Sope v Republic of Vanuatu [2004] VUCA 20; Civil Appeal Case 15 of 2004 (5 November 2004)

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

CIVIL APPEAL CASE No. 15 of 2004

BETWEEN:

BARAK TAME SOPE
Appellant

AND:

THE REPUBLIC OF VANUATU
First Respondent

AND:

THE OMBUDSMAN OF THE REPUBLIC OF VANUATU
Second Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Hamlison Bulu

Counsel: Mr. John Malcolm for the Appellant
Mr. Sampson Endehipa, Attorney-General for the First Respondent
Mrs. Heather Lini Leo for the Second Respondent
Mr. Nicholas Mirou, Public Prosecutor who was invited to appear

Date of hearing: 27th October 2004 & 3rd November 2004
Date of judgment: 5th November 2004

JUDGMENT

There was listed before this Court an appeal against the decision of Justice Treston in Supreme Court Case No. 49 of 2004 delivered in Port-Vila on 26 July 2004. He dismissed a constitutional application which had been brought by Mr. Sope challenging a recommendation in a report entitled “Breach of Leadership Code by Mr. Barak Sope” issued by the Ombudsman dated 29^th January 2004 on the ground that it was unconstitutional. For the first time this Court is required to consider the effect of a Presidential Pardon granted under Article 38 of the Constitution.

The appeal was advanced on the basis that the Judge was wrong in fact and law:-

1. In finding that breach of the Leadership Code offences for criminal offences is or was confined to a Section 27 conviction.
   
2. In finding that the Report was not unconstitutional.
   
3. In finding that the report was on-going in all the circumstances.
   

This Court immediately took the view that it was essential in dealing with this matter that we consider and rule upon the fundamental underlying question which arises with regard to this case and not become deflected into issues which are unrelated to the ongoing reality.

In particular we note that there is now a report of the Ombudsman 1185/2004/05 dated 3^rd August 2004 described as “Public Report on the Alleged Breach of the Leadership Code by Mr. Barak Tame Sope Maautamate” which has been published.

This report is the conclusion of an ongoing process which was undertaken in terms of both the Ombudsman Act and the Leadership Code Act. It specifically recommended that the Public Prosecutor commence a prosecution against Mr. Sope under Section 27 of the Leadership Code Act for breach of the Leadership Code Act constituted by his conviction for forgery.

The Ombudsman is created in Part II of Chapter 9 of the Constitution. A Leadership Code is created under Chapter 10. These two constitutional provisions are carefully reflected in the Ombudsman Act No.27 of 1998, and in the Leadership Code Act No.2 of 1998.

A variety of functions and powers of the Ombudsman are enumerated in those 2 statutes. Part 5 of the Leadership Code Act gives the Ombudsman a pivotal role in investigating and reporting on the conduct of any leader other than the President of the Republic, the Judicial Service Commission, the Supreme Court and other judicial bodies. Leaders can be charged with and convicted of breaches of Sections 19, 20, 21, 22, 23, 24, 26 and 27 of the Leadership Code Act with penalties provided for in Section 40. Other consequences can be considered under Section 41 and the following Sections in Part 6.

This litigation was founded on an alleged breach of Section 27 of the Leadership Code and we deal with the matter on that basis alone.

By the time we turned to hear the respective oral submissions, Mr. Malcolm had abandoned the initial grounds of appeal and concentrated his submissions solely on the meaning and effect of the pardon.

We note that in Criminal Case 139 of 2004 on the 9^th August 2004, the Public Prosecutor charged Mr. Sope with one count of breach of Section 27 of the Leadership Code Act No. 2 of 1998 by reason of his conviction for forgery on 19^th July 2002 under Section 139 of the Penal Code Act [CAP. 135]. The outcome of this appeal will have consequences for that case and other litigation.

Section 27 of the Leadership Code Act provides:

“1. A leader who is convicted by a court of an offence under the Penal Code Act [CAP 135] and as listed in subsection (2) is:

(a) in breach of this Code; and

(b) liable to be dealt with in accordance with sections 41 and 42 in addition to any other punishment that may be imposed under any other Act.

2. The offences are:
   

(a) intentional homicide;

(b) intentional assault causing death or damage of a permanent nature.

(c) rape or attempted rape;

(d) abduction;

(e) incest;

(f) sexual intercourse with a girl under care or protection;

(g) indecent assault;

(h) a serious intentional assault;

(i) perjury;

(j) making a false statement;

(k) fabricating or destroying evidence;

(l) conspiracy to defeat justice;

(m) corruption and bribery of officials;

(n) theft or misappropriation or false pretences;

(o) fraud or fraudulently obtaining credit;

(p) receiving property dishonestly obtained;

(q) demanding with menaces;

(r) robbery;

(s) extortion;

(t) forgery or uttering forged documents;

(u) unlawful discrimination;

(v) unlawfully entering;

(w) any of the offences under Part XV of the Representation of the People Act [CAP. 146];

(x) attempting to commit any of these offences.

3. This section does not limit the power of a court to deal with a person under any other Act.”
   

As Justice Treston noted in his judgment in this case ‘the essential elements’ of a Section 27 prosecution under the Leadership Code Act are (a) the defendant is a leader and (b) the defendant has been convicted by a Court of an offence under the Penal Code Act as listed in Section 27(2).

With that we entirely concur. The crucial question which has to be determined is whether as a matter of fact and law there is a conviction which remains extant and can now fulfil the second fundamental element.

In our judgment the critical facts are:-

1. In 2001 Mr. Sope was a Member of Parliament and Prime Minister. As such he was a leader as defined in both the Constitution and the Leadership Code Act. There is no argument about this point.
   
2. As a result of certain activities Mr. Sope was charged with two counts of forgery contrary to Sections 139 and 140 of the Penal Code Act [CAP. 135].
   
3. On 19 July 2002, he was convicted on those two charges and subsequently sentenced to three years imprisonment.
   
4. On 13 November 2002, Mr. Sope was pardoned by the Head of State of the offences of which he was convicted.
   
5. In the meantime, the Office of the Ombudsman received a complaint against Mr. Sope for an alleged breach of the leadership code. An investigation of the matter was commenced.
   
6. A number of approaches could have been embraced by the Ombudsman under the Leadership Code Act. In fact all attention and focus were paid to Section 27 and no other possibilities were considered.
   
7. There was a written draft paper prepared dated 2 December 2002 which was provided to Mr. Sope for comment on 15 May 2003.
   
8. On 29 January 2004 a second working paper was produced and sent to Mr. Sope for comment, but none were received.
   
9. Mr. Sope filed a constitutional petition alleging that the report of 29 January 2004 was unconstitutional.
   
10. On 26 July 2004 Justice Treston dismissed this petition.
    
11. On 3 August 2004 the Ombudsman issued and made public the final report referred to above.
    

As there can be no debate or challenge about the fact that Mr. Sope was a leader what is of fundamental importance is whether he has a conviction for any of the charges enumerated in Section 27(2) which can be relied upon.

In other words what has to be determined is whether there could ever be the first step in any prosecution for a s.27 Leadership Code Act offence by proving the existence of a relevant criminal conviction.

That requires a determination of the meaning and effect of the pardon issued by the Head of State on 13 November 2002.

The pardon is in the following terms:

“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 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 on 19 July 2002.

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

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

FATHER JOHN BENNETT BANI

President of the Republic of Vanuatu”

The operative words are that the President pardoned Mr. Sope “of the offences for which he was convicted”.

There is no question but that the President has a power under Article 38 of the Constitution which provides:

“The President of the Republic of Vanuatu 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”.

In Civil Case 199 of 2002, the meaning and effect of that Article was considered by the Chief Justice in a claim by Mr. Sope with regard to the meaning of the Members of Parliament (Vacation of Seats) Act [CAP. 174].

The fundamental conclusion the Court reached was that the Presidential Pardon had effect only from the date of the Pardon and had no retroactive effect. Thus by reason of operation of law, once 30 days had elapsed after the conviction the seat had become vacant, and a subsequent pardon could not alter what had already happened.

The Chief Justice expressed views which were not essential to the determination of the case, that under Article 38 of the Constitution the power was restricted to issues relating to sentence on the basis of the English Court of Appeal decision in R -v- Foster [1984] 2 All E.R 679.

This Court heard an appeal in the same matter in Civil Appeal Case 4 of 2003; [2003] VUCA 5. It is apparent from our discussion of a number of authorities that the Court of Appeal was not necessarily endorsing the view that the Article 38 power was restricted to issues of consequences of the conviction particularly factors relating to sentence. What we said was:

“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.”

In the present case the meaning and effect of a pardon is of crucial importance. If the pardon totally removes the conviction then there is as a matter of law thereafter no conviction. Accordingly no proceeding under the Leadership Code can be initiated because one of the pre-requisites contained in Section 27 is the existence of a conviction.

This is a simple case of constitutional interpretation. The Court in this exercise is not concerned with the merits of the factual situation.

In our judgment, Article 38 provides a power in two ways for the President. First he may pardon a person convicted of an offence. Secondly, he can commute or reduce a sentence imposed on the person convicted of an offence.

We heard an argument that the power in Article 38 is restricted solely to dealing with the sentence in some way. Such a reading would mean that the word “pardon” before the comma is redundant. “Pardon” would add nothing to the other words of the Article. There is a fundamental rule of interpretation that every word in a Constitution, a statute or a contract is to be given a meaning.

We have no doubt that there is the power to “pardon” a person convicted of an offence which is separate and distinct from the power to “commute or reduce a sentence imposed”.

This Court discussed in Civil Appeal 04 of 2003 a number of authorities as to how a pardon operates:-

We note again what is said in 8 Halsbury, Laws of England 4^th Edition 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.”

The position was succinctly summarized in Hay v. Justices of Tower Division of London [1890] UKLawRpKQB 4; (1890) 24 QBD 561. A law in England held that “every person convicted of felony shall for ever be disqualified from selling spirits” Mr. Hay was convicted. He was afterwards pardoned. The question was whether he could then hold a licence. Pollock B said:

“The general question of law next to be considered is, what was the effect of the pardon which John Hay obtained? By the prerogative of the Crown the pardon extends far beyond the mere discharge of the prisoner from any further imprisonment. It is a purging of the offence. The King’s pardon, says Hale, “takes away pœnam et culpam”: 2 P.C. 278. This points to the character, condition, and status of the convict. Again, in 2 Hawkins’ P.C., s.48, the author says that pardon “does not so far clear the party from the infamy and all other consequences of this crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good witness...” So in another text-book of authority, 1 Chitty’s Criminal Law, 775, it is said that “the effect of a pardon like that of the allowance of clergy, is not merely to prevent the infliction of the punishment denounced by the sentence, but to give to the defendant a new capacity, credit and character.”

The approach is found also in Australia in R. v. Cosgrove [1948] TASStRp 1; [1948] Tas SR 99. Morris CJ said at 105-106:-

“Blackstone states the effect of a pardon in Vol. 4, p.42, 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.”

The point had been expressed in similar terms more than a century earlier in the U.S.A. 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 any 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.”

It was reiterated in Knote v. United States 95 US 1949 (1887):-

“A pardon is an act of grace by which an offender is released from the consequences of his offence, 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 offence, 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 him a new credit and capacity, and rehabilitates him for to that extent in his former position.”

These cases and many others make clear that a pardon has no retroactive effect, which was the fundamental issue in the Supreme Court in CC 199 of 2002 and on appeal before the Court of Appeal in CAC 04 of 2003. It is not the point here. On this appeal we have to decide as to what the forward effect of a pardon is as a matter of law.

We have given most anxious consideration to the approach of the English Court of Appeal in R v. Foster and its consideration of R v. Cosgrove and the New Zealand decision of Re Royal Commission on Thomas Case [1980] 1 NZLR 602. We are satisfied that the crux of R v. Foster is the particular wording of the instrument of pardon granted under prerogative power by Her Majesty the Queen. In Vanuatu there is a specific constitutional authority expressed in different terms which means R v. Foster can be distinguished.

However, even if we were to adopt the reasoning and approach of R v. Foster the practical effect of the pardon would not be different. The element of a conviction in Section 27 of the Leadership Code Act would have to be considered as a pain penalty of punishment which ensues from the conviction.

All authorities are unanimous that after a pardon, even if a conviction may remain, all of its consequences are gone. Even if it was held that the conviction as such was not considered to be eliminated, it is without force effect or consequence. It cannot be used to fulfil the Leadership Code requirement of a conviction. This approach is repeated recently in re Elliot Abrams 689 A 2d 6 (1997).

The sole question for our decision is whether there is now in existence a conviction which can be proved to bring Section 27 of the Leadership Code into effect. There is not one. The other powers of the Ombudsman do not arise before us. This case is solely about the particular power under Section 27 of the Leadership Code Act.

The potency of the conviction is gone from the date the Instrument of pardon is published in the Gazette. The Ombudsman had no basis for recommending any proceeding against Mr. Sope for a breach of Section 27 of the Leadership Code Act in respect of his 2002 convictions for forgery because of the pardon. As we noted at the last session of the Court of Appeal in Criminal Appeal Case No. 2 of 2004, PP v. Atis Willie [2004] VUCA 4 any exercise of a constitutional or statutory power can be challenged for legality. There has been no such action in respect of Mr. Sope’s pardon so it must be given effect by all.

Those involved in other litigation, particularly the Public Prosecutor, will need to reflect this finding and decision in other pending cases in the Court system involving Mr. Sope.

This appeal is accordingly allowed and all Orders made in the Supreme Court are quashed. Mr. Sope is entitled under his petition to a declaration that the report of the Ombudsman of 3 August 2004 which recommends his prosecution for an offence under Section 27 of the Leadership Code Act is without legal justification and unconstitutional.

Mr. Sope is entitled to normal costs in this Court against the Attorney-General and the Ombudsman jointly as agreed, or determined by the Supreme Court. The Public Prosecutor appeared at our request as a party with an interest. We specifically do not make the costs order against him.

There will be no costs orders in respect of the original hearing in the Supreme Court as the determinative issue on the appeal was not argued at first instance.

DATED at PORT-VILA this 5^th day of November 2004

BY THE COURT

Vincent LUNABEK CJ
Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI J
OLIVER SAKSAK J
Hamlison BULU J