Extraordinary Gazette No. 3 of 2020 published on the 13th of July contained Extension of Declaration of State of Emergency Order No. 93 of 2020 which declared a new State of Emergency from the 11th of July until the 31st of December.
This is the first time in the history of Vanuatu that a State of Emergency has been declared for such a long period (five and a half months) and this was made possible by an amendment to the Disaster Risk Management Act during the 1st Ordinary Session of Parliament this year.
This amendment was passed during the period when the Opposition was suspended from Parliament, meaning they did not get a chance to comment on it during the Parliament session.
Immediately after the close of the Ordinary Session, and before President Obed Moses Tallis assented to the Bill, the Leader of the Opposition, Ralph Regenvanu, wrote to the President to request that he consider referring the Bill to the Supreme Court for its opinion on its constitutionality. Article 16(4) of the Constitution says, “If the President considers that the bill is inconsistent with a provision of the Constitution he shall refer it to the Supreme Court for its opinion. The bill shall not be promulgated if the Supreme Court considers it inconsistent with a provision of the Constitution”.
In his letter to President Tallis, the Leader of the Opposition said, “The Bill for the Statutes Law (Miscellaneous Provisions) Act No. of 2020 makes an amendment of the Disaster Risk Management Act by removing the existing 30-day maximum duration of a state of emergency declared under this Act (which can be revoked or extended by the President) and replaces it with a duration of any length of time as the Council of Ministers may decide. So the 30-day maximum duration of a state of emergency is removed.
“This amendment has constitutional implications because, as you are well aware, the Constitution also has provisions for the declaration of a state of emergency. Under the Constitution, a state of emergency must be declared by Your Excellency acting on the advice of the Council of Ministers and can be for a maximum period of only 2 weeks unless extended by a resolution of Parliament supported by two-thirds of its members. But even a resolution of Parliament supported by two-thirds of its members to extend the period of a state of emergency cannot extend it for a period longer than 3 months (article 70(3)).
“The Constitution has set such a high bar (a resolution of Parliament supported by two-thirds of its members) for the extension of the duration of a state of emergency beyond 2 weeks because of the profound implications of suspending the rule of law in Vanuatu indefinitely.
“Parliament ‘makes laws for the peace, order and good government of Vanuatu’ (article 16(1)), and the suspension of such laws is a serious matter requiring the consent of two-thirds of Members of Parliament, and even then only for a maximum period of 3 months.
“The recent amendment of the Disaster Risk Management Act now provides that the Council of Ministers can approve a state of emergency for any length of time they choose, without any restriction.
“It is the opinion of the Opposition that this contradicts the provisions of the Constitution for the declaration of a state of emergency and that therefore the amendment is unconstitutional.
“We request that you take our opinion into account when making your decision whether to assent to the Bill or to refer it to the Supreme Court for its opinion on this question.”
The President, however, responded by saying that there was no specific breach of the Constitution referred to in the letter from the Leader of the Opposition, and proceeded to give his assent to the Bill. The amendment became law when it was gazetted on the 11th of July.