Order from the Court: Judiciaries as a Bulwark Against Legislative Corruption in Vanuatu

Imagine that one-third of the members of your national legislature were convicted of bribery, and then decided to pardon themselves, and you’ll only begin to appreciate the scope and oddity of Vanuatu’s current political drama.

On October 9, Vanuatu’s Supreme Court convicted 14 of the 33 members of the ni-Vanuatu Parliament of bribery. The politicians, who at the time of their unlawful conduct included the deputy prime minister and four other members of the cabinet, had last year accepted around US$9,000 each to support a vote of no confidence in the prime minister—that is, to kick him out of office. Though the prime minister discovered the scheme and suspended the participants, they successfully sued for an end to their suspension, and promptly followed through on their plan to eject the sitting government.  Now holding Parliament’s top-ranked positions themselves, the bribe-takers nevertheless fell under police investigation, and a trial against them began this September.

After the bribe-takers were convicted but before they were sentenced, the president, who was not a member of their coalition, took a trip abroad. Under Vanuatu’s constitution, that left the Parliament speaker in charge. The problem? That Parliament speaker was one of the people convicted of bribery—and he promptly decided to use his temporary power to suspend the Ombudsman (the officer charged with investigating corruption) and pardon himself and his co-conspirators. The president quickly returned to Vanuatu and revoked the pardons, but it’s not clear that he had the legal authority to do so. With the Court of Appeals having recently rejected the appeals of the members of Parliament (MPs), the MPs are now kicked out of the legislature, and new elections may have to be held.

As idiosyncratic as this story may seem, it still speaks to some deeper truths about the problem of corruption in the Pacific Islands—and may yet resolve itself in a way that provides some clues about effective ways to fight it. So, what went wrong in Vanuatu, and what can still go right?

The corruption-related issues that plague Vanuatu are hardly new and tend to reinforce each other.  Furthermore, they are unfortunately broadly reflective of trends in the Pacific Islands:

  • Vote buying. The politics of patronage is hardly limited to the Pacific Islands, let alone Vanuatu; the description of “bags of rice, …shells of kava[,] and…a lot of payments” being handed out in the lead-up to elections could, with a few swapped details, characterize the elections of countries on many continents. However, it is particularly prevalent in the Pacific Islands, which follow the small island state tendency of having “a society [with few] economic alternatives to reliance” on the government. Smaller populations also foster closer connections between politicians and their constituents, creating a situation in which the former may feel “it is very difficult for [them] to put a line where the politician starts and stops.” Whether it’s a matter of sincere belief or self-justification, politicians may perceive providing goods as not just something their constituents expect, but also a matter of helping their neighbors and friends, not bribery. Additionally, some scholars have credited a customary “kinship-derived system of obligation and support” for the prevalence of vote-buying (though it’s important to query culturally deterministic assumptions about corruption). When that kind of “exchange of money and gifts” between politicians and constituents begins to seem normalized, it’s no surprise that it also spills over to  interactions among politicians as well.
  • Weak political parties. We may be more accustomed to associating corruption and graft with the overly strong political parties associated with machine politics.  Vanuatu demonstrates that overly weak political parties can be just as problematic. The country’s weak political parties have led to a parliament full of “shifting alliances and unstable coalitions.” In fact, there have been 21 governments in the past 24 years. With no strong party infrastructure to support their reelection or force them to stick to a platform, politicians engage in a free-for-all to find the advantage that will keep them in power. In that kind of environment, there’s a certain logic to pledging one’s loyalty to the highest bidder (or the person with other benefits to offer).
  • Political institutions without deep roots. Just as political parties have struggled to entrench themselves in Vanuatu, so too have the structures of governance. In part, this difficulty is because Vanuatu is a particularly extreme example of something true throughout much of the Pacific: It is actually composed of many small islands. Many residents are more inclined to feel connected to the community on their particular island, not the more remote government. This tendency is enhanced by the fact that many Pacific Island states imported constitutions and bodies of laws, often from colonizers, that were “inappropriate for local circumstances.” It may partially be this lack of buy-in to governmental institutions that led Vanuatu’s prime minister to believe that the pardon would not cost him his political life: he may have reasoned that voters would be more concerned with how their representatives’ future acts could benefit them than whether the pardon was a betrayal of the spirit of their government.

Even if the aforementioned traits do make anticorruption efforts more difficult, Vanuatu may yet escape this dilemma, and the way it may do so could be illustrative for anticorruption activists in other Pacific Island states. The judiciary has been and likely will still be important to bringing the bribe-takers to justice: Justice Mary Sey convicted them and, if the president is found to have acted outside of his powers in revoking their self-pardon, the Supreme Court will probably rely on the ni-Vanuatu constitution—which allows pardons only after sentencing, something which had not yet occurred—to re-revoke it. If that’s how events play out, it would suggest the potential effectiveness of the courts as a vehicle to fight against corruption.

This effectiveness could seem surprising, as Vanuatu shares many of the obstacles to the judiciary as an anticorruption tool that many other Pacific Island states have. The legislature’s aforementioned predilection for vote-buying and the lack of deeply entrenched political institutions could apply equally to the courts. Judges receive low salaries. Only a small pool of potential judges exists in the country. Despite these challenges, though, Vanuatu has managed to locate a one-two punch that has helped establish an independent judiciary:

  • First, Vanuatu has a chief justice who places great emphasis on the value of judicial independence. Though corruption can sometimes seem like a systemic problem beyond the capacity of any one person to change, the success Chief Justice Vincent Lunabek (appointed by the president) has had in reforming Vanuatu’s dysfunctional judiciary—his encouragement of “self-regulation” and personal example is persistently cited as the primary reason for the change—indicates that sometimes the right person in the right place at the right time can truly make a difference. That may be particularly true for small states, where one person’s reach can cover more of the country. There are downsides to that observation, to be sure; it means that the “wrong” person’s influence is amplified as well. Nevertheless, it offers a glimmer of hope that, at least in the Pacific Islands, transforming part of the government might not be as impossible as it seems at first.
  • Second, ni-Vanuatu courts make use of foreign judges. By having a portion of the bench which does not have preexisting local patronage relationships that could cross the line into corruption, this system allows Vanuatu to minimize the likelihood of a corrupt judiciary. Moreover, it is able to supplement its relatively small pool of “suitably qualified judges.” Provided these judges have sufficient tenure and other legal protections to ensure they are not in thrall to the executive or their appointing body, this system has its benefits—though the concerns it may raise are potentially worthy of their own post (it is perhaps worth noting, though, that by mixing ni-Vanuatu and foreign judges, Vanuatu attempts to offset at least some concerns about neo-colonialism or failure to understand the local context). Regardless, many Pacific Island states already make use of expatriate judges, so there is less room here for them to engage in anticorruption reforms. Nevertheless, Vanuatu’s foreign legal connections have been an important enough part of its judiciary’s success that they are worth highlighting.

Of course, the fact that Vanuatu’s way out of this corruption conundrum may be the constitutional technicality of whether a pardon occurs before or after sentencing may indicate the need for further legal reforms and broader anticorruption efforts—something that would require the corruption-prone parliament’s cooperation. That constraint indicates that there are limits to the judiciary’s effectiveness in the anticorruption battle. Still, even if the courts in the Pacific Islands can’t be revolutionary, Vanuatu shows that there is hope for them to be at least a bulwark against the further spread of corruption.

2 thoughts on “Order from the Court: Judiciaries as a Bulwark Against Legislative Corruption in Vanuatu

  1. Thanks for this post! I’m interested in hearing more about the link between important constitutions that were perhaps inappropriate for local circumstances and the judiciary. What do you think might be the role of the judiciary in developing fundamental constitutional issues and shaping the systems of governance in ways that are more appropriate for local circumstances? The post suggests that certain kinds of changes need to be made by the legislature, but to what extent can broader reforms that promote more “buy-in” and are more adaptable to Vanuatu’s circumstances might be made by courts?

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