The Vanuatu Referendum 2024: Resolving Instability?

Vanuatu’s first national referendum will take place on 29 May 2024. The proposed reforms passed by Parliament in December 2023 aim to tie members of Parliament to political parties in pursuit of strengthening the political party system and enhancing government stability. The proposed reforms, however, may unduly restrict the rights of members of Parliament and diminish important accountability tools within the parliamentary system, such as votes of no confidence – write Michael B. Krakat and Morsen Mosses

Introduction

Vanuatu, formerly known as the New Hebrides, was a British and French condominium from 1906 to 1979. In 1978, with the consent of the British and French administrations, a temporary government was established. In 1979, this government appointed a Constitutional Committee with a specific mandate to draft a written constitution. An exchange of notes between the UK and France approved the final draft, which was enacted on 23 October 1979. It came into force when Vanuatu gained its formal independence as a sovereign state on 30 July 1980.

Vanuatu has faced severe political instability since the 1990s. In the last few years this turmoil has intensified, with three governments changing in 2023 due to votes of no confidence. In October 2022, after a snap election in response to a no-confidence motion, the then-Prime Minister Bob Loughman dissolved his short-lived administration, leading to the re-election of the same Members of Parliament (MPs) who had switched parties in the 52-seat unicameral Parliament. There is a general consensus among the public that party fracture, regroup and the ability for parliamentarians to move from one party to another are some of the main causes of the political instability in Vanuatu.

On 29 May 2024, Vanuatu will have its first constitutional referendum.  The Constitution of Vanuatu has previously been amended seven times by Parliament without a referendum. These amendments addressed issues such as land laws and dual citizenship. The bill concerning the Constitutional (Eighth) Amendment Act No. 21 of 2023 was unanimously passed in December 2023. Voters will be asked to approve or reject constitutional amendments related to the regulation of political parties. According to the government, these amendments seek to make changes to the electoral and parliamentary systems, so under Article 86 of the Constitution they require a national referendum to come into effect. Vanuatu’s Electoral Commission has adopted a simple majority rule for vote counting, meaning that the proposed amendments will be adopted if more than 50 per cent of those voting support them.

The referendum aims to shape Vanuatu’s political landscape and enhance government stability . . . 

The referendum aims to shape Vanuatu’s political landscape and enhance government stability by providing clearer rules for party affiliation and preventing party hopping among elected representatives. This is to be achieved by requiring independent candidates and single-member political parties elected to Parliament to affiliate with a political party after being elected. Under the new Article 17A, if a MP leaves, or is forced to resign, from their political party, then their seat will be declared vacant. The main purpose of the proposed Article 17A is to ensure that members of Parliament continue to remain members of their respective political parties for the full term of Parliament. The President of a political party must inform the Speaker of Parliament within 14 days of an MP resigning or being expelled from the party, after which the Speaker of Parliament must declare the seat vacant within seven days.

The new Article 17B mandates MPs elected as independents to choose a political party within three months of being elected, or their seat will be declared vacant. Its primary objective is to ensure that independent members, single-person political parties, and members representing custom movements are affiliated with a political party for the entirety of their parliamentary term.

The best way of addressing political instability?

Through these proposals, parliament aims to tackle micro-parties, one-person shell parties, and regional parties, all of which are possible under Vanuatu's single non-transferable vote system. This system leads to highly fragmented parliaments that Vanuatu seeks to consolidate. Additionally, party hopping and votes of no confidence contribute to revolving door governments, overall distrust in the system, and political instability.

At the same rate, the proposed changes may create an unclear situation and, lacking procedural guidance, could for this reason be found unconstitutional. The termination of a seat due to the ambiguously phrased ‘lack of support’ in Article 17A is open to interpretation. MPs may in good faith claim to be acting in support of their party, and any deviation might be seen as curtailing and replacing the freedoms of an MP with party doctrine. The fear of potentially being found in ‘lack of support’ could, rather, incentivize self-censorship. Likewise, the notion of ‘affiliation’ in Article 17B requires further, and impartial, interpretation. Both provisions contemplate that party constitutions provide clear and precise rules on support, affiliation and expulsion to support a party president’s interpretation, which holds the potential for deep disagreement lest clear meanings are established.

Specifically on motions of no confidence, which the amendments implicitly seek to limit, it can be said that these are expressions of the essential notion that no government should survive against the will of parliament. These instruments have arguably been used by Vanuatu politicians to gain power over and above addressing poor government performance. The Vanuatu Constitutional Committee of 1979 previously considered that votes of no confidence should not be allowed ‘during the first 6 months of a government’s term of office, and no Parliament to pass more than 2 votes of no confidence during its term.’ (Constitutional Committee Meeting Minutes 9 August 1979, item 18, p. 103). However, votes of no confidence are essential to the functioning of South Pacific democracies, and limiting them could lead to dominant parties rapidly dominating society. Alternative solutions include the Solomon Islands’ introduction of a grace period of at least 12 months after elections during which motions of no confidence cannot be tabled against the Prime Minister.

Curtailing the role and functions of independent MPs by making them join parties is problematic.

Curtailing the role and functions of independent MPs by making them join parties is problematic. It potentially infringes upon their systemic relevance and freedom to vote on bills and motions as they see fit, without being bound by party discipline but, rather, limited mainly by their conscience and to representing their constituents. Based on their very existence, independents can function to provide a check on government power and lead to more innovative and creative policymaking.

Regarding party hopping, there is merit to the argument that the elected individual represents a constituency above being a party delegate. Stripping MPs of their seats can be seen as problematic under the principle of democracy: what if an MP genuinely no longer wishes to follow party doctrine and decides to switch or sit as an independent? In the UK, since 1979, there have been 206 cases of change of party allegiance, mostly through withdrawals and resignation, and a few suspensions. Famously, Winston Churchill, then elected as Conservative MP in 1900, “crossed the floor” to the Liberals in 1904, and then back to the Conservatives in 1924. Causing MPs to lose their seat for leaving or changing their political party does not sit well with the rest of the Constitution, especially in cases where a change is made for reasons of conscience over perceived misguided party doctrine.

Potential constitutional conflicts

 An exegesis of Vanuatu’s Constitution, when read as a whole, does not seem to prevent MPs from acting outside party doctrine, and supports the idea of the institutional freedom of MPs to contribute to the national debate. The general idea of parliamentary privilege enunciated in the Vanuatu Constitution, such as under Article 27, supports the notion that an MP is principally free. Article 7 (a) and (g) ask people to respect and to act in the spirit of the Constitution and to contribute to the attainment of national objectives. An MP losing their seat to prevent party hopping would likely be prevented from fulfilling these fundamental duties. Article 5(1)(f) protects freedom of conscience, which arguably includes the freedom to deviate from party doctrine, and Article 5(1)(k) equal treatment, which could here refer to equality vis-à-vis other MPs. What will be the interaction with and potential direct or indirect consequence be for Article 46, stating that MPs who are appointed Ministers shall retain their membership of Parliament? Or, take 45(b), stating that a Minister, including the Prime Minister, shall also cease to hold office ‘[…] if he ceases to be a member of Parliament for any reason other than a dissolution of Parliament’?

A similar provision in Papua New Guinea’s Organic Law on the Integrity of Political Parties and Candidates was declared unconstitutional by the PNG Supreme Court in 2010. The Court held, among other things, that limiting the ability of MPs to resign from their party was unconstitutional because it infringed upon the freedom of association protected under the PNG Constitution. It is, however, worth noting that the proposed Article 17A(5) provides that the anti-party hopping rules would apply despite the fundamental rights and freedoms set out in subarticle 5 of the Constitution of Vanuatu. In this regard, especially if voted on in a referendum, the Vanuatu Supreme Court could be inclined to uphold encroachments on fundamental freedoms as constitutional. This conclusion is supported by the recent dismissal of constitutional challenges against the referendum.

Institutional readiness for a national referendum?

Is Vanuatu ready for a referendum on constitutional change? Most South Pacific small island states may face challenges due to limited institutional capacity for organizing and overseeing referendums. This includes problems such as an absence of skilled election administrators and limited financial resources. The Vanuatu Referendum Act, CAP 297 of 2006, provides some detailed rules and procedures for the conduct of national referendums. It has, however, remained dormant, lacking implementation, leaving some uncertainty around the practical application of referendum processes and the effectiveness of current referendum preparations and standards. This may also lead to questioning the constitutional validity of the referendum process as such, including the levels of public education and participation on the issues.

The Vanuatu Constitutional Committee was expressly cautious about referendums, viewing them as perhaps unsuitable in Vanuatu and in a developing country context . . . 

The Vanuatu Constitutional Committee back in 1979 did not use a referendum to ratify the Constitution, nor did it use a referendum to choose between multiple draft constitutions or to vote on aspects such as whether to have a federal or unitary system and official language. In the Committee, Walter Lini (who would become first Prime Minister) was known to profoundly question matters, including even the merits of a constitution in the Vanuatu context, raising the existence of the Nagriamel kastom proto-constitution, already in place for seven years prior to the Vanuatu Constitutional Committee. He was specifically hesitant about using referendums, asking: ‘What would happen if the people rejected the Constitution put to them in a referendum?’ (Constitutional Committee Minutes 3 April 1979, p. 13). During the proceedings of the Constitutional Committee, the question of a referendum was brought up mainly as a last resort and bargaining tool to force unanimous agreement by the Committee on the issues at stake. With appropriate planning and preparation, casting complex matters into a ‘yes’ or ‘no’ paradigm can work, but much depends on the level of public education on the subject matter. While referendums can be viewed as people-empowering tools for direct democracy and popular sovereignty, it is known that whoever has the power to define the question may also hold significant power to determine the outcome. The Vanuatu Constitutional Committee was expressly cautious about referendums, viewing them restrictively, and as perhaps unsuitable, in Vanuatu and in a developing country context (Constitutional Committee Minutes 11 August 1979, item 30, p. 112).

Conclusion

As prescribed by law, a referendum is the correct format for constitutional change on these particular matters. The proposed amendments could benefit larger parties, party presidents and party dictate. However, consolidating power and curtailing the rights of MPs or the role of independents are unlikely to resolve the issue of politicians overstepping rules. The question of whether these changes are materially correct, and whether they have been carefully prepared and communicated, is not easily answered. Clarity of changes in the language and words chosen is of utmost importance to enable the people to make an informed decision.

Dr. Michael B. Krakat is Public Law Lecturer at the University of the South Pacific since 2020, coordinating subjects including Constitutional, Administrative and Taxation Law.

Dr. Morsen Mosses is a Senior Lecturer in Law at the University of the South Pacific.

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Suggested citation: Michael B. Krakat and Morsen Mosses, ‘The Vanuatu Referendum 2024: Resolving Instability?’, ConstitutionNet, International IDEA, 29 May 2024, https://constitutionnet.org/news/voices/vanuatu-referendum-2024-resolving-instability

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