Ombudsman of Vanuatu
Digest of Public Reports
Written by Edward R. Hill
UNDP Governance and Accountability Project
© Ombudsman of Vanuatu
Published here by University of the South Pacific, School of Law Web Site - www.vanuatu.usp.ac.fj
Constitution of Vanuatu – Ombudsman
Constitution of Vanuatu – Leadership Code
Ombudsman Act of 1995
Ombudsman Act of 1998
Leadership Code Act
Beginning in July 1996, approximately a year after the passing of the first Ombudsman Act in Vanuatu, the Ombudsman has published public reports arising from inquiries. By the end of 2000, nearly 80 reports have been published. Most of these reports are available in 3 languages, English, French and Bislama. These reports are published at the discretion of the Ombudsman and represent only a fraction of the complaints that are dealt with by the Ombudsman’s Office. The length and complexity of the reports varies considerably. A number of public reports are over 30 pages in length. With appendices, some are double that length. Each reports ends with one or more recommendations. This digest covers the entire collection of Ombudsman’s reports arising from specific complaints and inquiries. The Ombudsman also publishes annual reports and reports on the status of official languages in Vanuatu. These are not included in this digest.
This digest condenses what has already been reported. It attempts to include the essence of the original published report, providing enough detail to highlight the main issues and the means by which the Ombudsman arrives at the conclusions and recommendations. The specific recommendations are considered to be important and accordingly, they are all included in the digest of each case, usually in a condensed form. In order that the recommendations make sense to a reader, it has been necessary to include in the digested report more details than are commonly included in a normal case “digest”. However, like other digests, this digest does not attempt to add to or draw any inferences from what is contained in the original published reports.
As the digested version of each case is typically longer than cases in other types of digests, some readers, depending on their research interest, may find it unnecessary to refer to the original report. Should an original report be required, orders may be placed with the Office of the Ombudsman, PMB 081 Port Vila, Vanuatu, phone (678) 27200 or fax, 27140.
This digest contains the names of many people referred to in the Public Reports. Not only is this necessary in order to make sense of many of the recommendations but it also enhances the use of search features on the digital version of this digest. Anonymized names (eg. Mrs. X) refer to people who were anonymous in the original reports.
This digest has been written through the sponsorship of the United Nations Development Program, Governance and Accountability Project, Vanuatu.
The remainder of the introduction outlines some of the more common Constitutional and statutory provisions that are frequently referred to in the Ombudsman’s reports.
Constitution of Vanuatu – Ombudsman
Chapter 9 Part II (articles 61 to 65) of the Constitution of Vanuatu provides for the Ombudsman.
61. (1) The Ombudsman shall be appointed, for 5 years, by the President of the Republic after consultation with the Prime Minister, the Speaker of Parliament, the leaders of the political parties represented in Parliament, the chairman of the National Council of Chiefs, the chairmen of the Local Government Councils, and the chairmen of the Public Service Commission and the Judicial Service Commission.
(2) A person shall be disqualified for appointment as Ombudsman if he is a member of Parliament, the National Council of Chiefs or a Local Government Council, if he holds any other public office, or if he exercises a position of responsibility within a political party.
(3) A person shall cease to be Ombudsman if circumstances arise that, if he were not the Ombudsman, would disqualify him for appointment as such.
ENQUIRIES BY OMBUDSMAN
62. (1) The Ombudsman may enquire into the conduct of any person or body to which this Article applies-
(a) upon receiving a complaint from a member of the public (or, if for reasons of incapacity, from his representative or a member of his family) who claims to have been the victim of an injustice as a result of particular conduct;
(b) at the request of a Minister, a member of Parliament, of the National Council of Chiefs or of a Local Government Council; or
(c) of his own initiative.
(2) This Article shall apply to all public servants, public authorities and ministerial departments, with the exception of the President of the Republic, the Judicial Service Commission, the Supreme Court and other judicial bodies.
(3) The Ombudsman may request any Minister, public servant, administrator, authority concerned or any person likely to assist him, to furnish him with information and documents needed for his inquiry.
(4) The Ombudsman shall grant the person or body complained of an opportunity to reply to the complaints made against them.
(5) The enquiries of the Ombudsman shall be conducted in private.
FINDINGS OF THE OMBUDSMAN AND REPORTS
63. (1) Wherever, after due inquiry, the Ombudsman concludes that a complaint is unjustified, he shall so inform the complainant and the Prime Minister and the head of the public department or authority concerned.
(2) Wherever, after due inquiry, the Ombudsman concludes that conduct was contrary to the law, based on error of law or of fact, delayed for unjustified reasons, or unjust or blatantly unreasonable and that, consequently, any decision taken should be annulled or changed or that any practice followed should be revised, he shall forward his findings to the Prime Minister and to the head of the public authority or department directly concerned.
(3) The report of the Ombudsman shall be public unless he decides to keep the report, or parts of it, confidential to the Prime Minister and the person in charge of the relevant public service, on the grounds of public security or public interest. The complainant shall in any case be told of the findings of the Ombudsman.
(4) The Prime Minister or the person in charge of the relevant public service shall decide upon the findings of the Ombudsman within a reasonable time and the decision, with reasons, shall be given to the complainant forthwith. Any period limiting the time in which legal proceedings may be commenced shall not begin to run until the complainant has received the decision.
(5) The Ombudsman shall present a general report to Parliament each year and may make such additional reports as he considers necessary concerning the discharge of his functions and action taken on his findings. He may draw the attention of Parliament to any defects which appear to him to exist in the administration.
RIGHT OF A CITIZEN TO SERVICES IN OWN LANGUAGE
64. (1) A citizen of Vanuatu may obtain, in the official language that he uses, the services which he may rightfully expect from the administration of the Republic of Vanuatu.
(2) Where a citizen considers that there has been a breach of subarticle (1) he may make a complaint to the Ombudsman who shall conduct an inquiry in accordance with Articles 62 and 63.
(3) The Ombudsman shall, each year, make a special report to Parliament concerning the observance of multilingualism and the measures likely to ensure its respect.
OMBUDSMAN NOT SUBJECT TO DIRECTION OR CONTROL
65. The Ombudsman shall not be subject to the direction or control of any other person or body in the exercise of his functions.
Constitution of Vanuatu – Leadership Code
The Constitution also provides, at Part 10, a code of conduct for leaders of the country. Many of the public reports deal with the conduct of leaders and refer frequently to the Leadership Code in the Constitution.
66. (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 subarticle (1)
67. 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.
68. Parliament shall by law give effect to the principles of this Chapter.
Note: The entire Constitution of Vanuatu is available at the University of the South Pacific School of Law website.
Ombudsman Act of 1995
Although the Constitution has been in force since 1980, the Ombudsman Act No 14 of 1995 came into force on August 18, 1995, nearly a year after the appointment of the first Ombudsman, Marie-Noelle Ferrieux Patterson. On June 26, 1998, after three years of operation, and vigorous political opposition, the Ombudsman Act of 1995, was repealed by Parliament. Until its replacement in 1998 with a second Ombudsman Act, No. 27 of 1998, the Ombudsman continued to operate solely on the basis of the Constitutional provisions and her continuing appointment. Shortly after the passage of the new Act, the first Ombudsman, Marie Noelle Ferrieux Patterson’s 5 year appointment expired and she was replaced by Hannington G. Alatoa on August 10, 1999. Mr. Alatoa continues to serve.
The Ombudsman’s jurisdiction was mainly to inquire into complaints (or initiate an inquiry independently) regarding the operation of state bodies, including any body supported mainly out of public funds. An inquiry could also involve suspected breaches of the Leadership Code, defects of the law or administrative practice or alleged discriminatory practices.
The 1995 Act enlarged upon the general provisions of the Constitution. The Ombudsman was empowered to summons witnesses, and compel the production of documents. In addition to publishing reports arising out inquiries, the Ombudsman was bound, in certain circumstances, to forward the report to the relevant authority, which was, in turn obliged to notify the Ombudsman of what steps were proposed to deal with the findings of the Ombudsman. A lack of response could trigger a court application by the Ombudsman to enforce the recommendations contained in the report.
Ombudsman Act of 1998
The Ombudsman Act No. 27 of 1998 is similar in most respects to the first Act. However, it contains several significant differences.
The staff of the Ombudsman’s office is now regulated in the same manner and by the same authorities as the other members of the Public Service. This eliminates the independence that the Ombudsman’s staff had under the 1995 Act.
The new Act prohibits allegations of criminal wrong doing without stating the alleged offence and providing evidence to support the allegation.
A further significant change is the absence in the new Act of any mechanism by which the Ombudsman can enforce recommendations where the Prime Minister (or other relevant person required to do so) does not respond to the Ombudsman’s recommendations with a decision and an indication of what steps are to be taken to deal with the recommendations. Making recommendations is now the most potent action that the Ombudsman can take after an inquiry.
The Ombudsman’s access to “restricted or prohibited information” is restricted by Section 27 of the new Act. This is defined in the Act to include “information that is prohibited or restricted under or by any recognized duty of professional confidentiality or privilege.” Although the scope of this restriction remains to be judicially determined, it appears to narrow the jurisdiction of the Ombudsman to compel disclosure in the course of an investigation.
Another significant way in which the new Ombudsman Act differs from the 1995 Act is its inclusion of provisions enabling the use of mediation in the resolution of disputes arising from complaints to the Ombudsman. There are signs that Vanuatu’s second Ombudsman, Hannington G. Alatoa who took office on August 16, 1999 is gradually incorporating this power into the work of the Ombudsman; see Public report on the loss of properties at Santo Police Station – December 14, 1999.
The full text of the 1998 Ombudsman Act is available on the University of the South Pacific School of Law website.
Leadership Code Act
The Leadership Code Act expands upon the Leadership Code in the Constitution by providing specifics of the obligations of leader, defining terms such as ‘interest” “conflict of interest” and “benefit” and imposing upon leaders duties including duties of disclosure of personal interests and assets. See for example the case: Failure of Some Leaders to File Annual Returns to the Clerk of Parliament - February 29, 2000. The Leadership Code Act also creates offences for breaches of the Leadership Code.
The full text of the Leadership Code Act is available on the University of the South Pacific School of Law website.
The digested reports are set out in chronological order according to the date of publication.
The Provision of Bank Guarantees given in the Sum of US$100,000,000, in breach of the Leadership Code and Section 14(f) of the Ombudsman Act and related matters thereto - July 3, 1996.
Alleged Misappropriation of funds by the President of Shefa Province and maladministration of Shefa Provincial Council - July 23, 1996
Vanuatu Commodities Marketing Board utilisation of the 1.3 billion vatu STABEX Funds Subsidy - August 6, 1996
Public Report on the Nambawan Bottle Shop Case - August 20, 1996
Public Report on the sale of M.V. Yasur - September 23, 1996
Complaint against the Immigration Department concerning a woman whom the Immigration Department attempted to prevent leaving the country - October 10, 1996
On the conduct of Hon Barak Sope and the VNPF Board in a proposed investment in the internet bank “Cybank” venture - October 16, 1996
Further Public Report on the US$100,000,000 Bank Guarantees - October 22, 1996
Public Report on the conduct of Hon Amos Bangabiti, Hon Maxime Carlot Korman, Mr Irene Bongnaim on the granting of the contract to clean the Bauerfield Airport to FX & BM Cleaning Services - October 25, 1996
Public Report on the appointment of the Deputy General Manager of the Vanuatu National Provident Fund - November 15, 1996
Further Public Report on the US$100,000,000 bank guarantees – November 28, 1996
Public report into multiple breaches of the Leadership Code and other unlawful actions by Hon. Barak T. Sope – December 10, 1996
Public Report on the appointment of Maurice Michel to the Public Service and to the position of Auditor General – March 6, 1997
Public report on the improper interference with a land lease by the Former Minister of Foreign Affairs, Mr. Amos Bangabiti - March 19, 1997
Public Report on the premature birth and death of newborn twins at Vila Central Hospital – May 28, 1997
Public Report on the abuse of VNPF tendering procedures by VNPF Board and management – June 19, 1997
Public Report on the conduct of Hon. Willie Jimmy, Hon. Amos Bangabiti and Mr. Aime Malere in the sale of the M. V. Savin Fana – June 26, 1997
Public Report on the payment of “compensation” to Hon. Maxime Carlot Korman, Hon. Willie Jimmy and Hon Barak Sope in breach of the Leadership Code and the Compensation Act 1994 – July 3, 1997
Public Report on the discriminatory recruitment procedures by the Public Service Commission concerning positions in the forestry department - July 9, 1997.
Public Report on delayed action by police to curb unrest at Paunangisu Village – August 12, 1997
Public Report on the National Bank of Vanuatu former Board members’ trip to Fiji on 17th – 24th October, 1995 - September 10, 1997
Public Report on the illegal hospital panel signs contract – October 1, 1997
Public Report on Resort Las Vegas and granting of illegal Passports - December 3, 1997
Public Report on the Vanuatu National Provident Fund housing loan scheme - December 17, 1997
Public Report on ex gratia Payments to 23 Members of Parliament - December 18, 1997
Public Report on the conduct of 19 Members of Parliament including the Prime Minister, and Ministers of Justice, Public Works, Tourism, Telecommunications, Home Affairs, and Foreign Affairs in seeking a pardon for a fugitive from justice – January 30, 1998
Public Report on the misconduct of Minister Demis Lango – February 3, 1998
Public Report on the illegal issue of ordinary and diplomatic passports to Jian Peng Chen and family and misconduct of Prime Minister Serge Vohor, Former Minister Willie Jimmy and others – February 6, 1998
Public Report on the Conduct of Prime Minister Serge Vohor, Hon Barak Sope and Hon Vincent Boulekone and the Volani contract – February 20, 1998
Public Report on breaches of the Leadership Code by Sato Kilman, Minister of Lands – February 24, 1998
Public report on the breach of the Leadership Code and misuse of Cyclone Betsy account by the Former Prime Minister of Vanuatu, Mr. Maxime Carlot Korman – February 26, 1998
Public Report on the improper sale of Government houses by the office of the Prime Minister under the former Prime Minister Maxime Carlot Korman - March 3, 1998
Public Report on the improper and unlawful issue of diplomatic and official passports to “Honourary Consuls”, “Trade Commissioners” and other “Special” Vanuatu representatives and Ministerial “Advisors” – March 13, 1998
Public Report on the illegal creation of CVDC Holdings SA and the People of Vanuatu Trust and breach of the Leadership Code by Hon. Vincent Boulekone, Minister of Finance – March 24, 1998
Public Report on the improper granting of land lease title 11/0E22/016 by the former Minister Paul Telukluk and former Director of Lands Roger Tary – April 9, 1998
Public report on the improper appointments and promotions of health workers in November 1995 – April 17, 1998
Public report on the improper appointment of Mr. Yves Niowenmal as Director of Health – April 29, 1998
Public report on the improper conduct by Mr. Hilton Tarileo, Deputy Director of Cooperatives Department, and lack of disciplinary action against Mr. Tarileo – May 7, 1998
Public report on the improper appointment of male nurse Peter Yunak - June 11, 1998
Public report on (1) Failing to hold a competent disciplinary hearing for former foreign affairs director Mr. Jean Sese and (2) appointing Mr. Sese Director- General of the Prime Minister’s Office with disciplinary action outstanding – July 9, 1998.
Public Report on the alleged bribery of voters and alleged breach of the Leadership Code by Mr. Barak Tame Sope – July 17, 1998
Public report on the improper appointment of Mr. Luc Siba as the Commissioner of Police and his misconduct in office – August 13, 1998
Public Report on the Improper hiring of Leonard Kalo and Mr. Louis Urleles as Dental Officers - August 18, 1998
Public report on the improper retirement of a senior police officer – August 20, 1998
Public Report on the Improper issuing of duty exemption by Hon. Willie Jimmy and Customs Department - September 23, 1998
Public Report on the delay in police investigations - September 30, 1998
Public Report on the improper purchase of Public Works Department lorries in 1994 - November 20, 1998
Public Report on the illegal tender procedure adopted by former Director of Lands, Roger Tary and former Minister of Lands Paul Telukluk for Canal du Second II and Pepsi Subdivision water projects, Luganville – November 25, 1998
Public Report on the purchase, repair, management, operation and sale of Prince II - December 12, 1998
Public Report on the illegal Purchase of 11 ministerial Cars in 1996 by Former Prime Minister Mr Serge Vohor - December 18, 1998
Public Report on the ethics and legality of the trade-in of the Ministry of Finance Car–G188 MOF - February 10, 1999
Public report on the former Prime Minster, Mr. Korman’s use of his influence in the exercise of his official duties in favour of his sister, Mrs. Antoinette Coulon – February 19, 1999
Public Report on the Improper Appointment of Senior Public Works Department Staff - March 11, 1999
Public Report on the illegal compensation payments to staff of Prime Minister’s Office and Finance Department - April 16, 1999
Public report on the granting of leases by the former Minister of Lands Mr. Paul Barthelemy Telukluk to himself, family members and wantoks - April 22, 1999
Public Report on the Vanuatu Fire Service failure to put out the fire on 6 May 1998 at Paris Shopping , Snoopy’s, Au Pęché Mignon and Frank King Tours - May 12, 1999
Report on the illegal and unconstitutional discrimination in the Citizenship Act - May 18, 1999
Public Report on the mismanagement of the tender sale of ten deportees’ properties by the Former Minister of Lands, Mr. Paul Telukluk - May 28, 1999
Public Report on the improper procedures used to extend the employment contract of Dr. Trinata A. Mananahar, a Dental Officer at Vila General Hospital - June 24, 1999
Public Report on the mismanagement of the Vanuatu Livestock Development Ltd by the former manager, Selwyn Leodoro in 1992 – 1993 and illegal conduct of the Former Chairman of the Board, Tom Kalorib - July 23, 1999
Public Report on the Discriminatory Criteria of the Vanuatu National Examinations Board for Admission to Year 7 - August 13, 1999
Public Report on the maladministration and political interference of loans by the Development Bank of Vanuatu - August 13, 1999
Conversion into Anglophone school of French speaking public primary school at Mangliliu (North Western Efate) - September 9, 1999
Report on prison conditions and mismanagement of prison budget - September 16, 1999
Public report on ordinary passports numbered A004302 to A004305 – November 26, 1999
Public report on the delayed appointment of a gynaecologist/obstetrician for Vila Central Hospital – December 9, 1999
Public Report on the loss of properties at Santo Police Station – December 14, 1999
Public Report on the alleged breaches of the Leadership Code by John William Timakata (Former Public Prosecutor) - December 28, 1999
Failure of Some Leaders to file annual returns to the Clerk of Parliament - February 29, 2000
Public report on the improper concessions given by the former Minister of Public Works, Mr. Amos Andeng to Mr. Li Zhong Heng – February 25, 2000
Public report on the unlawful solitary confinement of three prisoners by prison authorities - March 13, 2000
Public Report on delay within the Labour Department - May 16, 2000
Public Report on the unlawful suspension of a secondary school teacher by Mr. Antoine Thyna and the Teaching Service Commission – June 26, 2000