial promises of legislative reform go nowhere, and, as in this case, groups and individuals can end up having ‘indefeasible’ Torrens title system leases, all bearing the same number and all allegedly current.

Much may come un-stuck when Land case No. 6 of 1993 (the one mentioned above) gets back in court, as it will surely do so—and the investor concerned who has “bought” the land being unhappy as this edition went to press.

Since some 7 departments of the Lands Ministry are involved in any lease decision, this matter, which appears on the face of it ‘political’, may end up involving a number of senior civil servants being questioned. So now we’re in the realm of the Public Prosecutions and the Ombudsman—and again matters for the courts to decide.

Then there are governance decisions which are a real worry for everyone, and which are not matters to be taken to court.

The prime minister might be the first among equals anywhere else in the world in cabinet government. In Vanuatu, however, both the former prime minister (who remains the same) and leader of the opposition, in a 2012 public debate, were prepared to accept that each minister is a prime minister in his own ministry, a notion that stretches the concept of collective responsibility a bit too far.

The former (and thus present) government saw it fit to make the appointment of the ministerial director general political in character. Until the end of last year, the senior civil servant (DG) in every ministry was chosen by the Public Service Commission, the appointment based on merit: not political.

The recent appointment by the Minister of Health of a new director-general saw 51 senior health professionals protesting the appointment. 

It was announced that political appointments “are made by the Prime Minister who is responsible for the Public Service Commission and the appointment of DGs thereof”. The PM duly reappointed the former DG. So that the issue was readily resolved without going to any form of adjudication.

“Phocea”, however, often reported here, still needs court action—again. At the very least, this will be for damages in the order of one million dollars for the ni-Vanuatu lawyer who claimed his signature was forged on papers alleging the mega-yacht was registered in Vanuatu, and on the mariner’s papers of the sea-farers, none of whom had ever been in Vanuatu before.

The lawyer is suing the vessel “in rem”, as the alleged Vietnamese owner left Vanuatu in a hurry and failed to come back, possibly not looking forward to an appearance before the Vanuatu courts.

He might get asked what “Phocea” was doing, whilst seemingly involving the Vanuatu Government and diplomatic corps. And then there are the ever more lurid stories involving the late Minister of Public Utilities who died after having, he thought, arranged safe passage for “Phocea” out of the country

“Phocea” is still being held because senior officials of the Ports and Harbours authority are not satisfied the luxury vessel should leave when its papers are not in order. Nor is the Opposition. Nor is the general public, who still need explanations. The court it seems will have to provide the answers.


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