Tuvaluans protesting against their Australian chief justice … Demonstrations and petitions seeking the removal of Charles Sweeney QC … Judge rules on contentious political issue … Locals inflamed … Inspiration for supporters of Senator Culleton … From our man in Tuvalu 

IF you think the validity of Rod Culleton and Bob Day as adornments of the Australian senate is distracting enough, it pales next to the excitements over parliamentary eligibility in Tuvalu. 

The chief justice of Tuvalu, Australian barrister Charles Sweeney QC, found that former prime minister Apisai Ielemia was ineligible to sit an a member of parliament because he was in breach of constitutional requirements. 

This has ruffled a few local feathers, as if rising sea waters lapping at everyone’s feet were not concern enough. 

The MP, who had been prime minister between 2006 and 2010, had been convicted of corruption offences on April 27, 2016 and sentenced on May 3 to 12 months imprisonment by way of weekend detention. 

Ielemia applied for a stay on May 3 and that was granted a month later on June 2. His conviction was quashed on appeal. 

In the meantime, he had commenced to serve his sentence from May 6 and Sweeney CJ found that by serving a sentence of imprisonment Ielemia was in breach of the constitutional requirement that an MP must retain at all times his qualification to be elected. 

“If, at any time during his term of office, he loses the status of a person qualified to be a candidate for election, he ceases to be a member of parliament and the position cannot be thereafter cured by the disqualification having ceased to apply to him.” 

However, if the MP had obtained the stay of his sentence of imprisonment earlier he would not have triggered the provision that determined his ineligibility. 

The chief justice’s ruling inflamed political sensibilities with the pro-Ielemia forces incandescent that their man was now no longer an MP. 

According to local media reports a petition with around 800 signatures urged the Tuvalu governor general to dismiss the CJ.  

“We the undersigned wish to seek your urgent intervention to remove Mr Charles Sweeney from the position of Chief Justice of Tuvalu … 

Tuvalu is in dire need for a clean and fair justice system where every citizen should feel safe and confident with its judiciary. 

If the top of the hierarchy is tainted with political affiliation and association with the current political system, nobody will feel confident about the fairness of the decisions that the court will be making.”

One of the contentions is that Sweeney was out of line in deciding that Ielemia was ineligible and that he should have confined his attention to whether the actions off the Speaker were correct or not. 

Other reports carried news of street demonstrations in the capital Funafuti with placards proclaiming that democracy is under threat. The prime minister Enele Sopoaga took to the airwaves to say that the protestors should confine their demonstration to the four walls of a community hall. 

The political context is, to say the least, murky. Ielemia’s removal from parliament was commenced by a motion moved by the PM. It was carried and the Speaker then took steps to have the convicted member ousted. 

Enter the acting attorney general for Tuvalu, who had different views about whether Ielemia was ineligible to be an MP. She wanted ex parte orders vacating the Speaker’s ruling. 

The AG’s submission was bizarre. It made no reference to the fact that Ielemia had commenced to serve his sentence. Sweeney gave directions that the summons be amended so that the Speaker and the ousted MP were joined as respondents. The AG claimed this “made no sense” and unsuccessfully pressed for the case to be heard without them. 

Counsel for Ielemia said she had no objection to Sweeney hearing the matter. This arose because the CJ had previously acted for one of Tuvalu’s council of elders in a petition challenging the election of Ielemia. 

Ielemia’s lawyers came up with a strange argument that the relevant constitutional provision (section 95(1)(a) meant that disqualification only arose if an MP was required to serve a sentence for a second offence. It was difficult to work out how how that could be so. 

In his judgment Sweeney issued a stern rebuke to the AG and her office. In Tuvalu, unlike the George Brandis model, the attorney general is supposed to be an independent professional adviser to the government and not a political player. 

“The paramount role of the attorney general is to act as the chief legal adviser to the government. That means she is, and must always hold herself ready and available to be, the chief legal adviser to the cabinet. 

In the present case, the evidence led in the attorney general’s own case shows that the attorney general gave unsolicited advice to the Speaker and disclosed that unsolicited advice to all members of Parliament. As a result, it became impossible for confidential advice on the same subject to be given to cabinet.”

People in the AG’s office were also in the frame:

“The practice appears to have grown up of legal officers of the Attorney General’s office appearing against the interests of the government. In my opinion, this practice is constitutionally impermissible.” 

The Fiji owned Islands Business magazine described the rebuke of the attorney general as “unprecedented”. 

Maybe we’ll see masses of Rod Culleton’s supporters demonstrating and petitioning for the removal of Justices Kiefel, Bell, Gageler, Keane and Nettle – if they rub him out.