IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 49 of 2004

BETWEEN:

BARAK TAME MAAUTAMATE SOPE
Applicant

AND:

THE REPUBLIC OF VANUATU
Defendant

Coram: Justice Treston

Mr. Malcolm for the Applicant
Ms. Lini-Leo & Ms. Wano for Respondent - Ombudsman
Ms. Wodak for Respondent - Public Prosecutor
No appearance on behalf of the Attorney General

Date of Hearing: 19 July 2004
Date of Decision: 26 July 2004

RESERVED JUDGMENT

APPLICATION

In this Constitutional application the Claimant, Barak Tame Maautamate Sope, applies for a declaration that the recommendation in a report entitled "Breach of Leadership Code by Mr. Barak Sope" issued by the Ombudsman dated 29 January 2004 is unconstitutional. He also seeks costs. The grounds are that the recommendation in the report is contrary to Articles 5 (1) (k), 5 (2) (h) and 55 of the Constitution of the Republic of Vanuatu.

The applicant also seeks a declaration that any prosecution of the applicant taken by the Public Prosecutor would be unlawful and seeks an order prohibiting publication of the Ombudsman's report.

The Applicant has filed a sworn statement. The Respondents have not sought to cross-examine him and have filed no sworn statements in response.

FACTS

The applicant was the Prime Minister of Vanuatu from November 1999 to April 2001. On 19 July 2002 he was convicted on two counts of forgery of Government Guarantees during the period that he was Prime Minister. He was sentenced to 3 years imprisonment. On 13 November 2002, the then President of the Republic pardoned the Claimant from the un-served part of his sentence.

The Supreme Court later held that the applicant did not remain a Member of Parliament and he lost his parliamentary seat. That decision was upheld by the Court of Appeal on 9 May 2003.

On 3 December 2002, the Ombudsman had produced a document entitled "Working paper on the alleged breached (sic) of the Leadership Code by Mr. Barak Sope Maautamate". A copy of the document was provided to the applicant for his commentary on 15 May 2003. That contained the following recommendation: -

"That the public Prosecutor should decide within 3 months of receiving this report, whether there are sufficient grounds of evidence to support a prosecution under the Leadership Code Act."

On 28 May 2003 the applicant's solicitor wrote a response contending that the report appeared vexatious and that the matter had already been dealt with by the criminal courts and that there were elements of double jeopardy involved. The letter required the report not to be published. No response was received.

In or about December 2003 the applicant contested a by-election and was elected back into Parliament.

On 9 January 2004 the Ombudsman produced a further document entitled "Working paper on the breach of Leadership Code by Mr. Barak Sope". This was sent to the applicant by letter dated 29 January 2004.

The recommendations contained in the later document were: - 

"Recommendation 1:	The Public Prosecutor commence a prosecution against Mr. Sope under sections (sic) 27 of the Leadership Code Act for breach of Leadership Code Act constituted by his conviction for forgery.

Recommendation 2:	The Public Prosecutor must decide within 3 months of receiving this report, whether there are sufficient grounds or evidence to support a prosecution under this Code"

The applicant's lawyer responded in a letter dated 12 February 2004 that the report was unconstitutional. The Ombudsman replied by letter of 24 February 2004.

SUBMISSIONS

The applicant submits: -

1.	It was open to the Prosecutor to lay a charge under S. 27 at the time of the trial for forgery.

2.	The reports of the Ombudsman require the Public Prosecutor to issue charges under the Leadership Code or to decide if there is sufficient evidence.

3.	The reports contain an implied threat requiring the Prosecutor to proceed or face further inquiry or public rebuke.

4.	The reports are nothing more and nothing less than an attempt to further embarrass and ridicule Mr. Sope.

5.	The demand for prosecution is unconstitutional, and does not accord equal treatment to the applicant.

6.	The demand for a further prosecution puts the applicant at risk of double jeopardy.

7.	The Ombudsman is conducting an enquiry on a matter that has previously been the subject of an enquiry.

The Ombudsman submits: -

1.	The two reports relate to the same enquiry, which is not yet complete, and copies of the documents were provided to Mr. Sope in accordance with the Ombudsman Act No. 27 of 1998.

2.	It is premature for the Court to consider any infringement of Article 5 (2) (h) of the Constitution and submissions as to whether the applicant could have been charged and convicted at the same time as the forgery matters can be considered only if and after the Public Prosecutor decides to prosecute the applicant.

3.	It is constitutionally proper for the Ombudsman to make recommendations at the working paper stage.

4.	The applicant is attempting to prevent the Ombudsman from performing his duties and functions under the Constitution, the Ombudsman Act and the Leadership Code Act.

5.	The Ombudsman is not directing or controlling the Public Prosecutor.

The Public Prosecutor has elected to make submissions effectively in the role of amicus curiae. He submits: -

1.	That a prosecution could take place against the applicant in breach of section 27 of the Leadership Code Act (No. 2 of 1998) and that his right to protection of the law as enshrined in Article 5 (1) (d) of the Constitution would not be infringed if such a prosecution did occur.

2.	Such a prosecution would not be for the same offence. The original prosecution was for forgery under section 139 (1) of the Penal Code [CAP. 135] with completely different essential elements from any proposed prosecution under Section 27 of the Leadership Code Act.

3.	A section 27 conviction could not have been entered at the time of the first conviction. It is a condition precedent to a prosecution under section 27 that the claimant has been convicted by a Court of an offence under the Penal Code Act, and such a conviction could not be entered until the conclusion of the first trial.

4.	A section 27 prosecution would not infringe the applicant's right to equal treatment under the law or administrative action.

5.	The working papers do not infringe the independence of the Public Prosecutor as enshrined in Article 55 of the Constitution. 

The Prosecutor went on to submit that the Ombudsman has the responsibility under Ombudsman Act to investigate and report on the conduct of a leader (other than the President) if the Ombudsman has formed the view on reasonable grounds that a leader may have breached the code. The Ombudsman is then required to give a copy of such a report to the Public Prosecutor and must follow the procedure set out in the Ombudsman Act. There could not at this stage be a breach of Article 55 but, in any event, the second recommendation does not seek to direct or control the Public Prosecutor's functions but simply puts forward a recommendation for consideration by the Public Prosecutor.

LAW

Some assistance can be obtained from decided cases as to the approach to be take to a constitutional application such as this. 

In Picchi v Attorney General [2001] VUCA 12; CAC No. 20 of 2001 the Court of Appeal said at page 5: -

"Breaches of constitutional rights must be based on reality and not on some theoretical or assumed scenario".

The Court of Appeal had also reaffirmed in Francois & ors v Ozols & ors [1998] VUCA 5; CC155 of 1996 that: -

"The rights and freedoms guaranteed by Article 5 are to be accorded on generous interpretation", and that

"The provisions of Articles 6 (and also those of Article 53) provide a new procedure for seeking the review of administrative decisions by organs of government and public officials, and the correction of 'inappropriate', unlawful or unjust exercises of government power."

In Timakata v Government [1994] VUSC 3; CC No. 5 of 1994 Downing J said: -

"I might add that when interpreting the Constitution some consideration has to be given to its functionality. If interpreted too rigidly it could become a document of great constraint rather than one which sets forth the rights of the people and government structures of the Republic of Vanuatu."

I approach my task mindful of these principles and aware that the application falls to be dealt with under the Constitutional Procedures Rules Order No. 26 of 2003.

FINDINGS

Section 34 of the Leadership Code Act No. 2 of 1998 provides as follows: -

"ROLE OF OMBUDSMAN

(1)	The Ombudsman must investigate and report on the conduct of a leader (other than the President):

(a)	if the Ombudsman receives a complaint from a person that a leader has breached this Code; or

(b)	if the Ombudsman has formed the view on reasonable grounds that a leader may have breached this Code.

(2)	The Ombudsman must give a copy of the report to the Public Prosecutor and where, in the opinion of the Ombudsman, the complaint involves criminal misconduct, to the Commissioner of Police within 14 days after forwarding his or her findings to the Prime Minister under Article 63 (2) of the Constitution.

(3)	Where an Act provides for the functions, duties, and powers of the Ombudsman, the provisions of that Act will apply when the Ombudsman is carrying out an investigation under this Act.

(4)	Notwithstanding subsection (3), for the purpose of fulfilling any function or duty lawfully conferred or imposed on the Ombudsman under this Act, the Ombudsman:

(a)	shall have full access at all convenient times to Government contracts, documents, books, accounts and any other material that relates to and is relevant to the investigation; and 

(b)	may, by notice in writing signed by the Ombudsman require any person having possession or control of any Government contract, documents, books, accounts or any other material that relates to and is relevant to the investigation to deliver such document or documents to the Ombudsman at such time and place as is specified in the notice; and

(c)	may cause extracts to be taken from any Government contract, documents, books, accounts or any other material that relates to and is relevant to the inquiry without paying any fee therefor.

(5)	Where a person fails to comply with a notice or any other requirement under subsection (4) the Ombudsman may apply to the Supreme Court for an order requiring that person to do so.

(6)	Where the complaint is against the Ombudsman the investigation will be carried out by the Attorney-General in accordance with the procedure set out in this part as if the Attorney-General were vested with all the functions, duties discretions and powers of the Ombudsman."

Even under S. 11 (2) (b) the Ombudsman Act No. 27 of 1998 and Article 62 (1) (c) of the Constitution, the Ombudsman can exercise his functions on his own initiative. In this case the Ombudsman has elected to initiate the report on the applicant and his conduct and is in the process of carrying out an enquiry but has not yet made public the result of such enquiry under S. 34 (1) of the Ombudsman Act.

I consider that it would be wrong for this Court to rule that that process should be curtailed and I do not find that the applicant's constitutional rights under Article 5 (1) (d), (k) or 5 (2) (h) have been infringed.

Those rights under the Constitution are as follows: -

"FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

(1)	The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health -

(a)	life;

(b)	liberty;

(c)	security of the person;

(d)	protection of the law;

(e)	freedom from inhuman treatment and forced labour;

(f)	freedom of conscience and worship;

(g)	freedom of expression;

(h)	freedom of assembly and association;

(i)	freedom of movement;

(j)	protection for the privacy of the home and other property and from unjust deprivation of property;

(k)	equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare, protection or advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.

2.	Protection of the law shall include the following-

(a)	everyone charged with an offence shall have a fair hearing within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;

(b)	everyone is presumed innocent until a court establishes his guilt according to law;

(c)	everyone charged shall be informed promptly in a language he understands of the offence with which he is being charged;

(d)	if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceedings;

(e)	a person shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in his presence;

(f)	no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;

(g)	no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;

(h)	no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial."

However, while I agree that the applicant cannot be tried for the same offence or for any other offence which he could have be convicted of at his trial the offence to be considered must be included under section 27 of the Leadership Code Act, which provides as follows: -

(1)	A leader who is convicted by a court of an offence under the Penal Code Act [CAP. 175] 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.

The applicant was convicted of forgery. That offence is referred to in S.27 (2) (t).

I am of the view that a Section 27 prosecution is not " the same offence" nor is it "any other offence of which he could have been convicted at his trial" in terms of Article 5 (2) (h).

In Pearce v R [1998] 194 CLR 610 the Court said this: -

"The expression "double jeopardy" is not always used with a single meaning. Sometimes it is used to encompass what is said to be a wider principle that "no one should be punished again for the same matter". Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment."

The elements to be proved and the evidence required for each prosecution in these circumstances are completely different.

The elements for a forgery prosecution are set out in section 139 (1) of the Penal Code as being: -

(a)	the making of a false document;

(b)	knowledge of the falsely of the document; and

(c)	an intention that the document be used or acted upon as genuine or that some person be induced by the belief that it is genuine to do or refrain from doing any thing.

The elements for a section 27 prosecution under the Leadership Code Act are: -

(a)	that the defendant is a leader; and

(b)	that the defendant has been convicted by a Court of an offence under the Penal Code Act as listed in section 27 (2) 

But, in addition a section 27 conviction could not have been entered at the time of the conviction for forgery because for such a conviction it was a condition precedent to a prosecution under the Leadership Code Act that the applicant had been convicted by a Court of an offence under the Penal Code Act. As a matter of pure logic in these circumstances the Penal Code Act prosecution must predate and precede the Leadership Code Act prosecution. There is no double jeopardy. I am also of the view that the consideration in this application must be limited to consideration of a Section 27 prosecution and not to any other possible prosecution under other provisions of the Leadership Code Act because that is the course which has been contemplated.

I am also satisfied that there has not been nor is there likely to be any infringement of the applicant's right to equal treatment under the law or administrative action by virtue of his position as a member of Parliament, or his former position as Prime Minister.

Article 66 of the Constitution relates to a Leadership Code and provides as follows: -

"CONDUCT OF LEADERS

(1)	Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a)	place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b)	demean his office or position;

(c)	allow his integrity to be called into question; or

(d)	endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2)	In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or his carried out the duty imposed by subarticle (1)."

In the light of this there is no evidence of any unequal treatment, and in addition the application does not refer in any detail to any unequal treatment nor does the sworn statement of the applicant. Under Articles 66 and 67 of the Constitution the conduct of Leaders is defined and the investigation of a potential Section 27 prosecution would not infringe the applicant's right to equal treatment under the law.

As to the independence of Public Prosecutor, I am of the view that the working paper does not infringe such independence as enshrined in Article 55 of the Constitution, which provides as follows: -

"PUBLIC PROSECUTOR

The function of prosecution shall vest in the Public Prosecutor, who shall be appointed by the President of the Republic on the advice of the Judicial Service Commission. He shall not be subject to the direction or control of any other person or body in the exercise of his functions."

The recommendation as formulated in the report is merely that, a recommendation, and that is not, as the claimant would have it, a directive or a requirement for the Public Prosecutor to issue charges under the Leadership Code Act were the report published in those terms. The independence and integrity of the Public Prosecutor is preserved, and I cannot find that there is any direction or control contained in the working papers of the Ombudsman to curtail the exercise of the Public Prosecutor's functions or discretion. A copy of the working paper was referred to the Public Prosecutor on 29 January 2004 and he quite rightly declined to comment. In addition the Public Prosecutor cannot issue a prosecution under the Leadership Code Act without a recommendation from the Ombudsman.

There is certainly no implied threat or suggestion that the Public Prosecutor would face further inquiry or public rebuke should he not exercise his discretion in favour of a prosecution under section 27.

Equally, I cannot find in either report that there is anything which would indicate that the Ombudsman is attempting to embarrass and ridicule Mr. Sope. The Ombudsman is simply carrying out his statutory functions. I do not find that there is anything sinister in the timing of the issue of the working papers that shows something of a vendetta against the applicant.

I agree also with the submission that there cannot yet be any breach of Article 55 and there is no indication that there is any intention expressed as to how the Public Prosecutor's function ought to be exercised. Of course the applicant is entitled to bring these proceedings now by virtue of Article 6 (1) of the Constitution which provides as follows: -

"ENFORCEMENT OF FUNDAMENTAL RIGHTS

(1) 	Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right."

These circumstances could mean that the rights of the applicant "are likely to be infringed" in his view so he may apply to the Supreme Court at this stage and I do not accept the Ombudsman's submission that the application is premature.

I find that the Ombudsman is not conducting a fresh enquiry on a matter previously undertaken in breach of Section 19 (1) of the Ombudsman Act. The investigation is clearly an ongoing one. That is made perfectly clear because the same file number, 1185, has been used and even though the enclosures in the second working paper had just become available when the first working paper was sent to the applicant, the Ombudsman has not closed his file and has never published a report or recommendation under Sections 33 and 34 of the Ombudsman Act which provides as follows: -

"PUBLICISING PROCEEDINGS, REPORTS ETC

33.	For the purpose of giving effect to any findings or recommendations of the Ombudsman following an enquiry into the conduct of a government agency or a leader, the Ombudsman may:

(a)	publicise proceedings, reports and recommendations; and

(b)	make reports and recommendations to the Parliament, the Prime Minister and other relevant persons and bodies as provided for by this Act, and

(c)	give advice

34.	(1)	Subject to subsection (2), the Ombudsman must:

(a)	make public by way of a written report the results of any enquiries carried out by him or her, including any findings, recommendations and opinions; and

(b)	furnish the complainant (if any) with a copy of his or her report.

(2)	The Ombudsman may decide to keep a report, or part of it, confidential to the Prime Minister or the person in charge of the government agency the subject of the enquiry, on the grounds of public security or public interest.

(3)	If the Ombudsman decides to keep a report, or part of it, confidential he or she must inform the complainant (if any) in writing of his or her findings without in any way prejudicing the grounds on which the Ombudsman decided to keep the report, or the part, confidential"

The difference between the recommendations in the Working Papers was that on 29 January 2004 an additional recommendation was made namely that: -

"The Public Prosecutor commence a prosecution against Mr. Sope under Sections (sic) 27 of the Leadership Code Act for breach of the Leadership Code Act constituted by his conviction for forgery."

I am satisfied that the second Working Paper was effectively a re-issue of the first when further information, namely the High Court and Court of Appeal decisions, was included and had been considered by the Ombudsman. There was simply a reformulation of the recommendation in the light of subsequent events and a further draft of the same working paper.

CONCLUSION

I find that none of the grounds raised in the application have succeeded, and the Constitutional application is accordingly dismissed.

I award costs on the standard basis, in favour of the Attorney General, the Ombudsman, and the Public Prosecutor against the applicant as agreed or as determined by the Court.

Dated AT PORT VILA, this 26th day of July 2004

BY THE COURT

P.I. TRESTON
Judge