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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Constitutional Case No. 6 & 7 of 2015
BETWEEN:
JOE NATUMAN
HAM LINI
RALPH REGENVANU
Applicants
AND:
PRESIDENT OF THE REPUBLIC OF VANUATU
First Respondent
AND:
THE REPUBLIC OF VANUATU
Second Respondent
AND:
PUBLIC PROSECUTOR
Interested Party
AND BETWEEN:
SERGE VOHOR, ANTHONY WRIGHT and
JOHNAS JAMES
First Applicants (Petitioners)
AND:
MARCELLINO PIPITE,TONY NARI, JOHN AMOS VACHER, SEBASTIEN HARRY,
THOMAS LAKEN, PAUL TELUKLUK, SILAS YATAN, JEAN YVES CHABOT AND ARNOLD PRASAD
Second Applicants (Petitioners)
AND:
PRESIDENT OF THE REPUBLIC OF VANUATU
First Respondent
AND:
REPUBLIC OF VANUATU
Second Respondent
Coram: Mr. Justice Oliver A. Saksak
Counsel: Edward Nalyal for Claimants/ Applicants in Constitutional Case No. 6 of 2015
Fredrick Gilu for First and Second Respondents
John Timakata for Interested Party
Colin Leo for the Applicants in Constitutional Case No.7 of 2015
Felix Laumae and John Less Napuati and Daniel Yawha for Second Applicants
Date of Hearing : 20th October 2015
Date of Judgment: 21st October 2015
JUDGMENT
Background
The applicants filed their application on an urgent basis on 14th October 2015 seeking:-
Mr Nalyal filed an undertaking as to damages and two sworn statements in support of the application by Joe Natuman and Ralph Regenvanu on 14th October 2015.
Mr Leo filed a sworn statement by Serge Vohor in support of the application on 19th October. The State filed a response on the same date and a sworn statement of Bethuel Solomon on 20th October in support of their response denying in essence that the Revocation Order issued on 16th October was unconstitutional.
Facts
Evidence
"Date: 10th October 2015
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 MOANA CARCASES KALOSIL, SILAS ROUARD YATAN, ARNOLD PRASAD, JEAN YVES CHABOD, PAUL BARTHELEMY TELUKLUK, STEVEN KALSAKAU, TONY NARI, JOHN AMOS, SEBASTIEN HARRY, THOMAS LAKEN, SERGE VOHOR, ANTHONY WRIGHT, JONAS JAMES AND MARCELLINO PIPITE were found guilty and convicted of certain offences by the Supreme Court of the Republic of Vanuatu on the 09th of October 2015.
AND WHEREAS I am of the opinion that the guilt and convictions of the above persons being the Members of Parliament of the Republic of Vanuatu and some of them being the Ministers of State and to maintain stability in the Government of the Republic of Vanuatu.
In the exercise of the power conferred on me by Article 38 of the Constitution I, PIPITE MARCELLINO the Acting President of the Republic of Vanuatu, hereby PARDON the following persons:
MADE at the State Office this 10th day of October, 2015
(Signed)
______________________________
PIPITE MARCELLINO
Acting President of the Republic of Vanuatu"
REPUBLIC OF VANUATU
CONSTITUTION OF THE REPUBLIC OF VANUATU
"Pardon (Revocation)
Order No. 14 of 2015
I, His Excellency WOMTELLO REV. BALDWIN JACOBSON LONSDALE, President of the Republic of Vanuatu make the following Order.
The Instrument of Pardon that was made on 10 October 201grant a Pardon odon on the following persons:
(a) Moana Carcasses Kalosil;
(b) Silas Rouard Yatan;
(c) Arnold Prasad;
(d) Jean Yves Chabod;
(e) Paul Barthelemy Telukluk;
(f) Steven Kalsakau;
(g) Tony Nari;
(h) John Amos;
(i) Sebastien Harry;
(j) Thomas Laken;
(k) Serge Vohor;
(l) Anthony Wright;
(m) Jonas James;
(n) Pipite Marcellino,
is revoked.
Commencement
This Order commences on the day on which it is made.
Made at Port Vila this (15) day of (October ), 2015.
(Signed)
______________________________________________________________________
His Excellency WOMTELLO REV. BALDWIN JACOBSON LONSDALE
President of the Republic of Vanuatu"
The Issues
The Relevant Constitutional Provisions
14.1 Article 5 fundamental rights and freedom of the individual
1. "The Republic of Vanuatu recognises, 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 –
(d) protection of the law;
(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."
14.2 Article 37. Speaker to act as President
- (1) "Whenever there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament shall perform the functions of President under this Constitution and any other law.
(2) When Parliament is dissolved and there is a vacancy in the office of the President of the Republic or the President is overseas or incapacitated, the Speaker of Parliament at the time of the dissolution shall perform the functions of the President of the Republic under this Constitution and any other law until a new Speaker is elected."
14.3 Article 38. Presidential powers of pardon, commutation or reduction of sentences.
"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."
14.4 Article 66 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 has carried out the duty imposed by sub article (1)."
14.5 Article 67. Definition of a leader
"For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, Members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law."
14.6 Article 68. Parliament to give effect to this chapter
"Parliament shall by law give effect to the principles of this Chapter."
Section 3 Vacation of seat on sentence
(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 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 30 days thereafter:
Provided the Speaker, or in his absence, the Deputy Speaker, may at the request of a 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 approval of Parliament signified by resolution.
(2) If at any time before the member vacates his seat his conviction is set aside or a punishment other that 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."
Case Authorities
(b) Public Prosecutor v. Willie [2004] VUCA. Considered and applied.
(c) Sope v. Republic Civil Appeal Case No.15 of 2004, Considered.
(d) Attorney General .v. President of the Republic of Vanuatu Civil Case No. 124 of 1994. Considered and adopted.
(e) Silas v. PSC Civil Appeal Case No. 8 of 2014.Considered.
(f) Sope v. Speaker of Parliament Civil Appeal Case No. 4 of 2003. Considered and distinguished.
(g) AG of Trinidad and Tabago v. Philip [1995] 1AC. 396. Considered.
(h) Defreitas v. Benny [1979] AC 239. Considered and distinguished.
(i) In Council of Civil Service Unions .v. the Minister for the Civil Service [1976] AC 37. Considered and distinguished.
(j) Primo Afeau v. Judicial & legal Service Commission and the Attorney General. Considered and adopted.
(k) The President of the Republic of South Africa and the Minister of Correctional Services v. John Philip Peter Hugo Case CCT 11/96. Considered and adopted.
17. Discussions And Considerations
17.1 I deal first with the issue in (e): Whether or not the constitutional rights of the applicants in Constitutional Case No.6 of 2015 have been infringed and if so, what are those rights?
17.2 Mr Leo argued that the three applicants had not demonstrated any of their rights that had been infringed by the issuing of the pardon by the Acting President on 10th October 2015.
17.3 In their application the applicants assert that ( amongst others) they are-
- Members of Parliament
- Joe Natuman is the complainant in Criminal Case No.73 of 2015.
- On 9th October 2015 the Speaker and 13 others (the convicted persons) were convicted in this Court and are awaiting sentence on 22nd October 2015.
- The 13 convicted persons are all Members of Parliament
- Under section 3(1) of the Members of Parliament ( Vacation of Seats) Act [ CAP 174] upon conviction and upon a sentence of not less than 2 years imprisonment, they shall forthwith cease to perform their functions as Members of Parliament and their seats shall become vacant at the expiration of 30 days thereafter.
- The 3 applicants as the complainant and Members of Parliament had the expectation that-
- Criminal Case No. 73 of 2015 would take its full course to 22nd October, 2015 when the convicted persons would be sentenced.
- That if they were sentenced to sentences of not less than 2 years imprisonment, that they would cease to be Members of Parliament.
- That the convicted persons would be treated equally in accord with Article 5(1) (k) of the Constitution.
- That the constitutional power of pardon under Article 38 would be exercised lawfully.
- That the Speaker of Parliament would act at all times in accordance with Article 66 of the Constitution.
17.4 The assertions in (a), (b), (c), (d) and (e) are not disputed and are unchallenged.
17.5 Taking the circumstances of this case in its full context I have no doubt that the three applicants as Members of Parliament, as complainant and as private citizens of this nation have demonstrated that their rights guaranteed under Article 5(1) (d): protection of the law and Article 5 (1) (K): equal treatment under the law, have been infringed and are being infringed.
17.6 It is common ground that Willie Jimmy Tapangararua was included in the charge. He pleaded guilty as charged and is awaiting sentence also on 22nd October 2015. But he was not included in the pardon granted by the Acting President on 10th October 2015.
17.7 Clearly there was unequal treatment under the law and the applicants are entitled to expect to see that is done. There is a clear principle that justice must not only be done but it must be seen to be done. That is not so here. No one is and can be above the law. Only God is.
17.8. This issue is therefore answered in the affirmative.
18.1 I return now to the first issue in (a): Whether or not he Speaker of Parliament in his capacity as Acting President had the power to pardon himself and 13 other convicted persons by the Instrument of Pardon dated 10th October 2015?
18.2 In brief Mr Leo, Mr Yawha and Mr Laumae argued that the Acting President had the power to pardon firstly by his letter of appointment, and secondly under Article 38 of the Constitution.
18.3 The letter relied on is not in evidence but is disclosed in the submission filed by Mr Leo. It is dated 5th October 2015.
It states:-
"5th October 2015
Hon. Marcellino Pipite
Speaker of Parliament
Speaker of Parliament
National Parliament
Republic of Vanuatu.
Dear Hon. Pipite
RE: APPOINTMENT AS ACTING PRESIDENT O (SIC) THE REPUBLIC OF VANUATU.
The above- captioned matter herein refers.
This letter serves to inform you that, I will be away in Rarotonga for a graduation ceremony from 7 to 11 October 2015. In my absence, in accordance to Article 37(1), of the Constitution of the Republic of Vanuatu, I am conveying upon you as Speaker of Parliament the responsibility to perform the functions of the President under the Constitution and any other law.
As usual, my staff at the State Office under the supervision of our Principal Private and the CEO Mr Bethuel will assist and accord to you the support you may require accordingly. Our Departure flight has been scheduled for 7:00a.m on the above date and our arrival back in Port Vila will be through Air Calin at 17:10 on 11th October 2015.
May I thank you in advance for accepting this additional and yet honourable duty.
Yours Sincerely,
HE Womtello Rev. Baldwin Lonsdale
President
Republic of Vanuatu"
18.4 Mr Nalyal argues that the terms "powers" and "functions" ought to be distinguished. Mr Leo, Mr Yawha and Mr Laumae argue that the terms are used interchangeably and cannot be separated. Both arguments are in my view correct and acceptable.
18.5 Article 37 (1) of the Constitution uses the word "functions" and the letter of 5th October 2015 also uses the word "functions". The Article and the letter do not use the word "power". And "power" is not the same as "functions".
18.6 Article 38 clearly provides for the President's powers of pardon, commutation and reduction of sentences. At the end of the provision the word "function" is used. So it is correct to argue that the terms are intertwined and cannot be separated but the two terms have separate meanings. Power refers and confers authority to perform a specific duty or obligation, hence a function.
18.7 The power to pardon a conviction is available under Article 38 of the Constitution Act but it is a power for and by the President alone. To delegate such power and function, it must be clearly expressed or stated and conveyed by any instrument of appointment or delegation. The letter by the President dated 5th October 2015 did not convey or expressly delegate his power to pardon to the Speaker as Acting President.
18.8 Article 38 has only two sentences. The second sentence states: "Parliament may provide for a committee to advise the Parliament in the exercise of this "function".
18.9 Why would the framers of the Constitution see fit to include such a sentence if it does not serve any useful purpose? In my opinion it infers that the power of pardon ought to be exercised with caution and prudently. It infers there ought to be some advice and/or consultation before such an exercise of discretion. It infers that the exercise of the power of pardon ought to be used in a principled, transparent and consistent way.
18.10 In the unchallenged evidence of Joe Natuman there is disclosed a Press Release issued by the President, explaining the reasons why he took the decision to revoke the pardons granted by the Acting President on 10th October, 2015. One of those reasons was that he as President was not consulted by the Acting President before the exercise of his powers to pardon.
18.11 Mr Laumae argues that there is no requirement under Articles 37 or 38 for advice or consultation before the exercise of the power of pardon.
18.12 This argument is untenable and is rejected.
18.13 In Public Prosecutor .v. Willie [ 2004] VUCA 4 the Court of Appeal said this:-
"Within any country which is committed to the rule of law, notwithstanding the general terms of the Article, there is not a power to be exercised except in a way which is consistent with the entire Constitutional framework. It is not a power which is beyond the purview of the Court to review and assess its exercise for legality".
The circumstances which will justify an exercise are myriad. It must always be used in a principled, transparent and consistent way...
In the absence of such an approach there is a danger that this important residual power will, instead of ensuring that no injustice can arise, become a problem itself. The historical antecedents of such a prerogative of mercy, as well as comparative provisions in other countries, clearly demonstrate that it is the ultimate backstop. It cannot be a mechanism general application in the administration of criminal justice. Unless it is properly confined the potential for it to distort the consistent and universal application of the rule of law is substantial" (emphasis added).
18.14 It was argued by Counsel representing the Speaker and the other convicted persons that the President had taken irrelevant matters into consideration when he revoked the pardons granted on 10th October 2015 on 16th October 2015. This argument is rejected as untenable. The Press Conference issued by the President discloses the reasons for the revocation. This evidence is found in the sworn statement of Bethuel Solomon. The President based his decisions on Chapter 10 of the Constitution Articles 66, 67 and 68. And having done so, it is my opinion that the President had applied the reasonableness test enunciated in the Wednesbury Corporation Case.
18.15 Counsel for the Second applicants in Constitutional Case No.7 of 2015 Mr Leo argued that the duties of a leader enshrined under Article 66 of the Constitution are non-justiciable and as such they are not capable of being determined by a Court of law. Counsel attempted to extend the non-justiciability of the fundamental duties in Article 8to Article 66. With respect to Counsel, I find that argument to be seriously flawed and a serious error, and accordingly I reject it. Article 66 places emphasis on "conducts" of leaders and the duty of leaders to ensure that they do not conduct themselves in ways that offend against those requirements or standards of conduct or ethics.
18.16 I come ultimately to the conclusion that the Speaker as President had exercised the powers of pardon of the President to pardon himself and the other 13 convicted persons on 10th October 2015 wrongly and unlawfully. His action was ultra vires the power of the President under Article 38 of the Constitutional, and I so declare it unconstitutional invalid and of no force or effect.
19. The next issue in (b) is whether the pardon issued on 10th October 2015 valid? For the reasons given above, this issue is answered in the negative.
20.1. The next issue in (c) is whether the President has the power to revoke the pardon of 10th October 2015? The answer obviously is YES, despite it was strenuously argued by Mr Leo, Mr Yawha and Mr Laumae that Article 38 does not provide express power of evocation.
20.2. It is common knowledge that Article 38 does not expressly provide a power of revocation. But the absence thereof does not mean the President seeing the legal and Constitutional wrong and error done by a person he appointed as Acting President but who performed his power and functions of pardon without his knowledge, advice and consultation, in other words, unlawfully, would it have been reasonable and prudent for the President in the circumstances to sit back and not do the right thing he ought and should do to undo the legal and constitutional wrong done? That would be absurd and unacceptable in my view.
20.3 The parallel is the principle governing the appointments and revocation or terminations of appointments. Section 21 of the Interpretation Act [CAP 132] provides for the power to appoint as including the power to remove. Section 20 of the Act provides for implied power "Where an Act of Parliament confers a power on any person to do or enforce the doing of any act or thing all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing".
By analogy and in similar vein it is my view that Article 38 ought and must be accorded the same interpretation as having that implied power.
21. The next issued in (d) is whether the Revocation Order dated 16th October 2015 valid?
For the reasons stated, this issue is answered in the affirmative.
This issue and the next need not be answered, but for the Applicants having filed a separate case, it is necessary to do so for future purposes.
22.1. The next issue in (f) is whether the Court has power to review the grant of pardon issued on 10th October 2015?
22.2. First the case of Public Prosecutor .v. Willie [2004] VUCA4 provides a clear answer to this issue so it is answered in the affirmative. The African Case of the President of the Republic of South Africa .v. John Philip Peter Hugo lends support to this positive view.
23.1. There was some argument about the Speaker of Parliament convicted and granting pardons on himself and his other colleagues being in a conflict of interest. Further that he had demeaned his office or position and allowed his integrity to be called into question, under the provision of Article 66 of the Constitution.
23.2. Articles 66 and 67 were the very basis of the President's revocation of the pardon granted by the Speaker as Acting President on 10th October 2015. Those are sound basis in law and the Constitution and I find no reason to dissuade me from endorsing and upholding the President's decision.
23.3. Clearly Mr Pipite as Speaker of Parliament and as Member of Parliament having been convicted a day earlier on 9th October, 2015 and granting a pardon on himself and his 13 other colleagues on the very next day which was a Saturday, and caused the pardon instrument to be published on 11th October 2015 which was a Sunday, not only demonstrate haste, desperation and bad faith contrary to what his Counsel argues, but an obvious conflict of interest, demeanor of his office and position, and question about his integrity . Clearly in my view Article 66 was infringed.
23.4. Further Mr Leo, Mr Yawha and Mr Laumae argue that pardon had been lawfully granted and that there was no power to review it by this Court. They place reliance on De Freitas .v. Benny [1975] UKPC 12; [1976] AC 239 at p.247 where the Court said- "Mercy is not the subject of legal rights. It begins where legal rights end".
23.5. With respect to Counsel this case does not assist them. They have no evidence in rebuttal that Criminal Case No. 73 of 2015 has come to its end. The reality is that this case is still alive. The 14 convicted persons have been convicted and not yet sentenced. Their sentence is due on 22nd October 2015. To submit therefore that their legal rights have ended is misconceived. After their sentences, they may yet choose to appeal. Only after any such appeal could it be said that their rights have ended. Any pardon granted thereafter would be perfectly proper as it happened in Sope.v, Republic [2003] VUCA 5. But yet again that case is clear authority that a pardon does not acquit a convicted person of his convictions.
24. Finally the haste in which the pardon instrument was drawn up, signed sealed and published in the Gazette over the weekend give rise to a possible and potential inference that Mr Pipite and the other convicted persons had so acted or attempted to act in such a way as to stop the Criminal Case No. 73 of 2015 from proceeding towards its end when sentences would be handed down on 22nd October 2015.
Conclusions
For all the foregoing reasons:-
DATED at Port Vila this 21st day of October 2015
BY THE COURT
OLIVER.A.SAKSAK
Judge
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