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. Continue reading →

‘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 →

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 →

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 →

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.

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 →

With friends like this…

While Tony Abbott was boasting about his story-telling capabilities as he entered the Leaders’ retreat at the Pacific Islands Forum, his cabinet were busy drumming up derision with jokes about climate change. Classy.

The ABC and several other news agencies have reported Mr Dutton’s soon-to-be-infamous quip that “time doesn’t mean anything when you’re about to have water lapping at your door.”

The Liberal government’s blasé, even callous indifference to the plight of their nearest neighbours is enough to make even Fiji Prime Minister Voreqe Bainimarama’s sulk look mature and considered.

To add injury to insult, Fairfax Media obtained leaked drafts of the Leaders’ statement, traditionally circulated once the conclave is complete, showing that a proposed goal of limiting average global temperature rise to 1.5 degrees was struck from the document.

Kiribati President Anote Tong has said that anything less than this constitutes a betrayal of small island states.

Earlier on, Mr Tong raised the possibility that smaller states might leave the Forum if it no longer served their interests. Couple this with Mr Bainimarama’s insistence that Australia and New Zealand take their leave, and it becomes clear that, once again, Australia’s apparent dearth of insight into its own neighbourhood leaves it rudderless, clumsily knocking the china off the shelves.

Maybe it is in fact time for a re-think on how Pacific island states align themselves.

Arguably, New Zealand may be forgiven for its occasional lapses into introspection. But aside from economic aid, it is perfectly reasonable to ask what Australia has done to earn its place as a citizen of the Pacific neighbourhood.

Now, let’s be fair. We can’t for a moment pretend that Australia’s largesse isn’t critical to the region’s development. But what with Nauru’s imploding democracy, Manus on the edge of anarchy and shambolic relations with PNG generally—to say nothing about the utter vacuum where its climate policy should be—there are more than a few Pacific islanders rolling their eyes today and wondering just how much more of this so-called help they really need.