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Interpretation of the Ombudsman role by Vanuatu’s first Ombudsman KJ Crossland
Five principal features emerged during the author’s two-year assignment. These are:
What is examined below is to inquire why these features were present and how they were manifested. This is done by reference to reports and events occurring during the author’s assignment. Champion and servant of the people
The mission statement in the Office of the Ombudsman’s Corporate Plan (1995-1999) is "[t]o work with the government and the people of Vanuatu in promoting and entrenching good governance and government accountability in Vanuatu.
During the UMP-led coalition government (July 1994-March 1998) it was difficult for Ombudsman Patterson and staff to secure any kind of meaningful co-operation from many Government leaders. Without that co-operation from the top, the Office of the Ombudsman was unable in many instances to "work with the Government". The impediments ranged from simple and repeated failure to return telephone calls through to the unlawful Council of Minister’s decision to ask the President to terminate the President’s appointment of Ombudsman Patterson in June 1997, and the repeal in November 1998 of the Ombudsman Act No 15 of 1995.
Why was this? In simple terms, it was because Ombudsman Patterson was seeking to make several senior political leaders publicly accountable. This was an anathema to those targeted. Starting from the time of Ombudsman Patterson’s release of the report into the US$100 million back guarantees in July 1995 there were a number of public attacks made on the Ombudsman, which were increasingly vitriolic. The principal sources of such statements were Mr Barak Sope, Mr Serge Vohor, Mr Maxime Carlot Korman and Mr Willie Jimmy. Several of these were made under the protection of parliamentary privilege. Some examples are set out below.
Responding to the Ombudsman’s Public Report into the Nambawan Bottle Shop (20 August 1996) Mr Willie Jimmy said: [1]
On 5 August 1997, Prime Minister Vohor was interviewed on Television Blong Vanuatu about the Cabinet’s decision to repeal the Ombudsman Act. Mr Vohor stated that indigenous people should run their own country and not allow "former colonialists" to decide their future. He added that they he would not allow people with "colonial ideas" to dictate to Ni-Vanuatu what is right or wrong. Mr Vohor later apologised for these remarks.
Despite Ombudsman Patterson being a citizen, her race and even sex were grounds for attack from those disgruntled with revelations made about them. In November 1997, during the debate on the Repeal of the Ombudsman Act in Parliament, Mr Sope defended his support of the Bill because Melanesian culture did not allow women to criticise men.[2]
The above observation would be incomplete were not mention made of the fact that during this challenging period the Office of the Ombudsman did meet with co-operation, or at least a desire to co-operate with investigations, from lower echelons in Ministries. However, that willingness to assist was often tempered by a fear of losing one’s job or the countermanding of the initial steps of co-operation. A demonstrative example is the Ombudsman’s investigation of late 1997/1998 into allegations of expense irregularities by a senior figure. Employees who were initially responding favourably to requests for information stopped after receiving a letter from the leader concerned instructing that further co-operation would result in loss of position. In this case, the Ombudsman successfully obtained the information from the employees concerned following an application under section 17(7) of the Act.
A change in approach started to be seen in the early months of the new VP/NUP Government, which took office from 31 March 1998. Perhaps as a reflection of the CRP spirit that the new government embraced there was a willingness to seek out the Ombudsman Patterson for views on certain topics. [3] In this early stage of the new government, a perceptible attitudinal change flowed through. Officers experienced increasing co-operation through telephone requests for witnesses to attend without the need of having to resort to the use of a summons.
The perception however within Vanuatu has to the date of writing firmly established the Ombudsman in the national psyche as an institution belonging to the people. In June and July 1997 the Ombudsman publicly reported on two sets of payments made by the UMP-led Council of Ministers in 1993 and 1994.
These were the ex gratia payments of VT1.5 million (US$14,000 approx.) to 23 former and current UMP and MPP MPs and payments of VT5 million (US$46,000) paid to Mr Willie Jimmy, Mr Maxime Carlot Korman and Mr Barak Sope. [4] The Ombudsman recommended that the payments be returned to the Republic as the payments had no basis in law. These reports struck a chord with the grass roots population and a number of letters were sent to the Office that suggest that for the writers of these letters, the Ombudsman was tantamount to the people’s champion. Included below are some examples received by the Office during this period: [5]
This type of letter of support was not exclusively limited to this period. Throughout the period similar letters were being published on a regular basis in the letters to the editor column of the Trading Post.
Moralising "preambles" in public reports with overtly
Christian orientation
Some expatriates both in the private sector and diplomatic corps, found the biblical quotes and preambles that appear at the start of every public report odd and questioned its relevance. The author’s advice as to the policy of the Office in such discussions was that "the reports are not written for you, they are written for the Ni-Vanuatu." Certainly, one can observe that in increasingly secular western societies, Christianity as the natural moral touchstone does not hold a place of centrality that it once did.
In Vanuatu however, Christianity is central to everyday life and society. All meetings of public servants and statutory bodies start with prayer. Many politicians are former preachers, as is Justice Saksak. Justice Saksak sometimes starts the Supreme Court’s business for the day by asking a member in the public gallery (often a pastor) to say a prayer. The second quoted letter in the previous section typifies the average Ni-Vanuatu’s view on the merger of secular duties and religious life.
Before some Court cases, church leaders came to the Office of the Ombudsman to pray with the Ombudsman and staff. On one occasion, a man rang from Ambae before the Ombudsman’s Court challenge to the Council of Minister’s decision to request the President to terminate Ombudsman Patterson’s appointment. This caller informed a staff member that he and his village were fasting and praying for the Ombudsman’s success in the Court. [7]
The above gives some indication of the context within which the Office of the Ombudsman operates. It is appropriate for an Ombudsman to tailor or adapt the role to suit local conditions and culture. In Vanuatu’s case, from a legal standpoint, the preamble to the Constitution contains the best justification for the Office of the Ombudsman’s orientation of its reports in a Christian framework. The preamble states:
Likewise, people in calling for higher standards of public behaviour and accountability from leaders frequently invoke the motto of the country. Vanuatu’s motto is "Long God yumi stanap" which translates as "[b]efore God we stand". This comprehends a sense of being judged for one’s actions and having to answer for one’s actions to God.
Examining some preambles taken from selected Ombudsman public reports is instructive and interesting.. The first example below is from the Public Report on delayed action by Police to curb unrest at Paunangisu village (12 August 1997). The Ombudsman’s enquiry arose because of the police delay in preventing internecine quarrelling over which of two claimants was the new chief of a rural village in north Efaté. Law and order was lost for three months. This finally erupted into fighting, property damage, looting and general mayhem. The Ombudsman was highly critical of the police for doing too little too late as well as being generally incompetent. [8] In the preamble, the Ombudsman chose a passage from the Book of Job to underline the consequences of loss of discipline and explained it as follows in the context of the case.
On 6 March 1997, the Ombudsman issued the Public Report on the appointment of Maurice Michel to the Public Service and to the position of Auditor General (6 March 1997). This report was concerned with nepotism in appointments to posts that should have been based on merit. Michel had a serious criminal conviction for which he had served a custodial sentence. After his release from jail, through his political connections to the UMP, [9] he was able to secure a senior post in the Public Service Department. Shortly thereafter, he was promoted to Auditor General with the approval of then Prime Minister, Mr Maxime Carlot Korman. This had occurred despite the fact that he had not applied formally to the Public Service Commission. Moreover, the Public Service Manual regulations prohibited appointment of persons with criminal convictions four years prior to application. [10]
The preamble of the report draws analogy with the prophet Ezekiel’s prediction of the fall of Israel because of the loss of its moral compass.
The final example is from the Public Report on the Misconduct of Minister Demis Lango (3 February 1998). This report detailed adultery and alleged rape by Minister Lango on Government premises after late night partying. The preamble places the Minister’s conduct in the context of God’s warning of the consequence of the Jews breaking the covenant He had made with their ancestors when He led them from Egypt:
Of topical interest at the time was an article published in The Wall Street Journal. This article drew parallels between the work of Ombudsman Patterson and US Independent Counsel Kenneth Starr’s investigations into the conduct of US President, Mr Bill Clinton. The journalist remarked that Ombudsman Patterson "… makes the universally relevant observation that ‘leaders … cannot be permitted to exploit their positions for inappropriate sexual conquest, any more for financial gain." [11]
Whilst in Western countries, for many, the drawing of direct correlation between events and prophesies from the Bible and contemporary public life may seem old-fashioned it is very much de rigueur in Vanuatu. With the recent translation of the Bible into Bislama it may now be more appropriate to switch from the King James version to its vernacular equivalent.
Combative rather than conciliatory approach in power misuse and corruption cases
The nature of corruption is that part of the crime is to hide itself. From its experience gained early on and common sense, the Office of the Ombudsman concluded that a conciliatory approach would not work with enquiries into misuse of power and corruption. Two examples of this experience appear below. Additionally, in practical terms, to go down the path of conciliation or mediation gives the subject of the enquiry valuable time to organise his or her affairs to avoid later detection.
Section 16(3) and section 19(5)(b) of the now repealed Act recognised this reality. Section 16(3) allowed the Ombudsman to defer giving the enquiry’s subject notice of the enquiry where "notification will interfere with his preliminary inquiry". Likewise, section 19(5)(b) provided an exception to the requesting of consents to obtain personal information where "the information of a personal nature is or may reveal (either alone or taken with other information) a breach of the Leadership Code, corruption or misappropriation".
The Leymang enquiry is a case in point. Father Leymang, a catholic priest, was formerly a UMP MP and before that a Chief Minister in the pre-independence National Assembly. The Office of the Ombudsman received a complaint from an expatriate businessperson who had been a significant employer for many years. The complainant suggested that Father Leymang had directed the Immigration Department to not renew the complainant’s residency permit. At this time, Father Leymang was the first political secretary in the Prime Minister’s Office. He had no responsibility or jurisdiction over immigration matters.
Father Leymang was summonsed and duly attended. During his interview, he stated that he had acted after receipt of complaints against the complainant. Father Leymang refused to disclose the identities of these persons. Father Leymang could not be prevailed upon to disclose the identities when forced to appear before the Supreme Court following an application made under section 17(7) of the Act. [12] Moreover, he filed his own petition alleging constitutional breaches against the Ombudsman.
Father Leymang’s petition was dismissed, the Ombudsman’s application allowed and Father Leymang ordered to be examined. Father Leymang refused to answer questions put to him at two further sittings of the Court. Ultimately, he was sentenced to six months’ imprisonment for contempt with this order lying in Court unexecuted for three weeks to allow for Father Leymang to either comply or appeal.
Father Leymang appealed. The Court of Appeal rejected the appeal. The President of the Court, Justice Robertson gave Father Leymang a final opportunity to purge the contempt by answering the Ombudsman’s questions. [13] Father Leymang complied. Some of the submissions made by Father Leymang shed light on why he mounted such obdurate resistance. One of the important points for Father Leymang was his view that what went on in the Prime Minister’s Office was inviolable.
Following the case, Father Leymang wrote a vitriolic and xenophobic letter that was published in a French language Tahitian newsmagazine. [14] This letter was translated into English and appeared on the front page of the Trading Post on 18 February 1998. [15] The letter called for the confiscation of Ombudsman Patterson’s passport and her deportation as a persona non-grata. [16] Father Leymang stated that he had been vindicated by the Appeal Court. He stated: [17]
Father Leymang’s figures were incorrect. The government budget for the Office of the Ombudsman was Vt 28 million representing 0.1% of the total annual budget for Vanuatu. The assistance that the Office of the Ombudsman had received at that time from Australia amounted to the funding of the cost of a photocopier and paying for the Ombudsman’s reports to be professionally translated into Bislama. In an undisciplined reply to Father Leymang’s letter, Ombudsman Patterson publicly stated: [18]
What the experience with the Leymang enquiry appears to demonstrate was that it would have been pointless to have attempted a mediation or conciliation at the start of the enquiry. Having secured the high moral ground after patient use of the judicial process it is regrettable that Ombudsman Patterson entered the fray to respond in the fashion above. However, it should be recognised that even Ombudsmen are not infallible and in a pressure cooker environment intemperate remarks are sometimes made without reflection.
The second example of an enquiry where it would have been inappropriate to have given warning to the subject was the "Cyclone Betsy case". In January 1992, Cyclone Betsy did considerable damage to Vanuatu. Many countries came to Vanuatu’s assistance with donations, including money. At this time, then Prime Minister Mr Maxime Carlot Korman opened a bank account styled "Carlot Maxime (Comité Secours [Relief Committee] Cyclone Betsy)". In late 1997, the Office of the Ombudsman investigated the operation of the account using the powers under article 62(3) and relying on the exception in section 19(5)(b) of the Act. [20]
The Office of the Ombudsman found that funds from France tagged for cyclone relief had been transferred to another account held by Mr Carlot Korman for his own use. That was not the only unusual aspect. Statements for the two accounts showed non-attributable deposits totalling Vt126 million (US$1.1 million). This amounted to 45 times Mr Carlot Korman’s annual salary. The sources of some of the funds were traced back to Singaporean and Malaysian bank accounts apparently controlled by Mr Carlot Korman.
A remarkable facsimile that had been provided anonymously back in 1996 gave new meaning in light of what the bank statements revealed. Set out below is the full text of a hand-written facsimile dated in August 1995 addressed to Mr Lien Than (aka Paul Than) then "Honorary Consul for Asia" [21] signed by Mr Carlot Korman. [22]
Mr Carlot Korman’s bank accounts revealed that he had issued 147 cash cheques for amounts between Vt5,000-80,000 ($US45-750 approx.) two days before the December 1995 elections. In his reply to the Ombudsman’s preliminary report, Mr Carlot Korman did not refute the Ombudsman’s accusation that he had engaged in electoral fraud. [23]
It is difficult to comprehend how Mr Carlot Korman in this case left so much incriminating evidence behind. One can speculate that Mr Carlot Korman must have considered himself untouchable and did not imagine the Ombudsman would use her powers to summon his bank accounts without his knowledge. One wonders how successful the enquiry would have been had the Ombudsman alerted Mr Carlot Korman to it and its nature. The author suggests that legal impediments would have been erected to frustrate and probably foil investigations. This example demonstrates that it would have been impractical and unrealistic to have adopted a mediatory approach. As can be seen, the nature of the Ombudsman’s function in this enquiry was very different from the orthodox model and more akin to an anti-corruption commission.
The Ombudsman as educator
The above discussion contains a few examples of what was a period of extreme stress in Vanuatu’s politics. For the first time in Vanuatu’s history, its leaders were under sustained and trenchant criticism, and publicly so. It was remarkable. Men who had held the reins of power for up to 20 years were being castigated in several reported enquiries. They were not only found to have repeatedly breached the leadership code, but in some cases being accused of prima facie criminal activity. It was unprecedented.
This created considerable interest within Vanuatu and elsewhere in the region. From the Office of the Ombudsman’s revelations, people began to learn more about the way power was exercised in Vanuatu. In the Pacific region, from the time of the $US100 bank guarantee fraud in July 1996, the regional monthly magazines carried news of the Ombudsman Patterson’s activities in just about every issue.
On 28 July 1997, the Pacific Islands News Association ("PINA") awarded Ombudsman Patterson its Freedom of Information award in recognition of the reports that had raised public awareness about the conduct of some of Vanuatu’s ruling elite. In making the award in Port Vila, the presenter, Mr Len Garae, said:
The public reports were and are the principal tool used in creating a discourse to support public education about the Constitution, expected standards of public behaviour by leaders and human rights. By January 1998, the Office of the Ombudsman had established a very wide network of people throughout the archipelago. This network comprises chiefs, church leaders, teachers, health workers, police officers and other community leaders. The geography of Vanuatu made this no mean feat. The relative expense of air travel and the vagaries of the sea also are contributing factors.
The other immediate factor that affects getting the message out is language. Whilst all three official languages are used in the Office of the Ombudsman, the working language for reports is mainly English and sometimes French. Rarely, is Bislama used for writing reports, though this is now being addressed with AUSAID funding translation of all reports. The problem the Office of the Ombudsman faced was that many of those grassroots who could read, could only do so in Bislama. It is recalled that Bislama is a second language for indigenous Ni-Vanuatu and English or French, the third. [24]Therefore, the Office of the Ombudsman responded by translating its reports into Bislama. Initially, this was done using the Government Translation Services. Later, as mentioned, donor funds were secured from AUSAID. [25] The distribution of reports to civil society was embraced enthusiastically. The letter reproduced below shows this. The correspondent conducted his own fund raising to pay for further copying of the reports and to hold public meetings.
[Name supplied, with list of 36 grassroots leaders attached in support and 11 additional letters of support from Malekula, 28.08.97]
However, it was not only through the issuing and distribution of sometimes sensational public reports that the Office of the Ombudsman raised public awareness and knowledge. The other significant factor affecting educational strategies is literacy, placed variously around 50 to 60%. [26] To overcome this factor the Office of the Ombudsman adopted two strategies. The first, and most extensively and easily implemented, is the use of radio. The second which to date has been mainly confined to Efaté and Santo is public speaking.
Village life is slow compared to what those living in Western societies are accustomed. Less happens and entertainment options such as ‘eating out’, ‘going to the movies’, attending a gymnasium or visiting a museum do not feature. Outside of working in the gardens or fishing and the responsibilities of child rearing, two favourite pastimes are storian (for men in the nakamal, accompanied by kava) and listening to the radio. [27] From the author’s personal observations, radio is one of the constants in the life of an average Ni-Vanuatu. [28]
The Office of the Ombudsman made use of this medium. Consequently, since late 1996, on the release of every new public report, the investigator responsible will, along with preparing his or her press release, make an appointment with a radio journalist from Radio Vanuatu. The radio interviews are conducted in Bislama and are between 20 minutes to three-quarters of an hour long. The pre-recorded interviews are often aired after the midday news. In recent times, where the report has implicated a leader, the leader is also interviewed and his or her interview played following that of the investigator. Members of the public have made positive responses to the Office of the Ombudsman. Another positive result observed by the author has been the increase in confidence of the investigators.
Another strategy used by the Office of the Ombudsman was and is public speaking. Principally, this has been Ombudsman Patterson but more recently senior investigators have also addressed different grass roots groups. Because of the difficulties travelling and limited budget most of these public speaking engagements have been on Éfaté.
The topics covered in such addresses are the role of the Ombudsman, the Constitution, how to make a complaint and the principles of the Leadership Code and human rights. The speakers use practical examples from the many reports published by the Office of the Ombudsman. The audiences have included chiefs, women’s groups, school children and villages. In many instances, a number of investigators will attend, speak generally and field questions – of which, there are many. Particularly, when in the outer islands, these occasions have also resulted in new complaints being received by officers on site.
In June 1998, Ombudsman Patterson and several officers travelled by boat to islands in southern Vanuatu. [29] The delegation visited and spoke at many villages. The Office of the Ombudsman has planned a similar trip to northern Vanuatu is planned after the end of the cyclone season in 1999 (April). The value of these visits appears to be the sense of empowerment through knowledge.
In the last quarter of 1997 and the first of 1998, the Office of the Ombudsman ran two separate radio campaigns. Both were in Bislama and played every day for around two months each. The first focussed on the problem of wife beating. Essentially, it advised the public that this practise is a crime for which a man could be incarcerated on conviction. It encouraged women to report such incidents to the Police or failing action by the Police then to report that latter fact to the Ombudsman’s Office.
Subsequently, anecdotal evidence suggested that by highlighting this problem for Vanuatu, there has been a reduction in wife beating. The Office of the Ombudsman learnt from the father of a senior politician employed at an aid-post that following the advertising campaign, he had noticed a significant reduction in the amount of women receiving treatment for battery.
A Swedish lawyer and lecturer sailing his boat round the world related an interesting experience to the author. The Swede said that he spoken with some villagers about the Office of the Ombudsman when he had anchored his boat at a small island. They told him that a man could not now beat his wife because the Ombudsman’s Office had said on the radio that it was "tabu". The villagers explained that it was "tabu" in the same way that it was tabu under kastom to take turtles at certain times of the year.
The second radio campaign, also in Bislama, aired in the lead up to the March 1998 General Election. One of the Office’s lawyers, Mrs Lini-Leo, translated the main electoral offences into basic Bislama. [30] The message played thrice daily and, amongst other things, it advised the public to report any instances of "sweetenem man" (vote buying or treating) by current leaders seeking re-election. [31] The campaign proved controversial with a number of senior politicians claiming that it was misleading and that the Office of the Ombudsman should have no involvement. Leader of the MPP, [32] Mr Barak Sope ran a number of service messages on Radio Vanuatu telling the public to ignore the radio campaign.
As a direct result of the campaign, several complaints of electoral fraud were received. One of these resulted in an investigation into allegations that Mr Sope and others connected with the MPP had sent a consignment of rice to Aniwa. The rice was to be made available to persons in exchange for an assurance to vote for the local MPP candidate.[33] A number of unsuccessful candidates also sought advice from the Office of the Ombudsman and many of them subsequently filed electoral petitions in the Supreme Court. [34]
As noted, another educational strategy used by the Office of the Ombudsman was and is public speaking. Principally, this has been Ombudsman Patterson but more recently senior investigators have also addressed different grass roots groups. Because of the difficulties travelling and limited budget most of these public speaking engagements have been on Éfaté.
The topics covered in such addresses are the role of the Ombudsman, the Constitution, how to make a complaint to the Office of the Ombudsman, the principles of the Leadership Code and human rights. The speakers use practical examples from the many reports published by the Office of the Ombudsman. The audiences have included chiefs, women’s groups, school children and villages. In many instances, a number of investigators will attend, speak generally and field questions – of which, there are many. Particularly, when in the outer islands, these occasions have also resulted in new complaints being received by officers on site.
In June 1998, Ombudsman Patterson and several officers travelled by boat to islands in southern Vanuatu. [35] The delegation visited and spoke at many villages. The Office of the Ombudsman has planned a similar trip to northern Vanuatu is planned after the end of the cyclone season in 1999 (April). The value of these visits appears to be the sense of empowerment through knowledge.
Litigation in the Courts
Unsurprisingly, the Mrs Patterson’s uncompromising approach to the role of Ombudsman in revealing systemic corruption and misuse of power in the ruling elite caused vigorous reactions. However, it was not only a war of words. There were a number of attempts made in the Supreme Court to silence the Ombudsman or at least thwart the continuous flow of reports.
Mr Willie Jimmy, long time Finance Minister and now deputy Prime Minister, mounted the first legal challenge in July 1995. This preceded the enactment of the Ombudsman Act and appointment of in-house counsel for the Ombudsman. Mr Jimmy sought an injunction to prevent Ombudsman Patterson from releasing her report into the Nambawan Bottle Store. [36] He was partially successful. In his judgment, D’Imecourt CJ ordered that the Ombudsman allow Mr Jimmy to have further time to exercise his constitutional right of reply under article 62(5). The period set by the judge was 14 days. Thereafter, that has been the standard time for a right of reply for preliminary reports. All subsequent requests for extensions of time have been granted. Despite the ordinary nature of the case, Mr Jimmy has raised it publicly, particularly during his 1998 electoral campaign, as a significance victory.
The second case brought against the Ombudsman was by Mr Barak Sope. This was in October 1996. Again, it was an application for an interim injunction. The report whose publication Mr Sope wanted to stop was Public Report into Multiple Breaches of the Leadership Code and other unlawful conduct by Hon Barak T Sope. Because the Office of the Ombudsman had received several complaints about Mr Sope and learnt of other instances of unlawful conduct, Ombudsman Patterson decided that it was more efficient to produce an omnibus report examining twelve matters in this report. These are identified in the report’s summary along with the Ombudsman Patterson’s characterisation of Mr Sope:
On receiving the above catalogue of his failings in the preliminary report, it is not difficult to imagine that Mr Sope wanted to prevent it being revealed to the public. Mr Sope’s interlocutory application for an injunction was refused, as his lawyer was unable to satisfy the Court that Ombudsman Patterson had acted beyond jurisdiction. Lunabek ACJ also dismissed Mr Sope’s substantive proceeding on the Ombudsman’s application to strike out because it failed to disclose a reasonable cause of action. [37]
In March 1997, a third proceeding was issued naming the Ombudsman as defendant. This too contained an interlocutory application for an interim injunction brought. This was the Virelala case. The Board members of Air Vanuatu (appointed by the Council of Ministers) argued that the Ombudsman’s Act was not constitutionally enacted and therefore the enquiry in question was ultra vires.
The essential allegation being investigated by the Ombudsman were that the then Prime Minster, Mr Serge Vohor and the appointed Board members had intentionally ignored a detailed feasibility report. The feasibility report stated that if Air Vanuatu purchased an ATR 42 aeroplane then the airline would become insolvent and the economy of the Vanuatu gravely affected. Whilst the Office of the Ombudsman never got evidence of it, the Office’s supposition was that the total lack of commercial logic may have stemmed from Mr Vohor’s desire to garnish favour with France.
Ombudsman Patterson was successful again. However, the six months it took for the Supreme Court to make a decision in the interlocutory application for interim injunction meant that the plaintiff applicants obtained de facto injunctive relief and momentum was lost in the enquiry. From September 1997 through to February 1998, Ombudsman was under vigorous attack from the Council of Ministers. By the time the Office had repelled these attacks and the Supreme Court decision received in the favour of the Ombudsman, the objective of issuing a report on the Air Vanuatu matter had largely passed. Mr Virelala and Air Vanuatu’s management maintained their position in opting to lease another model and this eventually was proceeded with.
By the end of July 1997, members of the Council of Ministers were facing the prospect of further legal actions. This time they were not the initiators. Rather, the Ombudsman filed legal actions against them under section 30 of the Ombudsman Act. It is worth digressing to explain the provisions of section as they are unorthodox compared to the Ombudsman concept as understood in the Scandinavian and Australasian model.
With the exception of Pakistan, section 30 was a unique provision to Ombudsman legislation to the best of the author’s research. Section 30(1) states that the powers of enforcement are limited to report making, publicity and the making of recommendations. However, section 30(2) gave the Ombudsman locus standi to apply direct to the Court for an order "giving effect to a recommendation" in certain circumstances. It provides:
In short what is required is:
Ombudsman Patterson had filed two applications under section 30(2) of the Act. The first sought an order giving effect to an unfollowed recommendation that the 23 MPs return ex gratia payments made to them in 1993 of VT1.5 million. The second case sought an identical order in respect to "compensation" payments of VT 5 million made to Messrs Carlot Korman, Jimmy and Sope in 1994. The two matters were argued in the context of a pre-trial application before Lunabek ACJ for several days in July 1998. [38]
Three of the four elements mentioned above are unproblematic. The second element is not so straightforward. What does "the responsible person" mean? It is undefined in the Act. It could be that the person to whom the Ombudsman reports with recommendations under section 23(1) of the Act involving (Leadership Code) breaches is the "responsible person". [39] That comprehends the President and Prime Minister in the case of Government MPs or the President and the Leader of the Opposition in the case of Opposition MPs. Under this reading, it is these persons who are responsible for taking remedial action.
However, in the factual situations of these two reports it is a request for money to be returned. How can the Prime Minister or President "decide" (under section 25(1) [40] and article 63(4)) [41] that the payments made to these individuals are to be returned. They have no power of compulsion over the recipients of this money. Indeed, the situation is exacerbated in the first case because one of the recipients of the ex gratia payments was Mr Serge Vohor, Prime Minister at the time the recommendation was made. In the second case, Mr Maxime Carlot Korman was the recipient of the "compensation" payment at the time it was paid.
Overall, it is hardly realistic to expect a political party that has acted deliberately and politically through its Government Ministers led by the Prime Minister to make the payments to unmake the payments. The decision, when it is issued, will provide interesting reading over what it is a thorny political and legal problem.
Conclusion
It is premature to make any real assessment about whether the activities of the Office of the Ombudsman will result in a long-term and paradigmatic politico-societal change that produces real improvement in the lot of the average Ni-Vanuatu. What perhaps can be said with some confidence at this stage is that the scales have been lifted from the eyes of the electorate. The cathartic episode of the January 1998 riot that followed the release of the report into gross political misuse of the Vanuatu’s superannuation fund gives ample evidence of that. [42] Yet, paradoxically, the chief architect of that debilitating and damaging series of incidents, Mr Willie Jimmy, was returned to Parliament and at the date of writing appears poised to become Prime Minister. This and many other unfathomable political and legal outcomes may give cause for consideration of the utility and place of the democratic nation state model in Vanuatu (and Melanesia). That expansive topic is another story for another day.
Endnotes
(a) . . . (b) the person holding the information shall obtain any consents required by the law or duty before disclosing any information of a personal nature except where the information of a personal nature is or may reveal (either alone or taken with other information) a breach of the Leadership Code, corruption or misappropriation; . . .", [Emphasis added] Ombudsman Act, s. 19(5)(b). |
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