Sope Maautamate v Speaker of Parliament [2003] VUCA 5; Civil Appeal Case 04 of 2003 (9 May 2003)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No. 04 of 2003

BETWEEN:

BARAK TAME SOPE MAAUTAMATE
Appellant

AND:

THE SPEAKER OF PARLIAMENT, HON. HENRI TAGA TARIKAREA
Respondent

Coram: Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Saksak

Counsels: Mr. S. R. Southwood QC and Mr. P. Keyzer for the appellant
Mr. M. B. Edwards and Mr. A. K. Loughman for the respondent

Hearing Date: 6th May 2003
Judgment Date: 9th May 2003

JUDGMENT

This appeal concerns the legal effect of a pardon granted by His Excellency the President of the Republic of Vanuatu under Article 38 of the Constitution.

On 19^th July 2002 the appellant was a duly elected Member of Parliament. That day he was convicted by the Supreme Court of the offences of forgery and sentenced to a term of three years imprisonment.

Section 3 of the Members of Parliament (Vacation of Seats) Act [CAP. 174] provides:-

“3.(1) If a member of Parliament is convicted of an offence and is sentenced by a court to imprisonment for a term of not less than two (2) years, he shall forthwith cease to perform his functions as a member of Parliament and his seat shall become vacant at the expiration of thirty days thereafter.

Provided that the Speaker, or in his absence, the Deputy Speaker, may at the request of the member from time to time extend that period for further periods of 30 days to enable the member to pursue any appeal in respect of his conviction, or sentence, so however that extensions of time exceeding in the aggregate 150 days shall not be granted without the approval of Parliament signified by resolution.

(2) If at any time before the member vacates his seats his conviction is set aside or a punishment other than imprisonment is substituted, his seat in Parliament shall not become vacant as provided by subsection (1), and he may again perform his functions as a member of Parliament.

(3) For the purpose of subsection (1) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default of the payment of, a fine.” (Emphasis added)

The appellant made no request to the Speaker or the Deputy Speaker to extend the 30 day period under s. 3(1). Nor did any event occur that attracted the operation of s. 3(2). However on 13^th November 2002 the President in exercise of powers under Article 38 of the Constitution executed an instrument of pardon, and that instrument was duly gazetted as a Constitutional Order the following day: see s. 16 of the Interpretation Act [CAP. 132]. The Constitutional Order reads:-

“PARDON

WHEREAS Article 38 of the Constitution provides inter alia, for the President of the Republic of Vanuatu to Pardon a person convicted of an offence;

AND WHEREAS BARAK TAME SOPE was convicted and found guilty of certain offences by the Supreme Court of the Republic of Vanuatu on 19^th July, 2002 and sentenced to three years imprisonment.

AND WHEREAS I am of the opinion that the continued imprisonment of BARAK TAME SOPE may be injurious to his health;

In the exercise of the power conferred on me by Article 38 of the Constitution I, FATHER JOHN BENNETT BANI, President of the Republic of Vanuatu, HEREBY PARDON BARAK TAME SOPE of the offences for which he was convicted in the Supreme Court on 19^th July 2002.

MADE at the State Office this 13^th day of November, 2002.

.............................

FATHER JOHN BENNETT BANI

President of the Republic of Vanuatu.” (Emphasis added).

Article 38 of the Constitution provides:-

“PRESIDENTIAL POWERS OF PARDON, COMMUTATION AND REDUCTION OF SENTENCES

38. The President of the Republic may pardon, commute or reduce a sentence imposed on a person convicted of an offence. Parliament may provide for a committee to advise the President in the exercise of this function.”
    

After the pardon was granted the appellant sought to resume his seat as a duly elected Member of Parliament, contending that the pardon had the effect of removing the cause of his disqualification retrospectively from 19^th July 2002 when the conviction and sentence were imposed. The respondent, the Speaker of Parliament, considered that the seat formerly held by the appellant had become vacated at the expiration of 30 days after the conviction and sentence had been recorded, and that the grant of a pardon had not change that position. The appellant then commenced proceedings by originating summons in the Supreme Court seeking the following declarations:-

1. That the plaintiff still remains a duly elected Member of Parliament by virtue of the legal effect of the Presidential pardon;
2. That the Speaker of Parliament forthwith permit the plaintiff to attend the current Parliament sittings.
   

The originating summons was heard by the learned Chief Justice who ordered that the declarations sought be refused. The appellant now appeals to this Court.

It was accepted by both parties in the presentation of their cases before the Chief Justice that under Article 38 of the Constitution the President has a discretion whether or not to grant the pardon, and that in the present case that discretion had been validly exercised. The only issues argued before the Chief Justice concerned the construction of the Constitutional Order, and its legal effect having regard to the provisions of s. 3 of the Members of Parliament (Vacation of Seats) Act. There was no question raised before the Chief Justice concerning the manner in which the President went about exercising the power under Article 38.

The learned Chief Justice in the course of his reasons for judgment held that on the proper interpretation of Article 38, the President had no power to pardon a conviction so as to remove it from the record, or otherwise render it a nullity. His Lordship held that a pardon granted under Article 38 had the effect, prospectively from the time of the grant, of removing the penalty imposed by the Court and all the consequences that flow from the penalty, but no more. It did not remove the conviction. His Lordship held that under the Constitution only a Court exercising appellate jurisdiction had the power to set aside or quash a conviction. Accordingly it was necessary to read down the Constitutional Order in this case to be within power. Even though the Constitutional Order by its terms purported to grant a pardon for the “offence” it had the effect of granting a pardon in respect only of the punishment of imprisonment and its consequences.

The Chief Justice rejected an argument that because the pardon was a Constitutional Order it overrode all the other laws of the Republic of Vanuatu, including s. 3 of the Members of Parliament (Vacation of Seats) Act. His Lordship held that a Constitutional Order is subject to the law unless the Constitution expressly provides to the contrary. In our opinion the Chief Justice was plainly correct to so hold, and the contrary has not been argued before this Court. However, as appears below, the appellant contends that s. 3 of the Members of Parliament (Vacation of Seats) Act must be read down to accommodate the grant of a pardon under Article 38.

The Chief Justice held that by operation of s. 3, at the expiration of 30 days after the conviction and sentence, that is on 19^th August 2002, the appellant’s seat was automatically vacated. As the pardon was granted after the appellant had lost his seat, the pardon could not have the effect to restoring him to it.

In oral argument before this Court, the appellant accepted that a pardon granted under Article 38 is not the equivalent of an acquittal but merely relieves the convicted person from the consequences of the conviction. This is the common law position which flowed from the exercise of the Royal prerogative of mercy: see R. v. Cosgrove [1949] Tas SR 99, Re Royal Commission on Thomas Case [1980] 1 NZLR 602, R. v. Foster [1984] 2 All ER 678, and Kelleher v. Parole Board of New South Wales [1984] HCA 77; [1984] 156 CLR 364. In the Republic of Vanuatu, however, the Constitution is the supreme law (Article 2 of the Constitution), and the effect of a pardon granted under Article 38 must be determined by a consideration of the Constitution itself. We agree with the following passage for the judgment of Sir Harry Gibbs in Attorney General v. The President of the Republic of Vanuatu [1994] VUSC 2 (Civil Case No. 124 of 1994):

“It is impossible to contend that the President succeeded to the position of the British Sovereign, or that his powers are to be assumed to have the same characteristics as those of the British Sovereign. The New Hebrides was ruled as a Condominium and the Constitution of Vanuatu came into being as a result of the agreement and approval of a Constitutional Committee and of a subsequent agreement between the Governments of Great Britain and France. Article 95 (2) of the Constitution continues, until the Parliament otherwise provides, the British and French laws in force or applied in Vanuatu immediately before the day of Independence to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu. This provision does not mean that the position of the President of Vanuatu is governed by the Constitutional laws of either Britain or France, since the Constitutional position of the Heads of States of those two countries is very different one from the other. The nature of the powers and position of the President of Vanuatu can be determined only by a consideration of the Constitution itself. No doctrine of immunity based on the position of the British Crown can be imported into the Constitution of Vanuatu. Further, the courts of Vanuatu are not the President’s Courts; they are set up by the Constitution.”

Sir Harry Gibbs went on to observe that although the power of the President of Vanuatu to grant a pardon is entirely derived from the Constitution, that power is one that corresponds to the power of English Crown, so that English decisions (and we would add the decisions of other common law systems) may be of assistance. In this case the decisions referred to above that state the common law position do provide assistance. They support the interpretation placed on Article 38 by the Chief Justice.

Counsel for the appellant in the course of his very detailed and thorough argument has taken the Court to decisions of the Supreme Court of the United States of America which have construed the effect of a pardon in a similar way.

Counsel contends that the effect of these authorities is to support the general statement appearing in 8 Halsbury, Laws of England, 4^th Ed. at para. 952:

“The effect of a pardon under the Great Seal is to clear the person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence to which he was convicted.”

It is conceded by the respondent that the pardon granted to the appellant in this case is an unconditional free pardon. The appellant contends that s. 3 of the Members of Parliament (Vacation of Seats) Act imposes a disqualification upon a member of Parliament who is convicted and sentenced to more than two years imprisonment. The grant of an unconditional free pardon, it is said, removes that disqualification, and does so with effect from the date on which the punishment was imposed. Thus, the effect of the pardon is to remove that which disqualified the appellant so that he must be restored to his seat as an elected member of Parliament. In so far as a literal application of the words of s. 3 might suggest otherwise, it is submitted that s. 3 must be read down so as to allow the restoration of the seat to an elected member of Parliament who is granted a pardon . This is so as it is beyond the power of Parliament to abridge the constitutional power of pardon under Article 38: see s. 9 of the Interpretation Act that provides that every Act shall be read and construed subject to the Constitution and where any provision of an Act conflicts with a provision of the Constitution, the latter shall prevail.

For reasons which follow, we are unable to accept that the pardon granted to the appellant has the effect contended for.

As the arguments of counsel for the appellant acknowledge, the provisions of s. 3 of the Members of Parliament (Vacation of Seats) Act are critical to the outcome of this case. At times in the course of his arguments counsel came close to contending that s. 3 is constitutionally invalid, but ultimately this submission was not made, nor could it be in these proceedings. If the constitutional validity of an Act of Parliament is to be attacked, it must be done by Constitutional Petition where the Attorney General is a party joined to represent the Republic of Vanuatu: see Article 53 of the Constitution, s. 218 of the Criminal Procedure Code Act [CAP. 136] and Picchi v. The Attorney General, Civil Appeal Case No. 20 of 2001, Judgment 1^st November 2001.

This Court in Carlot v. Attorney General (1988) 1Van LR 407 and Sope v. Attorney General (1988) 1Van LR 411 has held that s. 2 of the Members of Parliament (Vacation of Seats) Act is constitutionally valid. The reasons in those cases lead also to the conclusion that s. 3 is constitutionally valid. In Sope v. Attorney General at 415 the Court said:-

“We have held in Appeal No. 4/88 that s. 2 of the Members of Parliament (Vacation of Seats) Act 1983 is constitutional insofar as there is power to unseat members if that is necessary to ensure the proper functioning of Parliament. To that we would add if it is necessary to ensure that only persons of proper character are members. That is necessary to preserve the reputation and integrity of Parliament. Thus bankrupts and convicts may be excluded.”

By its terms, s. 3(1) of the Members of Parliament (Vacation of Seats) Act provides that two consequences follow if a member of Parliament is convicted of an offence and is sentenced to imprisonment for a term of not less than two years. First, the member “shall forthwith cease to perform his functions as a Member of Parliament”. That provision is in the nature of a disqualification that removes the entitlement of the person concerned to hold the office.

Secondly, s. 3(1) provides that the “seat shall become vacant” at the expiration of the prescribed time. The argument of the appellant characterises this happening as a disqualification of the member, but that is not what the section says. Once the seat becomes vacant there is no longer a member who holds it. The vacation of the seat is an event separate and independent from the disqualification of the member. The seat becomes vacant automatically by operation of the Act. Once the seat becomes vacant, thereafter provisions of the Representation of the People Act [CAP. 146] comes into play, and under the provisions relating to a vacancy, a by-election should occur to fill the seat afresh.

Counsel sought to support the argument that s. 3 (1) operates solely as a disqualification of the member by referring to the Explanatory Note which accompanied the introduction of the Bill which amended s. 3 (1) to its present form. The Explanatory Note said that in its previous form the words used in the section were ambiguous and could be interpreted to mean that a person convicted of any offence however petty would be disqualified. As amended “the section (would) disqualify a member who was convicted of an offence and sentenced to imprisonment for 2 years or more.” We do not think the Explanatory Note helps the appellant’s argument. First, reference may only be made to secondary material such as an explanatory note where the words of the Act passed by Parliament are ambiguous. In the present case, we do not think that there is ambiguity in the words used. Secondly, as we have just noted, the section prescribes two distinct consequences. The first is a consequence of disqualification, and the Explanatory Note can be sensibly understood as referring to that part of the section.

It may be accepted for the purpose of deciding this appeal that as a general proposition the grant of a pardon has the effect in law stated in Halsbury, including the removal of any disqualification. However neither that statement, nor the many decisions to which the Court has been referred by the appellant’s counsel concerning the common law position, establish that a pardon has the retrospective effect for which the appellant contends.

As a matter of logic, the pardon can only operate from the time when it is granted. From that time forward the consequences of the conviction and sentence, including disqualification, are removed. That this is so is recognised in the leading case of R. v. Cosgrove [1948] TASStRp 1; [1948] Tas SR 99 where Morris CJ said at 105-106:-

“Blackstone states the effect of a pardon in Vol. 4, p. 402, as follows:

‘4. Lastly, the effect of such pardon by the King, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new, credit and capacity.’

That passage is entirely consistent with what Hawkins says.

Accordingly, a pardon is in no sense equivalent to an acquittal. It contains no notion that the man to whom the pardon is extended never did in fact commit the crime, but merely from the date of the pardon gives him a new credit and capacity. The plea in my opinion is not sustained.” (Emphasis added).

We do not understand the decision in Hay v. Justices of the Tower Division of London [1890] UKLawRpKQB 4; (1890) 24 QBD 561, on which the appellant heavily relies, to decide otherwise. In that case a statute provided that “Every person convicted of felony shall for ever be disqualified from selling spirits by retail, and no licence to sell spirits by retail shall be granted to any person who shall have been so convicted as aforesaid ...”. The plaintiff applied for a licence to sell spirits by retail. He had at one time being convicted of felony but had received a free pardon. It was held that the disqualification imposed on him by the statute was removed by the pardon, and that the licence might be granted to him. It is significant that at the time when the plaintiff applied for his licence the disqualification had already been removed by the pardon. No question of retrospective operation arose.

Although, once it is granted, the pardon “makes him a new man” (Halsbury) it is clear that a pardon does not undo events that have already happened, or remove rights that have become vested in a third party. This most clearly appears from the decisions of the United States of America to which the Court has been referred. Counsel for the appellant relied on the following passage from the majority judgment in Ex parte Garland [1866] USSC 33; 71 US 333 (1866) at 380-381:-

“Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

However, immediately following this paragraph the judgment continues at 381-

“There is only this limitation to its operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.”

In Knote v. United States [1877] USSC 124; 95 US 149 (1877), in a unanimous decision, the Supreme Court of the United States said, after citing with approval Ex parte Garland and number of other decisions to like effect:-

“A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offense, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offense being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offense, or which have been acquired by others whilst that judgment was in force.” (Emphasis added)

In the present case, if the literal meaning of words s. 3(1) of the Members of Parliament (Vacation of Seats) Act are given full effect, the seat became vacant at the expiration of the prescribed time. That would be an event that is not and cannot be reversed by the later granting of a pardon to the member of Parliament under Article 38. It is for this reason that counsel argues that the words in s. 3(1) must be read down so that a pardon can operate to allow the seat to be restored. How the section is to be read down, or how the words used are to be construed to achieve this effect is not stated in counsel’s submissions.

In our opinion to achieve the effect contended for, much more than merely reading down s. 3 in some unspecified way would be required. Once the seat is vacated, the Representation of the People Act provides the procedures by which the seat is to be filled. It would be necessary also to impose a limitation or qualification on the provisions of that Act so as to allow the election process to give a way to the reappointment of the former member in the event of a pardon. To achieve the result contended for would involve a major rewriting of the law to bring about this effect. It is beyond the power of the Court to do this. The role of the Court is to interpret, not rewrite, laws enacted by Parliament.

Counsel for the appellant conceded in the course of argument that if and when a new member is duly elected to fill a seat that has been vacated under s. 3 (1), a pardon thereafter granted to the former member cannot operate to remove the new member from office. In such a case, the pardon could not have the effect of reinstating the former member. In the present case, there has so far been no election to fill the vacant seat, and it is said that this problem does not arise. However, once it is conceded that a pardon cannot restore the former member to the seat if the seat has been filled by a duly elected new member, in our opinion it must follow that, as a matter of construction, there is no implied limitation to be read in s. 3(1) to the effect that the literal meaning of the words in that section do not apply in the event of a pardon. In short, we do not consider that the plain reading of s. 3(1) is to be qualified so as not to apply in a case where a convicted member of Parliament later receives a pardon.

It was suggested in the course of argument that as Parliament when enacting s. 3 gave specific and express attention to the judicial power to set aside a conviction or punishment it should be inferred that Parliament overlooked the power of the President to grant a pardon under Article 38. We are unable to accept that argument. Section 3 could have, but does not, provide that the seat becomes vacant immediately upon conviction and imposition of sentence. Rather, the seat becomes vacant at the expiration of a period of time. That a period of time is allowed is consistent with Parliament having recognised that other events might overtake the conviction and sentence so that the member again becomes qualified to continue holding the seat.

The fact that Parliament referred expressly to the appeal process does not give rise to the inference that Parliament did not recognise that the President could act to grant a pardon under Article 38. If the convicted member considered that the conviction and penalty should not have been imposed, or was unduly harsh such that the member might gain the grant of a pardon, it could be expected that the member would not only seek a pardon but would at the same time seek to appeal. The provisions of s. 3(2) would enable a member to gain further time within which an application to the President could be considered.

In our opinion the learned Chief Justice was correct to refuse the declarations sought by the appellant. In our opinion the appeal must be dismissed with costs against the appellant.

Dated at Port Vila, this 9^th day of May 2003.

BY ORDER OF THE COURT

Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Saksak