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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
CIVIL CASE No. 90 of 2004
BETWEEN:
THE
GOVERNMENT OF
VANUATU
Claimant
AND:
ALFRED
MASENG NALO
First
Respondent
AND:
THE
ELECTORAL COMMISSION
Second
Respondent
Coram: Chief Justice
Lunabek
Counsel: Messrs Dudley Aru
& Fredrick Loughman for the
claimant
Mr. Bill Bani for the first
respondent
Mr. Michael Edwards for the
second respondent
JUDGMENT
1. Introduction
Before
me is a claim for Judicial Review. The claimant is the Government of Vanuatu.
The first respondent is the elected President
of the Republic of Vanuatu, His
Excellency Alfred Maseng Nalo. The second respondent is the Electoral Commission
who is submitted
itself to the jurisdiction of the Court and bound by any Order
of the Court and as such is excused from
attendance.
2. Relief
sought
The claimant claims for the
following Orders:
1. A declaration that the first defendant was not eligible to stand for election to the position of President of the Republic of Vanuatu;
2. An Order quashing the first defendant’s appointment as President of the Republic of Vanuatu;
3. A declaration that the Office of the President is vacant.
3. The
grounds of the claim
The grounds
of the claims are set out with the claim. A sworn statement was filed by the
Public Prosecutor, Nicholas Mirou, on
27th
April 2004 in support of the
claim.
The claimant’s case
is that the first respondent was ineligible to stand for election of the
position of President of the Republic
because he did not meet the requirements
of Article 35 of the Constitution and Section 24(1)(b) of the Representation of
the People
Act [CAP.
146].
4. The
response
The first respondent does
not admit that he did not meet the requirements of Article 35 of the
Constitution as well as Section 24(1)(b)
of the Representation of the People Act
[CAP. 146].
He, therefore, invites
the Court to make a ruling that:
1. For purposes of Section 24(1)(b) of [CAP. 146], Mr. Alfred Maseng Nalo was eligible to stand for election to the position of President of the Republic of Vanuatu.
2. For purposes of Section 24(1)(b) [CAP. 146] a person can be elected to the position of President of the Republic of Vanuatu despite having a suspended sentence but that suspended sentence must be of a term or terms of imprisonment which had already ended.
3. That the claimant’s claim be dismissed in its entirety with costs against the claimant.
The
first respondent files a sworn statement on 3 May 2004 in support of his
defence.
5. The
issue
The critical issue for the
determination by the Court is whether or not the first respondent was eligible
for election as President
of the Republic of Vanuatu held in April
2004.
6. The
facts
The factual circumstances
leading up to this challenge are not in dispute. They are briefly summarized as
follows:
On 3 April 2003 the first
respondent was convicted of two Counts of aiding and abetting misappropriation
under Sections 30 and 125(b)
of the Penal Code [CAP. 135] and one count of
receiving property dishonestly under Section 131 of the Penal Code Act [CAP.
135]. He was sentenced to a total of 4 months imprisonment. However, the
sentence of imprisonment was suspended for a period
of 2 years from 3 April 2003
pursuant to the suspension of sentences Act [CAP.
67].
On 24 March 2004, the term of
Office of His Excellency President Bani was completed and a vacancy in the
Office of the President arose.
On
26 March 2004, a Writ for Election of the President was then
issued.
On 30 March 2004, the
first respondent was nominated to stand for
election.
On 31 March 2004, a
nomination paper in his favour was presented to the second respondent, the
Electoral Commission. The second respondent
accepted the first
respondent’s nomination and presented him to the Electoral College as a
valid candidate.
On 12 April 2004,
the first respondent attained the necessary number of votes from the Electoral
College to win the election and on
that date was sworn in as the President of
the
Republic.
7. The
relevant legal
requirements
Article 35 of the
Constitution states:
“Any indigenous Vanuatu citizens qualified to be elected to Parliament shall be eligible for election as President of the Republic.”
For
a person to be eligible to stand for election as a Member of Parliament, Section
24(1) of the Representation of the People Act
[CAP. 146] provides as
follows:
“24. (1) Subject to Section 23 a person shall be eligible to stand as a candidate for election to Parliament if he-
(a) is not disqualified from voting;
(b) has not received a sentence including a suspended sentence of a term or terms of imprisonment which has not ended; (Emphasis added)
(c) is not an undischarged bankrupt;
(d) has attained 25 years of age; and
(e) is a citizen.”
Section
24(1)(b) is the relevant paragraph for consideration in the present
case.
The suspension of sentences
are provided under the Suspension of Sentences Act [CAP. 67]. Section 1 is the
relevant section and it provides as follows:
“1. The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions-
(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him., on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years;
(b) if, at the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of any further offence against any Act, regulation, rule or order, the sentence shall be deemed to be annulled;
(c) if before the end of such period, the person the execution of whose sentence has been suspended in accordance with this section is further convicted of any offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;
(d) the court shall, when ordering the suspension of the execution of the sentence, explain clearly to the person sentenced the nature of the order and shall ascertain that the has understood its meaning.”
8. The
arguments and submissions
It is
submitted on behalf of the claimant that by being subject to a suspended
sentence at the time of the election, the first respondent
did not meet the
requirements of Section 24(1)(b) of the Representation of People Act [CA[.146]
and was not qualified to stand for
election to Parliament and hence the
Presidency.
It is, therefore,
submitted for the claimant that because the first respondent’s sentences
were suspended for two years, he
is disqualified under Section 24(1)(b) of the
Representation of the People Act [CAP. 146] as he has received suspended
sentences
of imprisonment totalling four months that have not ended. The
sentences will only end for the purposes of Section 24(1)(b) when
either:
1. The two years have expired for which the sentence has been suspended, i.e. on 3 April 2005, under Section 1(b) of the Suspension of Sentences Act, or
2. After he has served the term of imprisonment if required to do so under Section 1(c) of the Suspension of Sentences Act.
In
response, it is submitted on behalf of the first respondent that the effect of a
suspension is that the execution of a term or
terms of imprisonment remains the
same but only its execution is stayed. It is also said for the first respondent
that the Suspension of Sentences Act does not use the words “sentence of a
term or terms of imprisonment which has not ended”. Instead, it uses
“suspension
of the execution of the
sentence”.
It is, therefore,
submitted that Section 24(1)(b) of the Representation of the People Act [CAP.
146] only applies to a candidate “whose
term or terms of imprisonment has
not ended” irrespective of whether it was a sentence or suspended
sentence.
It is further said for
the first respondent that his 4 months’ terms of imprisonment ended on 3
August 2003 as a result of which
the first respondent was eligible to be
nominated for election to the post of
President.
It is finally submitted
for the first respondent that for the purposes of Section 24(1)(b), when the
first respondent applied for
the position of President on 31 March 2004, he was
not under a suspended sentence of terms of imprisonment which has not ended
because
his 4 months’ terms of imprisonment had already ended on 3 August,
2003.
9. The
application of the law
Applying
the law to the fact of this case, the submissions made on behalf of the first
respondent cannot stand and must be rejected
as they represent a misapprehension
of the purpose and effect of the suspension of sentences scheme under the
Suspension of Sentences Act [CAP. 67]. Further the provisions of Article 35 of
the Constitution and Section 24(1)(b) of the Representation of the People Act
are clear.
Section 1 of the
Suspension of the Sentences Act [CAP. 67] is also clear. There is no ambiguity
nor uncertainty warranting for construction
or
interpretation.
Section 1 of the
Suspension of Sentences Act empowers the Court to suspend the execution of any
sentence imposed for an offence against any Act, regulation and set out the
conditions
in paragraphs (a), (b), (c) & (d) and a period of suspension of
the sentence to be fixed by the
Court.
Section 1 (a) of the Act is
the relevant paragraph to comprehend the rational of the suspension of the
sentences mechanism for the
purpose of this
case.
Section 1
states:
“1. The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions-
(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him., on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years;”
Under
Section 1 of the Suspension of the Sentences Act [CAP. 67], the first respondent
was sentenced to 4 months imprisonment. That
sentence was then suspended for 2
years from 3 April 2003, is still alive and will come to an end on 3 April 2005.
It is the execution
of the sentence of 4 months imprisonment that has been
suspended for the period of 2 years commencing from 3 April 2003. The sentence
of 4 months imprisonment is yet to be executed if required to do so under
Section 1(c) of the Act [CAP. 67]. I accordingly accept
the submissions made on
behalf of the claimant.
By
perusing and considering the language of Article 35 of the Constitution, and
Section 24(1)(b) of the Representation of the People
Act [CAP. 146], the first
respondent is not eligible to stand for the election to the position of
President of the Republic of Vanuatu
on 31 March 2004 as he has received a
sentence of 4 months imprisonment which was suspended for a period of 2 years
from 3 April
2003. That suspended sentence “has not yet
ended”.
The first respondent
was not eligible for election of President of Vanuatu pursuant to Section
24(1)(b) of the Representation of People
Act [CAP.
146].
On the basis of the above
considerations, the judgment must be issued in favour of the claimant. Orders
and Directions sought by the
claimant must be granted accordingly. Orders and
Declaration sought by the first respondent are refused. They have no basis in
law.
10. ORDERS
The
Court makes the following
ORDERS AND
DECLARATIONS:
1. The first respondent was not eligible to stand for election to the position of President of the Republic of Vanuatu.
2. The first respondent’s appointment as President of the Republic of Vanuatu is quashed.
3. The Office of the President is now declared vacant.
4. There is no Order as to costs.
Dated
at Port-Vila this
7th
day of May 2004
BY THE COURT
Vincent
LUNABEK
Chief
Justice
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