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  • Aruba A. T. de Groot Cham

Proposed Amendment to Our Constitution and Why it’s a BIG Deal

The Constitution is the spine of our nation and helps to regulate the relationship between the Government and its People, in such a manner that no one part can mistreat power in any way.

Abraham Lincoln said “Democracy is a rule of the people, for the people and by the people”, meaning that Democracy is a form of Government in which the rulers are elected by the people. We elect our Government to rule our Country and in turn, the elected Government works for our welfare.

All modern Democratic states have three branches of Government, the executive branch, the legislative branch and the judicial branch. This separation of powers is known as Trias Politica. A doctrine which attempts to prevent abuse of powers within a Democratic Government ensuring that no single branch becomes too powerful to control.

The Legislative Branch of the Vanuatu Government is comprised of 52 Members of Parliament, who are directly elected by the people, citizens of Vanuatu, from multi-member constituencies for a 4-year term.

The Prime Minister is elected by Members of Parliament, and he is the effective Head of Government representing the executive branch. The Prime Minister appoints the Cabinet Members as well as the Executive Officers who head the Provincial Governments. These Provincial heads are also members of the electoral college.

Heading our country is an elected President who enjoys a mandated 5-year term. Our President is elected by the electoral college. The power vested in the President of The Republic of Vanuatu is ceremonial with exception to his appointment of Chief Justice of the Supreme Court.

The Supreme Court of The Republic of Vanuatu represents the judicial branch of Government. The Supreme Court is presided over by the Chief Justice and has jurisdiction over civil, criminal and constitutional cases.

Justice is one of the most important institutions in a Democratic Government because it regulates freedom and ensures that the law is observed.

The role of the Judiciary in Vanuatu is to interpret the law, made by the legislative branch, and analyze the similitude between a situation and the written law. A judge makes a decision according to the law, their perception of it and their conscience. Therefore, a Judiciary’s impartiality and independence from Government is of utmost importance. While collaboration between the three branches of Government is necessary for the well being of a democracy, no government or any other party should be able to affect a Judgement.

In such, the Vanuatu Judiciary should be considered the guardian of the freedom of the people and of our Constitution. Every citizen of Vanuatu should know that they can rely on the certain and prompt administration of Justice.

If our laws should ever be dishonestly administered or weakly enforced, our population will stop believing in laws, the people making those laws, and the executive branch who try to make people respect the law. In such an absence of the Judiciary, thieves and undesirables would usurp through force and corruption paving the way for wide spread injustice in our society.

A Judiciary is essential for the maintenance of peace and enjoyment of our fundamental rights.

At the helm of the Vanuatu Judiciary is Chief Justice. Chief Justice has the final word on the development of our law and the constitutionality of legislation. As head of the Supreme Court, the Chief Justice leads an institution that has the final say on jurisprudence followed by all courts in our country and is considered the intellectual leader of our Judiciary Branch.

As head of the judiciary, Chief Justice is required to establish and monitor the standards for the exercise of judicial functions and issue written protocols or directives to give guidance to judges. The Chief Justice is tasked with compiling a judicial code of conduct, which provides the standard for conduct which judges must adhere to. In essence, Chief Justice plays a key role in a wide range of issues that are crucial not only to the functioning of our judiciary, but to the entire structure of Constitutional governance.

Our Honorable Chief Justice Vincent Lunabek was appointed in 1996 and has been pivotal in the creation and evolution of law in our nation ensuring the independence, impartiality, fairness and competence of our Judiciary.

The duty of a judge is not to give effect to the policy of the Government of the day, but to administer justice according to the law without fear or favor and without regard to the policies of the executive branch.

For a society to maintain respect for the law, the law must bear relevance to the society in which it applies. When deciding what is fair and reasonable, a judge seeks to apply basic values representative of community values. A judge cannot therefore, reflect transient shifts in public opinion, prejudice, emotion or sentiment.

In many countries Chief Justices enjoy a life tenure, with or without a mandatory retirement age, meaning that they cannot be forced out of office against their will, barring impeachment. This provision follows precedence of Great Britain and is meant to ensure Judicial Independence, allowing judges to render decisions based on their understandings of the law – free from political, social and electoral influence. History is littered with instances where Presidents attempted to prop their agendas by selecting judicial nominees favorable towards their political agendas.

In order to preserve judicial independence, it is our duty as citizens to shield the court from political calls to fundamentally alter the institution.

The Vanuatu Government, of the people, by the people, for the people have proposed an amendment to our Constitution which seeks to limit Chief Justices’ tenure to 5 years. This landmark decision could potentially see the separation and independence of our three branches of Government collapse, eroding public confidence.

In Vanuatu, the executive branch is party to much civil litigation, often concerned with the rights and obligations between the Government and its citizens. Our current, independent judiciary, ensures that both parties receive equal treatment, a fundamental right.

Should there be a political shift in this balance of power, the consequence to our society could be extremely grave. A judiciary cannot escape the harmful power of politics so long as it is subject to popular election.

Don’t allow politics to erode your fundamental rights and freedoms as enumerated in our Constitution. Ultimately, as citizens of Vanuatu we should decide whether we want an independent, impartial, fair and competent judiciary or an effectively authoritarian regime which places all of your rights and freedoms in the hands of one, politically elected, ever changing individual.

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