|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Supreme Court of Vanuatu |
[Recent Decisions] [Noteup] [Download] [Help]
IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
CIVIL CASE No. 199 OF 2002
BETWEEN
BARAK
TAME SOPE MAUTAMATE
of Ifira Island,
South Efate in the Republic of
Vanuatu.
Plaintiff
AND
THE
SPEAKER OF
PARLIAMENT,
Hon.
Henry Taga
TARIKAREA
C/-
Parliament House, Port Vila
in the
Republic of
Vanuatu.
Defendant
Coram:
Vincent LUNABEK
CJ
Mr. Kalkot
Mataskelekele for the
plaintiff
Messrs.
M. B. Edwards and A. K. Loughman for the
defendant
Date of Hearing:
4th
February 2003.
Date of Judgment:
13th
February 2003.
JUDGMENT
This is an Originating
Summons of the plaintiff dated
12th
December 2002 and filed on
13th
December 2002.The plaintiff in this action is Mr. Barak Tame Sope Mautamate of
the Island of Ifira, South Efate in the Republic of
Vanuatu. The defendant is
the Speaker of Parliament, Hon. Henry Taga Tarikarea. In this Summons, the
plaintiff seeks for the following
declarations:-
1. That the plaintiff still remains a duly elected Member of Parliament by virtue of the legal effect of the Presidential pardon;
2. That the Speaker of Parliament forthwith permit the plaintiff to attend the current Parliament sittings;
3. Costs; and
4. Other and further orders as the Court may deem fit.
At
the outset, the facts are not in dispute. The plaintiff files an affidavit date
14 December 2002 in support of the Summons. The
substantive parts of which are
struck out as irrelevant. The plaintiff was duly elected a Member of Parliament
on
2nd
May 2002. He was convicted by the Supreme Court of offences of forgery on
19th
July 2002 and sentenced on the same date to a term of 3 years
imprisonment.
On
5th
November 2002, the plaintiff filed Notice of Appeal and a Notice of Motion to
enlarge time to appeal against the sentence at the
Court of Appeal Registry in
Port Vila.
On
13th
November 2002, His Excellency the President of the Republic pursuant to Article
38 of the Constitution pardoned the plaintiff of
the offences (sic) for which he
was convicted.
On
12th
December 2002, the plaintiff by counsel filed this Originating Summons. On
13th
December 2002, the plaintiff's counsel
filed a notice of appointment to hear the Originating Summons as a matter of
urgency.
This Court sat and heard
the application for urgency on
16th
December 2002 and refused the application because there is no urgency shown by
the plaintiff. The matter was then set for hearing
on
4th
February 2003 at 9 a.m.
On 4
February 2003, the plaintiff asks the Court to determine three questions. They
set out below:-
1. Does the Presidential pardon to the plaintiff on 13th November 2002 completely pardon the plaintiff of his conviction and/or sentence imposed by the Supreme Court on July 19th, 2002?
2. What effect in law if any did the Presidential pardon have on the provisions of the Members of Parliament (vacation of seats) Act [CAP. 174] in particular the provisions of Section 3(1) as they relate to the plaintiff?
3. Given the Presidential pardon does Mr. Sope Mautamate still remain a Member of Parliament or has his parliamentary seat become vacant under the terms of [CAP. 174]?
The
defendant says that the only issue
is:
Is the plaintiff's
parliamentary seat restored by virtue of him being pardoned by the President of
the Republic of Vanuatu under Article
38 of the
Constitution?
Both parties agree
that the critical question is for the Court to determine the legal effect of the
pardon and not whether the pardon
was legally
given.
Before me there is no
dispute that the President had discretion to grant pardon and there is no
challenge to its validity.
The
power of the President to pardon is provided under Article 38 of the
Constitution. I am asked to determine the legal effect of
the presidential
pardon of 13 November 2002 in relation to the plaintiff and in particular
whether his parliamentary seat has become
vacant under Section 3 of the vacation
of seats Act [CAP. 174].
Before I
can determine the legal effect of the presidential pardon under Article 38 of
the Constitution, I must bear in mind that
I am dealing with a constitutional
provision. I have to ascertain the clarity of that provision and its meaning.
The starting point
of a construction and/or interpretation of a provision of the
Constitution is the Constitution itself. It is the supreme law of Vanuatu.
Where
there is room for debate or it is possible that ambiguity exists assistance may
be gained from consideration of the cases of
the commonwealth or other
jurisdictions. But any of that is in all circumstances and at all time subject
to the clear and unambiguous
words of the Constitution which is the supreme law.
(See A.C. No. 11 of 2001, A.C. No. 6 of 2002, and other Supreme Court decisions
including CC No. 124 of 1994 referred to me in
Court).
Article 38 of the
Constitution provides:
"The President of the Republic of Vanuatu 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". (Emphasis added).
By
Article 38, the President has authority to pardon a sentence imposed on a person
who is convicted of an offence. It is clear from
this Article that, the
President has the power to pardon a sentence. Article 38 is silent on how and
from when or what is the starting
point the pardon of a sentence comes in force.
It is also silent on whether the President has the authority to pardon a
conviction
secured by a court against a person for the commission of an
offence.
Counsel for the plaintiff
submitted that the legal effect of a Presidential pardon, which is a
constitutional instrument, must be
absolute, otherwise the power is rendered
meaningless. Therefore, notwithstanding the time and date of a pardon being
granted, in
Vanuatu usually after the conviction of a person, the legal effect
of the pardon starts at the very time the conviction and/or sentence
was imposed
on the convicted person. It is further submitted for the plaintiff that although
he was convicted and sentenced on 19
July 2002 and, although the Presidential
pardon was only granted on 13 November 2002, the pardon, in order to be
absolute, or completely
effective, was deemed to have come into effect on 19
July 2002, i.e. it is effective ab
initio.
The above submissions must
be rejected for the following
reasons.
The power of pardon under
Article 38 cannot be read and interpreted in isolation. It must be read and
interpreted in conjunction with
other provisions of the Constitution in
particular Articles 5 & 6 relating to duties and jurisdictions or powers of
the Supreme
Court in the protection and enforcement of fundamental rights of the
people and Articles 47(1), 49(1) and 50 in relation to the administration
of
justice which is vested in the judiciary, the unlimited jurisdictions and/or
powers of the Supreme Court in its original and/
or first instance and appellate
levels to hear and determine civil and criminal proceedings as enshrined in the
Constitution.
It follows that
under Article 38, the President has no power to pardon a conviction secured by
the Court on a person for the commission
of an offence. The presidential pardon
cannot make a conviction a nullity. What the pardon does is to remove the
penalty/sentence
imposed by the
Court.
The presidential power to
pardon a sentence under Article 38 of the Constitution, translates the intention
of the constitutional founding
fathers that the power of pardon which is the
prerogative of mercy is different and must be so from the prerogative of
justice. It
does not, therefore, embrace the prerogative of justice. It follows,
then, that only the Courts on appellate levels can quash a
conviction.
I am also assisted and
supported by the submissions made on behalf of the defendant's counsels and the
persuasive authorities referred
to and in particular the English case of
R. v.
Foster (1984) 2 All ER 679. In Foster,
the English Court of Appeal held that the effects of a pardon is such as to
remove from the subject
of punishment whatsoever that flow from the conviction,
but does not eliminate the conviction itself. I adopt and accept the decision
of
the English Court of Appeal in Foster as, I think, there is room for debate on
the legal effect of the presidential pardon under
Article 38 of the Constitution
and the principles of law applied in that case will assist this Court in its
judgment in the case
at hand.
The
plaintiff's further submission that the instrument of pardon starts to have
effect not from the date of the instrument but from
the very date the sentence
had been imposed and in the present case,
19th
July 2002, is also
rejected.
Article 38 is silent on
the point. The words of the instrument of pardon may be instructive in
interpreting the effect of the pardon
and ascertain from when or the date of its
coming into effect.
The instrument
of pardon, granted by the President on 13 November 2002, to pardon the plaintiff
is set out below for ease of reference.
"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 BARAK TAME SOPE was convicted and found guilty of certain offences by the Supreme Court of the Republic of Vanuatu on 19 July, 2002 and sentenced to three years imprisonment.
AND WHEREAS I am of the opinion that the continued imprisonment of BARAK TAME SOPE may be injurious to his health;
In the exercise of the power conferred on me by Article 38 of the Constitution I, FATHER JOHN BENNETT BANI, President of the Republic of Vanuatu, HEREBY PARDON BARAK TAME SOPE of the offences for which he was convicted in the Supreme on 19 July 2002.
MADE at the State Office this 13th day of November, 2002.
.....................
FATHER
JOHN BENNETT
BANI
President of
the Republic of Vanuatu" (Emphasis
added).
The instrument of pardon
is a constitutional instrument. It was dated 13 November 2002 and published on
14 November 2002 in an Extraordinary
Gazette No. 9. In accordance with Section
16 of the Interpretation Act [Cap. 132], I take judicial notice of
it.
I note that the ground of the
pardon of the plaintiff in the opinion of His Excellency the President, was that
the continued imprisonment
of the plaintiff may be injurious to his
health.
I note further that the
instrument does not show from when or the starting point the pardon starts to
have effect.
I note finally that
the term of the instrument was inelegantly drafted, in that it purported to give
to the President of the Republic
a power to pardon Barak Tame Sope of
the
offences for which he was convicted in
the Supreme Court of Vanuatu on 19 July 2002. [Emphasis added]. This has the
effect of pardoning not
only the offences but also the conviction of the
plaintiff and it is not possible as it is beyond the presidential power under
Article
38. To save the pardon instrument of its legality, it has to be read
down to its constitutional limit. To do that end, it is now
read down to
mean:-
"President of the Republic, Hereby Pardon the sentence imposed on Barak Tame Sope by the Supreme Court of Vanuatu of the offences for which he was convicted on 19 July 2002."
As
the date of the coming into effect of the constitutional instrument of pardon is
not expressly spelt out in the instrument itself,
the date of its publication in
the Official Gazette must be taken to be the date the maker of the
constitutional instrument, here,
the President intended the instrument to come
into force, which is 14 November
2002.
The plaintiff submitted also
by counsel that the pardon being a constitutional instrument, it overrides the
effects of all other laws
including the Penal Code Act [CAP. 136] and the
Members of Parliament (Vacation of Seats) Act [CAP.
174].
These submissions must also
fail and are rejected for the following
reasons:-
First, it is not
necessary to determine what effect the pardon has on the Penal Code Act as there
is no issue in this case with respect to that
Act.
Second, a constitutional
instrument is subject to the law unless expressly provided for in the
Constitution. The Constitution is the
supreme law of Vanuatu but that does not
make every instrument issued under powers granted under it above the law. The
Constitution
being the supreme law means that neither an Act of Parliament nor a
decision of a Court can make law inconsistent with it. It does
not mean that
anything done under the Constitution overrides other laws in Vanuatu. This is
also applicable to an act or decision
made by an authority exercising a power
given to it by the Constitution such as, the Executive and the President of the
Republic.
Third, the Members of
Parliament (Vacation of Seats) Act [CAP. 174] is a valid law as it is not
inconsistent with the Constitution. In this case, counsel for the plaintiff does
not challenge
the constitutional validity of the Members of Parliament (Vacation
of Seats) Act [CAP. 174] and in particular Section 3(1) of the Act. Section 3(1)
of the Act is a valid provision as conceded by counsel on behalf
of the
plaintiff.
The plaintiff's counsel
further submitted that Section 3 of the Members of Parliament (Vacation of
Seats) Act [CAP. 174] was legally deemed to have never come into play in the
plaintiff's case because the plaintiff legally, did not have 3
years sentence
imprisonment (by virtue of the pardon). This argument cannot stand and must
fail.
It is important to
understand that the Presidential pardon cannot override nor stay the operation
of an Act of Parliament, unless
the Constitution as the supreme law expressly so
provides to this effect.
The
pardon does not have a retroactive effect. It pardons the penalty of conviction
from the time it is granted. The pardon does not
remove the conviction. The
plaintiff was convicted and was sentenced to three years imprisonment. He served
his imprisonment sentence
from 19 July 2002 to 12 November 2002. He was, then,
pardoned on 13 November 2002. It is the unserved period of the three years
sentence,
at the time of the pardon, which has been pardoned. If the submission
of the plaintiff stands, then, it will be dangerous because
it will create a
legal fiction. The conviction still stands and the President has no power to set
it aside. The effect of pardon
is to make the plaintiff, a new man and to give
him a new credit from the date the pardon was granted. The pardon does not have
retrospective
effect of undoing what was done. The pardon does not mean
acquittal.
Section 3 of the
Members of Parliament (Vacation of Seats) Act [CAP. 174]
provides:
"3. (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 that the Speaker, or in his absence, the Deputy Speaker, may at the request of the 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 the approval of Parliament signified by resolution.
(2) If at any time before the member vacates his seats his conviction is set aside or a punishment other than 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."
By
perusing the language of section 3 of the Act, it is clear that the plaintiff
has lost his Parliamentary seat on 19 August 2002
by operation of that
section.
The fact that the
plaintiff has lost his Parliamentary seat under Section 3(1) of the Act, is not
a penalty of the conviction. The
loss of the seat was merely a consequence
flowing from his conviction. The penalty imposed on the plaintiff for his
offence was three
years imprisonment, not loss of his Parliamentary seat. This
follows from Section 3 of the member of Parliament (Vacation of Seats)
Act [CAP.
174].
Finally, I accept the
defendant's submissions that it was the fact of the conviction and a sentence of
imprisonment of not less than
2 years being imposed that resulted in the
plaintiff losing his seat. As Foster's case held the conviction remains even
though the
plaintiff has been pardoned from serving the remainder of his
sentence.
The operation of
subsection 3(1) of the Act is clear. If a member of Parliament is convicted and
sentenced to more than two years
imprisonment then subject to the proviso in
subsection 3(1) and subsection 3(2) the loss of his or her seat is automatic
after 30
days. Neither the proviso in subsection 3(1) nor subsection 3(2)
applied in this case so the plaintiff automatically lost his seat
on 19 August
2002.
The proviso of subsection
3(1) does not apply because no extension was ever sought from the speaker. Nor
was one granted.
Subsection 3(2)
does not apply because neither the conviction nor the sentence had been set
aside within 30 days of his conviction.
The plaintiff well after the 30 days
elapsed, has been pardoned. It is clear from the wording of subsection 3(2) that
if a member's
seat has become vacant under subsection 3(1), then, even if his
conviction or sentence is subsequently set aside, his seat in Parliament
is not
restored.
The same must be the
case with a Presidential pardon. As the pardon was granted after the plaintiff
had lost his seat in Parliament
the granting of the pardon cannot reinstate it.
On the reasoning in Foster's case, the conviction has not been set aside so even
if it had been granted prior to the plaintiff's seat being vacated, that alone
would not have been sufficient for the seat not to
have been automatically
vacated. If the pardon had been granted prior to the vacating of his seat the
court would have had to decide
whether the pardon amounted to the setting of
aside of the sentence. This is not the case here. If it did then his seat would
not
have been vacated. However, as the pardon came after the seat was vacated
the pardon, even if it is seen as setting aside the sentence,
it was too late
his seat had been vacated and could not be restored by the
pardon.
The plaintiff as a result
of his conviction and sentence automatically lost his seat in Parliament on 19
August 2002. The pardon he
was granted on 13 November 2002 did not re-instate
his seat in Parliament. The Act does not provide any mechanism for a member to
have his or her seat restored once it has been vacated under Section 3. Section
3 is self-executing and once a seat has become vacant
under it the seat cannot
be restored. A member who has lost his or her seat under Section 3 of the Act
must be re-elected to Parliament
if he or she wishes to take a seat in
Parliament again. The effect of conviction is the imprisonment. As a result of
imprisonment
for three years the plaintiff lost his Parliamentary seat pursuant
to Section 3 of the Act.
The
declarations sought by the plaintiff are refused. The defendant is entitled to
the costs of the proceedings against the
plaintiff.
My
answers to the questions posed are as
follows:
1. Answer to question
1:
No. The Presidential pardon is a full or complete pardon but only from the date of the pardon. The Presidential pardon granted to the plaintiff on 13 November 2002 pardons the plaintiff of his un-served part of his sentence which starts on 14 November 2002. The pardon has no retroactive effect. There is no power to pardon the conviction of a person under Article 38 of the Constitution.
2.
Answer to question 2:
The way the question is framed is too general. It does not warrant a specific answer. In the practical context of the present case, there is no effect of the Presidential pardon on the provisions of the Members of Parliament (Vacation of Seats) Act [CAP. 174] as they relate to the plaintiff. The plaintiff well after the 30 days elapsed, has been pardoned on 14 November 2002, whereas Section 3(1) of the Act [CAP. 174] operates and affects the plaintiff by the loss of his parliamentary seat as at 19 August 2002.
3.
Answer to question 3 is:
No. The plaintiff does not remain a member of Parliament. The plaintiff has lost his Parliamentary seat on 19 August 2002 by operation of Section 3 of the Act [CAP. 174]. His Parliamentary seat is not restored by virtue of him being pardon by the President of the Republic of Vanuatu under Article 38 of the Constitution.
The
Court makes the following
ORDERS:
1. THAT, the declaration
sought in point 1 of the Summons is
refused.
2. THAT, the declaration
sought in point 2 of the Summons is
refused.
3. THAT, the costs of the
action are awarded in favour of the defendant against the plaintiff and they are
determined at 160,000 Vatu.
4.
THAT, the plaintiff agrees to pay the total amount of 160,000 Vatu by three (3)
instalments as set out below:-
(a) the plaintiff shall pay the first instalment of 50,000 Vatu by 28 February, 2003; and
(b) the plaintiff shall pay the second instalment of 50,000 Vatu by 31 March, 2003; and
(c) the plaintiff shall pay the third instalment of 60,000 Vatu by 30 April, 2003.
DATED at PORT-VILA this 13th DAY of FEBRUARY 2003
BY THE COURT
Vincent
LUNABEK
Chief
Justice
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/vu/cases/VUSC/2003/126.html