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Government of the Republic of Vanuatu v Maseng Nalo [2004] VUSC 4; Civil Case 090 of 2004 (7 May 2004)

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


CIVIL CASE No. 90 of 2004


BETWEEN:


THE GOVERNMENT OF VANUATU
Claimant


AND:


ALFRED MASENG NALO
First Respondent


AND:


THE ELECTORAL COMMISSION
Second Respondent


Coram: Chief Justice Lunabek


Counsel: Messrs Dudley Aru & Fredrick Loughman for the claimant
Mr. Bill Bani for the first respondent
Mr. Michael Edwards for the second respondent


JUDGMENT


1. Introduction


Before me is a claim for Judicial Review. The claimant is the Government of Vanuatu. The first respondent is the elected President of the Republic of Vanuatu, His Excellency Alfred Maseng Nalo. The second respondent is the Electoral Commission who is submitted itself to the jurisdiction of the Court and bound by any Order of the Court and as such is excused from attendance.


2. Relief sought


The claimant claims for the following Orders:


  1. A declaration that the first defendant was not eligible to stand for election to the position of President of the Republic of Vanuatu;
  2. An Order quashing the first defendant’s appointment as President of the Republic of Vanuatu;
  3. A declaration that the Office of the President is vacant.

3. The grounds of the claim


The grounds of the claims are set out with the claim. A sworn statement was filed by the Public Prosecutor, Nicholas Mirou, on 27th April 2004 in support of the claim.


The claimant’s case is that the first respondent was ineligible to stand for election of the position of President of the Republic because he did not meet the requirements of Article 35 of the Constitution and Section 24(1)(b) of the Representation of the People Act [CAP. 146].


4. The response


The first respondent does not admit that he did not meet the requirements of Article 35 of the Constitution as well as Section 24(1)(b) of the Representation of the People Act [CAP. 146].


He, therefore, invites the Court to make a ruling that:


  1. For purposes of Section 24(1)(b) of [CAP. 146], Mr. Alfred Maseng Nalo was eligible to stand for election to the position of President of the Republic of Vanuatu.
  2. For purposes of Section 24(1)(b) [CAP. 146] a person can be elected to the position of President of the Republic of Vanuatu despite having a suspended sentence but that suspended sentence must be of a term or terms of imprisonment which had already ended.
  3. That the claimant’s claim be dismissed in its entirety with costs against the claimant.

The first respondent files a sworn statement on 3 May 2004 in support of his defence.


5. The issue


The critical issue for the determination by the Court is whether or not the first respondent was eligible for election as President of the Republic of Vanuatu held in April 2004.


6. The facts


The factual circumstances leading up to this challenge are not in dispute. They are briefly summarized as follows:


On 3 April 2003 the first respondent was convicted of two Counts of aiding and abetting misappropriation under Sections 30 and 125(b) of the Penal Code [CAP. 135] and one count of receiving property dishonestly under Section 131 of the Penal Code Act [CAP. 135]. He was sentenced to a total of 4 months imprisonment. However, the sentence of imprisonment was suspended for a period of 2 years from 3 April 2003 pursuant to the suspension of sentences Act [CAP. 67].


On 24 March 2004, the term of Office of His Excellency President Bani was completed and a vacancy in the Office of the President arose.


On 26 March 2004, a Writ for Election of the President was then issued.


On 30 March 2004, the first respondent was nominated to stand for election.


On 31 March 2004, a nomination paper in his favour was presented to the second respondent, the Electoral Commission. The second respondent accepted the first respondent’s nomination and presented him to the Electoral College as a valid candidate.


On 12 April 2004, the first respondent attained the necessary number of votes from the Electoral College to win the election and on that date was sworn in as the President of the Republic.


7. The relevant legal requirements


Article 35 of the Constitution states:


“Any indigenous Vanuatu citizens qualified to be elected to Parliament shall be eligible for election as President of the Republic.”


For a person to be eligible to stand for election as a Member of Parliament, Section 24(1) of the Representation of the People Act [CAP. 146] provides as follows:


“24. (1) Subject to Section 23 a person shall be eligible to stand as a candidate for election to Parliament if he-


(a) is not disqualified from voting;

(b) has not received a sentence including a suspended sentence of a term or terms of imprisonment which has not ended; (Emphasis added)

(c) is not an undischarged bankrupt;

(d) has attained 25 years of age; and

(e) is a citizen.”


Section 24(1)(b) is the relevant paragraph for consideration in the present case.


The suspension of sentences are provided under the Suspension of Sentences Act [CAP. 67]. Section 1 is the relevant section and it provides as follows:


“1. The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions-


(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him., on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years;


(b) if, at the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of any further offence against any Act, regulation, rule or order, the sentence shall be deemed to be annulled;


(c) if before the end of such period, the person the execution of whose sentence has been suspended in accordance with this section is further convicted of any offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;


(d) the court shall, when ordering the suspension of the execution of the sentence, explain clearly to the person sentenced the nature of the order and shall ascertain that the has understood its meaning.”


8. The arguments and submissions


It is submitted on behalf of the claimant that by being subject to a suspended sentence at the time of the election, the first respondent did not meet the requirements of Section 24(1)(b) of the Representation of People Act [CA[.146] and was not qualified to stand for election to Parliament and hence the Presidency.


It is, therefore, submitted for the claimant that because the first respondent’s sentences were suspended for two years, he is disqualified under Section 24(1)(b) of the Representation of the People Act [CAP. 146] as he has received suspended sentences of imprisonment totalling four months that have not ended. The sentences will only end for the purposes of Section 24(1)(b) when either:


  1. The two years have expired for which the sentence has been suspended, i.e. on 3 April 2005, under Section 1(b) of the Suspension of Sentences Act, or
  2. After he has served the term of imprisonment if required to do so under Section 1(c) of the Suspension of Sentences Act.

In response, it is submitted on behalf of the first respondent that the effect of a suspension is that the execution of a term or terms of imprisonment remains the same but only its execution is stayed. It is also said for the first respondent that the Suspension of Sentences Act does not use the words “sentence of a term or terms of imprisonment which has not ended”. Instead, it uses “suspension of the execution of the sentence”.


It is, therefore, submitted that Section 24(1)(b) of the Representation of the People Act [CAP. 146] only applies to a candidate “whose term or terms of imprisonment has not ended” irrespective of whether it was a sentence or suspended sentence.


It is further said for the first respondent that his 4 months’ terms of imprisonment ended on 3 August 2003 as a result of which the first respondent was eligible to be nominated for election to the post of President.


It is finally submitted for the first respondent that for the purposes of Section 24(1)(b), when the first respondent applied for the position of President on 31 March 2004, he was not under a suspended sentence of terms of imprisonment which has not ended because his 4 months’ terms of imprisonment had already ended on 3 August, 2003.


9. The application of the law


Applying the law to the fact of this case, the submissions made on behalf of the first respondent cannot stand and must be rejected as they represent a misapprehension of the purpose and effect of the suspension of sentences scheme under the Suspension of Sentences Act [CAP. 67]. Further the provisions of Article 35 of the Constitution and Section 24(1)(b) of the Representation of the People Act are clear.


Section 1 of the Suspension of the Sentences Act [CAP. 67] is also clear. There is no ambiguity nor uncertainty warranting for construction or interpretation.


Section 1 of the Suspension of Sentences Act empowers the Court to suspend the execution of any sentence imposed for an offence against any Act, regulation and set out the conditions in paragraphs (a), (b), (c) & (d) and a period of suspension of the sentence to be fixed by the Court.


Section 1 (a) of the Act is the relevant paragraph to comprehend the rational of the suspension of the sentences mechanism for the purpose of this case.


Section 1 states:


“1. The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions-


(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him., on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years;”


Under Section 1 of the Suspension of the Sentences Act [CAP. 67], the first respondent was sentenced to 4 months imprisonment. That sentence was then suspended for 2 years from 3 April 2003, is still alive and will come to an end on 3 April 2005. It is the execution of the sentence of 4 months imprisonment that has been suspended for the period of 2 years commencing from 3 April 2003. The sentence of 4 months imprisonment is yet to be executed if required to do so under Section 1(c) of the Act [CAP. 67]. I accordingly accept the submissions made on behalf of the claimant.


By perusing and considering the language of Article 35 of the Constitution, and Section 24(1)(b) of the Representation of the People Act [CAP. 146], the first respondent is not eligible to stand for the election to the position of President of the Republic of Vanuatu on 31 March 2004 as he has received a sentence of 4 months imprisonment which was suspended for a period of 2 years from 3 April 2003. That suspended sentence “has not yet ended”.


The first respondent was not eligible for election of President of Vanuatu pursuant to Section 24(1)(b) of the Representation of People Act [CAP. 146].


On the basis of the above considerations, the judgment must be issued in favour of the claimant. Orders and Directions sought by the claimant must be granted accordingly. Orders and Declaration sought by the first respondent are refused. They have no basis in law.


10. ORDERS


The Court makes the following ORDERS AND DECLARATIONS:


  1. The first respondent was not eligible to stand for election to the position of President of the Republic of Vanuatu.
  2. The first respondent’s appointment as President of the Republic of Vanuatu is quashed.
  3. The Office of the President is now declared vacant.
  4. There is no Order as to costs.

Dated at Port-Vila this 7th day of May 2004


BY THE COURT


Vincent LUNABEK
Chief Justice

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