Judges on the Court of Appeals enter the courtroom shortly before delivering their decisions dimissing all appeals in the bribery trial.

Sey ‘Was Fully Justified’

Once again PacLII has proved itself an invaluable public legal resource by making all Appeal Court judgments available online within 24 hours of their being handed down.

The decision that has fixated everyone’s attention is Criminal Appeal Case 12 of 2015, titled Kalosil v Public Prosecutor. The judgment brings together six different appeals by the imprisoned MPs in this year’s bribery case.

The appeals on all sentences and convictions were dismissed.

The decision was written by a panel of four judges, led by Chief Justice Vincent Lunabek. It first considered the core facts of the case—that shortly before 21 October, a Hong Kong resident named Fong Man Kelvin sent half a million US dollars to the Pacific International Trust Company, or Pitco, as it’s known locally.

Shortly afterward, the equivalent of US$ 350,000 was transferred to Moana Carcasses, who was then leader of the Opposition. Much of that money was subsequently distributed in Vt1 million chunks to numerous MPs.

Before another month had passed, a motion of No Confidence was tabled in Parliament, featuring the signatures of all the appellants.

From there, a number of items of contested evidence were considered. Among the most hotly disputed was the testimony of a number of MPs who swore that they had received money either from Moana or from Tony Nari, acting as “a deputy to Mr Kalosil, helping him find recruits to receive the bribes”.

MP Richard Mera became the source of much attention when he testified that he had, metaphorically speaking, flushed the money he received down the toilet.

The appellants claimed that in their testimony, Mr Mera and others had effectively announced themselves as accomplices in the crime, and therefore of their motivation for giving evidence should come into question. They argued that their honesty and reliability were dubious at best, and likely valueless.

The judges accepted that “accomplices may have their own personal motive to deceive the Court”. They further stated that “it would have been good practice for the Judge to have articulated a warning to herself in her judgment…”, but concluded that when all was said and done, Mary Sey demonstrated that she was “aware of the nuances of the evidence” and that she was not blind to the MPs’ possible motivation to deceive.

Besides, the judges stated, the defending counsel never asked Justice Sey to caution herself during the trial.

This was not the only criticism aimed at Mary Sey in the appeals. The appellants argued that she had “misdirected herself on the onus of proof, her ability to find inferences, and her ability to consider the lack of evidence” when the defendants in the case declined to testify in their own defence.

The judges were dismissive of this argument: “The Judge in her reasons carefully set out the onus and standard of proof. She gave herself an orthodox direction on inferences, noting that while the elements of charges have to be proven beyond reasonable doubt, in a circumstantial case the facts relied on in combination to prove the element only have to be proven on the balance of probabilities….”

They also supported Justice Sey on the issue of whether the failure of all of the appellants to testify could actually weigh against them: “While guilt must not be inferred from silence, we have no doubt that a Judge can draw inferences from the failure of an accused to exercise the right to give evidence, when there are proven facts which on an objective examination and in the absence of an explanation are supportive of guilt. If an explanation is required and should be in the accused’s knowledge, the failure to provide that explanation cannot be ignored.”

Some of the appellants argued that the advice to the defendants in the bribery trial to remain silent was tantamount to incompetence by the lawyers representing them, and that this should at least be grounds for a retrial.

This argument was rejected by the Appeals Court. The decision not to testify was a tactical one, they said, and “we can see why given the well known possible consequences of an accused going into the witness box.”

They said that allowing an unsuccessful tactic to provide grounds to revisit the entire case would subvert the judicial process, effectively allowing the defendants to keep trying until they found a winning play.

Finally, and most telling, they weighed in on Justice Fatiaki’s ruling that the Leadership Code charges could not be pursued. Without being asked to do so, they offered their opinion that he erred in his decision, and that the Leadership Code charges should have stood. They also agreed with Mary Sey that Justice Fatiaki’s judgment did not bind her in any way.

Although she was legally entitled to ignore the decision, “She did not do so. To adjourn them was to raise the possibility of double jeopardy.”

In any event, the Public Prosecutor asked to have the Leadership Code charges dismissed, because “the prosecutor could proceed under [sections] 41–42 of the Leadership Code Act seeking an order for dismissal of each of the appellants from office.”

In short, it’s possible that the Leadership Code may yet be invoked.

Finally, the judges found that Mary Sey was sparing, if anything, with her sentences.

“Given [Moana Carcasses’] high position, multiple offending, and the amount of money involved, a starting point of six or seven years could have been justified.”

The Appeals Court panel reviewed submissions concerning the health of some of the appellants, but did not find the material persuasive. Appeals against sentences were all dismissed.

A senior police officer moves spectators back as 11 MPs and three of their lawyers are taken into custody following the issuing of a warrant on Friday.

‘Nobody is above the law’

The words of President Baldwin Lonsdale will resound for some time to come in Vanuatu.

Yesterday, Vanuatu achieved something that still eludes many so-called developed countries. In a first not only in its own history, but arguably in Melanesia and in the Pacific, it set an example that, with a little luck and perspicacity, will keep future law makers from becoming law breakers.

Politics is a difficult, even dirty game, involving hard decisions. And hopefully, nobody is labouring under the delusion that all remaining politicians are unblemished paragons of virtue. But this country has successfully drawn a line, saying in effect, ‘Thus far, but no farther.’

We have not dealt with the problem of bartering cabinet positions for political support. We have not reconciled the judgment with kastom gift-giving and settlement ceremonies. We have not dealt with dozens of other ways in which our elites have sought advantage in the past.

But in respecting the trial process, the courts and the judges, we have preserved a critically important bastion of righteousness in public life.

Many people disagree with the decision that the Appeals Court upheld yesterday—and not simply out of mere allegiance to the affected parties. But as our leaders have done in the past, we trust and expect them to abide by the decision of the highest court in the land.

As Moana said when the initial verdict was handed down, “Respect the decision.” Continue reading


Against Intolerance

It’s possible that the only lesson we can learn from Paris is regret.

Regret for the countless beloved dead. Regret that our sentiment didn’t reach to Beirut, to Damascus and beyond. Regret at the backlash we know is coming.

One of the first measures French President François Hollande was the closing of the borders. Ostensibly, this was to prevent more attackers from joining in the wave of terror still roiling Paris at the time of the announcement, and to prevent the perpetrators from fleeing.

But implicit to this measure is the assumption that foreigners did this; that no true Frenchman could do such a thing.

The ideological fight is being imported into France, that’s true. It is the extension of the ongoing war waged by extreme Islamists who oppose what they call the imperialism of the morally decadent West.

This is classic al Qaeda methodology: hit the soft targets, terrorise the civilian population and drive western governments to further abridge the freedom of their own people in order to destabilise and disrupt government, society and culture alike.

Drive foreign governments to strike harder against the Muslim peoples, creating more resentment and hate, and more soldiers for radical Islam.

This particular series of attacks was aimed at Paris’ youth. Continue reading

One of the stars of the movie Tanna, nine year-old Marceline, smiles during the gala premiere of the movie at Tana Cine in Port Vila. Tanna opens to the public tomorrow.

Barefoot on the red carpet

‘Tanna’ is a gem of a movie, and its stars deserve to shine among the brightest lights of the glitterati

There are two ways to make a movie like ‘Tanna’:

You could spend millions housing and caring for a cast and crew of hundreds, millions more on costumes, sets, make-up and outlandish logistical costs, and even more on lavish, painstakingly built CGI effects.

Or you could take a couple of hand-held cameras and go live in Yakel village for six months.

Both approaches would probably work, more or less. The first will get you The Mission, or Mosquito Coast, or—heaven help you—Fitzcarraldo. But only the latter is capable of capturing the heart of kastom in Tanna.

‘Tanna’ is visually lush and—happily—not polished. The actors have bad hair days, they have calloused hands and dirt under their nails. And this matters, because ‘Tanna’ is not just another hackneyed love story transposed into an exotic locale. It is composed of the essence of life in traditional Vanuatu. Continue reading

Members of the Opposition at a press conference in which they renewed their call for the Prime Minister to resign.

Dissolution is no solution

An increasing number of people are coming to the conclusion that the only way out of the current political impasse is via dissolution of Parliament. While it may prove to be the only workable option, that doesn’t mean it’s what we need, let alone what we want.

Prime Minister Kilman finally spoke to the people of Vanuatu Monday, confirming that he had asked the President for Parliament to be dissolved on the 16th of October.

The President had already made his perspective clear: Dissolution must be seen as a last resort.

He’s not wrong. Contrary to Mr Kilman’s protestations, it is within the President’s purview to defer—if not outright deny—such a request. Presidential powers are largely ceremonial, but they’re deliberately vague precisely because he is expected to exert a moral influence on the country and its leadership, especially under extraordinary circumstances.

In Vanuatu today, our circumstances are nothing if not extraordinary.

Dissolution is a defeat. It is an admission that Parliament has failed to do its job. Continue reading

Willie Jimmy wipes away a tear as he exits, head bowed, from the Supreme Court. Alone of the 15 MPs facing sentencing, Mr Jimmy's sentence of 20 months was suspended for two years.

Yumi, yumi, yumi

Reaction to last week’s prison sentences for the vast majority of MPs convicted of bribery and corruption consisted of equal parts sorrow and approval among the overwhelming majority of Ni Vanuatu. Only a tiny minority expressed glee or happiness at the downfall of some of the country’s most senior and heretofore respected politicians.

Fewer still complained of injustice.

Quoting from other judgments, Justice Mary Sey described the crime of bribery as “cynical, deplorable and deeply anti-social”, “intolerable in a civilised society”, and “inexcusable”, and wrote that “this Court, on behalf of the community, denounces the commission of the offences of corruption and bribery….”

She went on to assign prison sentences to all but one of the guilty parties.

Some people have—rightly—commended Justice Sey on her legal acumen, her refusal to allow the trial to lose momentum and, above all, her utter fearlessness in the face of intense pressure.

We can all take a little credit for her success. Continue reading

Silence becomes consent

In the weeks after it became known that more than a dozen MPs were being investigated for allegedly giving and accepting bribes, we accepted the reluctance among our leaders to comment on an issue currently before the police.

When MPs and their political backers were formally charged under the Leadership Code and the Penal Code, we expected them to stay quiet until the issue was resolved in the courts. But when people said they were unfairly targeted, we respected their right to do so.

When Sato Kilman included many of the accused into his government—and into his cabinet, too—following the no-confidence motion against Joe Natuman’s government, we were given pause.

It’s traditional in parliamentary democracies for MPs under any kind of cloud to clear their name before assuming—or resuming—a cabinet position or similar post.

Unusual as the situation might be, we accepted and respected Mr Kilman’s forceful assertion that all of the accused were innocent until proven guilty, and that no action would be taken until the courts had spoken.

When he allowed Mr Willie Jimmy to continue as Finance Minister even after he had pled guilty and been convicted, we watched with incredulity, but remained silent, even though Mr Jimmy’s continued presence in the position is of questionable legality. After all, we reasoned, things would get sorted before too long.

Even when a guilty verdict on criminal bribery charges was handed down, we still didn’t call for action, taking in good faith Mr Carcasses’ public call to “respect the judgment” and to uphold the process of the law.

But in the face of government officials taking actions that, in the words of the President, are “unlawful” and against the public interest, we are left with no option but to speak.

Mr Kilman’s support for his friends and colleagues is understandable, and many would say commendable. But there is a limit. Past a certain point, failure to speak, failure to act is no longer an act of moderation or restraint, it is an act of toleration.

And past a certain point, toleration is consent.

More and more as the hours and days tick by, Mr Kilman’s silence and inaction is betraying him. What may have looked like strength is looking more and more like an inability to counsel or constrain his own government members.

No formal statement on any of this has come out, save a brief assertion that pardons are a presidential matter and that the Prime Minister had no comment.

Associates of the Prime Minister who have acted as informal proxies in the past have stated unequivocally that Mr Kilman was neither consulted nor informed of the decision to promulgate a letter of pardon. Nor presumably has he assented to the attempted ouster of the Ombudsman, of the Clerk of Parliament or any other rumoured actions against parties involved in the bribery case.

Vanuatu is rapidly becoming a laughingstock in the international community. The ABC are featuring our national unravelling on the nightly news. TVNZ has labelled the country “an embarrassment”. Even the BBC is discussing the President’s “anger” at the situation.

This country needs unity and leadership now more than ever. And still the Prime Minister fails to act.

President Baldwin Lonsdale has used his office to draw a moral line in the sand, and to disown Mr Pipite’s actions. Sato Kilman can no longer remain silent. As the nation’s leader, he must act, and act promptly.

Past this point, silence becomes consent.

President Baldwin Lonsdale returned from an official trip to Samoa in his role as Chancellor of the University of the South Pacific. Earlier that day, Acting Head of State Marcellino Pipite had issued a pardon for himself and 13 other MPs convicted of criminal bribery.


“The head of the Republic shall be known as the President and shall symbolise the unity of the nation.”

That’s how chapter six of the Constitution of Vanuatu describes the head of state: A symbol of the unity of the nation. The rumours and reports that ran rampant around town yesterday did nothing to uphold this country’s sense of unity. Quite the opposite.

While Marcelino Pipite did sign an instrument of pardon Saturday, the document is of questionable legality, but more to the point, it is politically, socially and morally indefensible.

If Mr Pipite’s gambit succeeds, it would, as MP Samson Samsen said so memorably in his testimony, mean we no longer fear God. Our leaders could fairly be said to have lost their moral compass.

When he emerged from the courtroom Friday afternoon, Moana Carcasses reiterated his respect for the integrity of the judicial process. Likewise, he cautioned his supporters to “respect the judgment” and not to take the law into their own hands.

Presumably, he said the same to his peers. First-hand reports of the brief speech that he gave following a meeting at the Prime Minister’s Office Friday evening suggest that he made substantially the same statements then, too.

Surely Mr Pipite was listening? What could possibly possess someone even to contemplate a pardon at this stage?

The Constitution states, “The President of the Republic may pardon, commute or reduce a sentence imposed on a person….” Given that nobody has been sentenced yet, it’s questionable whether a pardon is even legally possible right now.

We do the public a disservice to discuss Friday’s verdict and start bandying pardons about in the same breath. To do so would undermine public trust in our political leaders, which is already at low ebb. Furthermore, such could erode our faith in the power of the courts.

It’s fair to ask: If the players start ignoring the referee’s red card, can we still say they’re playing football, or has the game changed completely?

We fear that this announcement will have exactly the effect Mr Pipite claimed he wanted to avoid. While the Opposition has refrained from commenting and is sure to advise calm, it’s hard to imagine that this will be sufficient to salve rapidly fraying tempers.

This announcement is poorly timed, of questionable legality and leads the country further into uncharted political waters. In every respect, it is contrary to the public interest.

As this newspaper goes to press, there is still no comment from the Prime Minister. People close to him say that he was not consulted in this process, and that he found out about it through the media. Opposition leaders have not received a response from Mr Kilman in spite of repeated requests for an urgent meeting.

People everywhere look to their government for leadership. We expect them to safeguard the unity of the nation. Yesterday’s actions may well do exactly the opposite.


It can’t happen here—yet

All of us, at one time or other, have looked at some new horror emerging on the news ticker from other parts of the world and quietly counted our blessings, whispering, ‘That could never happen here in Vanuatu.’

A story came across the wire yesterday from Hawkes Bay, New Zealand. We’ve re-run it in today’s paper. Mathieu Batick, a twenty-five year-old ni-Vanuatu seasonal worker, was convicted of assaulting a woman and remanded for sentencing.

It’s another story that could never happen here, but that’s no reason to celebrate.

The New Zealand Herald recounts how an astute police officer, realising that a group of revellers had disappeared into an alleyway, reversed his patrol vehicle and checked to make sure everything was all right.

Turning into the service lane, “the headlights shone on a man with pants down standing over a drunken woman who lay on the ground yelling: ‘Leave me alone.’”

Consequently, Mathieu Batick had two charges laid against him: assault with intent to commit sexual violation and indecent assault.

Not only did Mr Batick deny any wrongdoing, he told a probation officer that if he’d done the same thing back in Vanuatu, it wouldn’t have been taken seriously.

The Herald tells us that the woman was drunk and alone and, having just left a bar, was trying to find her way home to Napier at 3am.

Mr Batick admitted that he put his arm around her and touched her inappropriately before he and a friend pulled her into the laneway.

The story is remarkable particularly because it might have been so much worse. The judge is quoted as saying the arresting officer performed “outstanding police work” in spotting and stopping the act before any rape actually occurred.

In Vanuatu, that kind of police work is unheard-of.

The Family Protection Act of 2008 states unequivocally that police must investigate any acts of violence against women or children. It further states that police must enter a domicile if they have a reasonable suspicion that domestic violence is being committed.

Not ‘should’, not ‘may’, but ‘must’.

Our police have a legal duty to protect the public, and are required to take extra care in protecting those most vulnerable to violence and sexual coercion.

We can equivocate and evade, we can hem and haw and hedge all we like; nothing changes the fact that, here in Vanuatu, a woman walking alone at night is in danger. And the police almost certainly won’t help her. It’s not even certain whether her friends would keep her safe, especially in light of Mr Batick’s blithe assertion that pulling a drunken woman into an alley and having his way with her is no big thing.

In many respects, everyone in Vanuatu can rightly be proud of our largely peaceful and harmonious society. But in this respect we should hang our collective head in shame. We need to ask ourselves, ‘how can we make what happened in New Zealand happen here?’



It takes 1.5 to tango

The Pacific Islands Forum has once again demonstrated that it cannot represent the interests of both the developing and the developed world. The climate change ‘commitment’ in final PIF communiqué was watered down (sorry) from supporting a limit of 1.5 degrees average global temperature rise to ‘1.5 or 2’ degrees.

If there were any lingering doubts about whose Forum this really is, they’ve now been put to rest. It’s time the real island states in the Forum either send Australia and New Zealand packing or find another grouping that is willing at least to allow them their own voice.

This is no longer a matter of principle; it’s a matter of survival.

Our front page yesterday featured a story about a two year-old Tannese girl who died, in part because of the after-effects of cyclone Pam and the ongoing El Nino-induced drought. She and her fellow villagers were reduced to eating Nipatem, a local vine. It grows as a weed in gardens, but when boiled it is sweet to chew. It’s of very limited nutritive value; the fibre has to be chewed, then spit out, somewhat like sugarcane.

Students and staff at Tongoa’s Nambangasale School have no choice now but to walk all the way down to the seashore every day to wash. There’s only barely enough water to drink. Nearby Tongariki is even worse off. It has no streams or rivers. The water tank at Craig Cove is dry.

Private charities like WITA Aid are doing what they can to mitigate water shortages in the Shepherds group. And while CARE, Save the Children, UNICEF, Oxfam and others do their best to address both safe access to water & sanitation and food security, they are ultimately hamstrung when privileged nations refuse the play their part.

In the absence of global action, all they can do is offer comfort to a dying planet. Continue reading