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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PMB 9081
Port Vila
Vanuatu
PUBLIC REPORT
ON THE
ORDINARY PASSPORTS
NUMBERED
A004302 TO A004305
24 February 2004
8332/2004/03
TABLE OF CONTENTS
SUMMARY
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES
PUBLIC REPORT
ON THE
ORDINARY PASSPORTS
NUMBERED A004302 TO A004305
The Office of the Ombudsman is publishing this report concerning 4 ordinary passports (A004302, A004303, A004304, and A004305) which were purposely issued to Mr Noel Fainalave, who was at that time the Office Supervisor in the Office of the Prime Minister, to be presented before the Council of Ministers Meeting on the 04th day of March 1997, where the Citizenship Bill was to be discussed. The Ombudsman’s investigation revealed that on 04th March 1997, there was no Council of Minister’s meeting and the meeting that discussed the Citizenship (Amendment) Act Bill was held on 05 May 1997. In such instances, specimen passports should have been given but instead original passports were given and Mr Fainalave did not sign for the passports when he collected them.
Ordinary passport A004303 was issued to a non-citizen named LIAO HAO WEN who was by profession a student and claimed to be a Ni-Vanuatu. This passport was stamped with the Prime Minister’s Office stamp and the signature on this passport was not that of the Principal Immigration Officer, Mr John Mark Bell.
It was revealed in the investigation that three passports were sent by Mr Noel Tabiusu, former Secretary General to the Council of Ministers, and Late Kepoue Manwo, former Chairman of the Citizenship Commission, to Taiwan to a man named Sunny and his two children. Mr Fainalave stated that Mr Tabiusu and Mr Manwo received an amount of 1.5 million vatu and he came across them when they were dividing the money between themselves. Mr Fainalave was given VT50,000 and begged not to expose them. These three passports are yet to be recovered.
The Ombudsman made the following findings in this report:
- That Mr Noel Fainalave has breached s.13(b) of the Passport Act (CAP 108) by making a false representation on 04 March 1997 that Mr Noel Tabiusu had sent him to collect the 4 passports without showing any authorisation by Mr Tabiusu.
- That Late Kepoue Manwo has violated s.13(d) of the Passport Act (CAP 108) when he improperly took back passport number A004303 to the Immigration Office without a citizenship certificate and asked the Immigration Officer Sgt. Salali to put an Immigration Stamp on it when it already had the Prime Minister’s office stamp on it.
- That Messrs John Mark Bell, Noel Tabiusu and Late Kepoue Manwo has breached the Leadership Code in a way that their conduct places their integrity into question and also respect and confidence and integrity of the government of the Republic of Vanuatu.
- That Mr John Mark Bell improperly issued the passports to Mr Fainalave.
- That Mr Fainalave, Mr Tabiusu and Late Manwo has violated s.131 of the Penal Code (CAP 135) by receiving and obtaining monies dishonestly.
Following the above findings, the Ombudsman makes the following recommendations:
- That the Public prosecutor consider laying criminal charges against Mr Noel Tabiusu and Mr Noel Fainalave for obtaining and receiving monies or property dishonestly.
- That the Prime Minister takes note of the actions of Mr Bell,Mr Tabiusu and Late Manwo and Mr Faionalave and warn the political parties represented in parliament, the Public Service Commission and any other Commissions established for recruiting purposes, and any other ministers who by law is vested with power to recruit or appoint a person to any statutory Boards against appointing these people to leadership positions.
- That the Principal Immigration Officer takes stricter measures in issuing of passports to the public and record every details of passports that were issued.
1.1 The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. This includes the Prime Minister's Office and the Immigration Department. I can also look into defects in laws or administrative practices, including the improper issue of ordinary passports. (This report comes after investigations were carried out under Ombudsman Act No.14 of 1995, now repealed. The report is issued after further information and confirmation were received by the Ombudsman).
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act.
2.2 The scope of this report is concerned with whether John Mark Bell as Senior Police Officer and Principal Immigration Officer investigated the missing passports in a prompt manner and in accordance with normal police procedures and the Passport Act Cap 108. This report tables the prospect that passports A004302 through A004305 were improperly issued by the Immigration Office. In this regard the following additional persons' conduct is examined:
(a) Mr Noel Tabiusu, former Secretary General to the Council of Ministers;
(b) Mr Noel Faionalave, former Office Supervisor in the Prime Minister's Office;
(c) Late Mr Manwo Kepoue, Chairman of the Citizenship Commission. Mr Manwo passed away on 31st August 2003.
2.3 This Office collected information and documents by informal request, summons, letters, interviews and research.
3. RELEVANT LAWS, REGULATIONS AND RULES
3.1 CONSTITUTION OF THE REPUBLIC OF VANUATU
CONDUCT OF LEADERS
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 sub-article (1).
DEFINITION OF A LEADER
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.
THE PASSPORT ACT [CAP108]
6.1 Section 11 of the Passports Act gives power to the Principal Passport Officer to take possession of any passport which he reasonably believes is in the wrongful possession of a person or has been issued or renewed by means of any willfully false or misleading statement. A person having in his possession or control a passport, to which subsection (1) applies shall on demand deliver it without unreasonable delay to the Principal Passport Officer.
6.2 Section 13 of the Passport Act states that:
Any person who willfully-
(b) makes any false statement for the obtaining of a passport, certificate of identify or travel document.;
(d) knowingly and unlawfully makes any alteration, addition, deletion or endorsement in any passport, certificate of identity or travel document;
is guilty of an offence and on conviction shall be liable to imprisonment for 5 years or to a fine of Vt100,000 or to both such fine and imprisonment.
PENAL CODE ACT [CAP 135]
Misappropriation
s.123 A person commits misappropriation of property who destroys, wastes, or converts property capable of being taken which has been entrusted to him for custody, return, accounting or any particular manner of dealing.
False Pretences
s.124 Every person obtains by false pretences who, by a false pretence, that is to say, any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact and which the person making it knows to be false, or does not believe to be true with intent to defraud, either directly or indirectly, obtains possession of or title to anything capable of being stolen or procures anything capable of being delivered to any person other than himself.
Prohibition of Theft, Misappropriation and False Pretence
s.125 No person shall cause loss to another-
(a) by theft;
(b) by misappropriation or
(c) by false pretences
Penalty: Imprisonment for 12 years
Receiving property dishonestly obtained
s.131 No person shall receive anything obtained by any offence, or by any act wherever committed which, if committed with the Republic would constitute an offence, knowing that thing to have been dishonestly obtained.
POLICE ACT [CAP 105]
s.35 (3) It shall be the duty of every member to promptly ... collect and communicate intelligence affecting the public peace...(and) detect and bring offenders to justice.
(emphasis added)
4.1 On 4 March 1997, Mr. Noel Faionalave, the former Office Supervisor in the Prime Minister's Office, telephoned the former Principal
Immigration Officer (PIO),
Mr. John Mark Bell about 4 ordinary passports. Mr. Faionalave asked to pick up these passports for a Council of Ministers' meeting
to be held on that day 4 March 1997.
4.2 Mr. Bell asked Sergeant Salali, Passport Officer, to get the passports ready to be handed to Mr Faionalave. These passports were numbered A004302 to A004305. This conversation and handing over of passports to Mr. Bell was witnessed by Passport Officer, Mr. Mathias Lawac. The Immigration Officers' statements are annexed "1" and "2". A copy of the passports register concerning these passports is annexed as "3".
4.3 Mr. Bell gave the four passports to Mr. Faionalave on that same day. Mr. Bell did not ask Mr. Faionalave to sign for the passports. Mr. Bell stated to the Ombudsman that he should have given specimen passports rather than original passports. However, at that time he did not have any specimen. A copy of Mr. Bell's letter dated 17 September 1997 is annexed "4".
4.4 According to Mr. Faionalave, he collected the passports for a Council of Ministers meeting where the Citizenship Bill was to be discussed. Records from the Council of Ministers' meeting show that there was no meeting on 4 March 1997. The meeting that discussed the Citizenship (Amendment) Act Bill was held on 5 May 1997. See copy of letter written by Noel Tabiusu, former Secretary General to the Council of Ministers annexed "5".
4.5 In a letter to Mr. Willie Jimmy dated 2 September 1997, Mr Faionalave stated that "Honourable Minister, for your information, in March, Kepoue Manwo and Noel Tabiusu had sent three passports to Taiwan to a man named Sunny and his two children. I found them out when they received an amount of Vt1.5 million. I came across them as they were dividing up the money. Kepoue said to me "Brother, do not reveal to anyone what you have seen. I beg you not to expose Noel Tabiusu and myself. He handed me Vt50,000. I told him nothing will be revealed, however, the blame will be on the two of them if anything was discovered". His letter is marked "6".
4.6 In a letter dated 10 July 1997 Mr Bell wrote to Mr Serge Vohor, former Prime Minister stating that the passports had not been returned. The letter is annexed "7".
4.7 One of the passports (A004303) was issued to a person claiming to be a eleven year old Ni-Vanuatu by the name of Liao Hao Wen. This passport was stamped with the Prime Minister's Office stamp. Mr Bell in his letter annexed "7" stated that the signature on that passport was not his signature. A copy of the passport issued to Mr Wen is annexed "8".
4.8 Towards the end of May 1997, passport A004303 was apparently taken back to the Immigration Office by Mr. Manwo. Sgt. Salali attended to Mr. Manwo. Sgt. Salali recognised the passport as one that had been given to Mr. Faionalave. "On questioning Mr Manwo about the passport fees, he pulled out his purse and handed me Vt 3,000. I then enquired about Liao Hao Wen's citizenship certificate and Kepoue Manwo replied that he would fetch it". See Sgt. Salali's statement annexed "9".
4.9 Some time between 1 July and 15 July 1997 Mr Bell referred passport A004303 to the Police Department. From 4 March 1997 until that time nothing was done to retrieve those passports. The matter was then referred to the Police Department for investigation.
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also a working paper was issued and re-issued prior to this public report to give another opportunity to respond. Below is a summary of the responses.
5.2 Hon. Willie Jimmy Tapangararua, Leader of Opposition advised the Ombudsman’s Office that he has nothing further helpful to say on this matter.
5.3 Mr. Willie Alick Pakoa stated that he was the officer heading the passport investigation at that time and although he had left the Police some 4 years ago, he recalled having interviewed all the leaders mentioned and implicated in the Ombudsman’s Working Paper and have applied for search warrants and searched their residences including the citizenship Office located at the Office of the Prime Minister.
Mr. Pakoa recalled that he has arrested Mr. Noel Faionalave and interviewed him about the allegation of seeing Mr. Kepue Manwo and Mr. Noel Tapiusu sharing the proceeds of the sale of the three (3) passports between them. Their residences were also searched according to law during the investigation.
Because John Mark Bell was a senior officer of the Police Force, Mr. Pakoa as a Junior officer heading the Passport investigation was restricted under the Police Act to approach him as a suspect. Nevertheless, he has approached the office of the Police Commissioner, Mr Peter Bong to appoint a senior officer to interrogate Mr. Bell.
5.4 Mr. Kepue Manwo stated to the Ombudsman that he has nothing more to say on this matter as he has already told the Ombudsman everything in an interview sometime in 1998-.
5.5 On 23 October 2003, Mr. John Mark Bell came to the Ombudsman’s office to state his response to the working paper. He stated that he did not aid or abet Mr Faionalave in authorizing the release of the passports. He did not know Mr. Faionalave’s intention when he went to pick up the passports. He only knew that there was a request from the Prime Minister’s office asking for the passports for a Council of Ministers meeting. This was an order he had to obey towards his superior. At the time of the pick-up of the passports, there were no specimens available which was usually used for such purposes so the actual passports were released in the hope that they would be returned. He stated that he was persuaded to release the actual passports and not the specimens of the actual passports.
He did not know how the Police investigation went on the matter as he was selected to be in the contingent of Peace Monitoring Group to Bouganville. He stated that he did not persuade his superiors to include him in the contingent. He said this was not an intentional way for him to escape any Police investigation regarding the passports as the Police did not investigate him on the matter.
5.6 In a letter dated 31 December 2003, the Principal Immigration Officer, Mr Vake Rakau stated to the Ombudsman that the passports in question have not yet been recovered. Please see annex "10".
Finding 1: Prima facie violation of Section 13(b) of the Passport Act CAP.108 by Mr Noel Faionalave
6.1 Mr Faionalave made a false representation on 4 March 1997 that he was sent by Mr Noel Tabiusu to collect the four passports without showing any authorization by Mr Tabiusu. Mr Faionalave may be liable for prosecution under section 13 of the Passport Act, with the penalty of 5 years imprisonment or a fine of Vt100,000 or both.
Finding 2: Prima facie violation of Section 13(d) of the Passport Act CAP.108 by Kepoue Manwo
6.2 Mr Manwo improperly took back passport number A004303 to the Immigration Office without a citizenship certificate and asked the Immigration officer Sgt. Salali to put the Immigration stamp on it. The passport already had the Prime Minister's office stamp on it. Mr Manwo was acting improperly in that situation and may be liable for prosecution under s. 13(d) of the Passport Act, the penalty of which is 5 years imprisonment or a fine of Vt100,000 or both.
Finding 3: Prima facie violation of Section 125 [a] of the Penal Code Act CAP.135 (theft) by Mr Noel Faionalave and Mr. Manwo,
6.3 Mr Manwo improperly took away 4 Vanuatu passports without lawful authority from Mr. Bell and failed to return these passports. He received the passports from Mr. Faionalave who had collected them from Mr Bell. for the purpose of a Council of Minister's meeting. Mr Tabiusu said he did not receive the passports and there was no Council of Ministers' meeting that day. Mr. Faionalave and Mr. Manwo was acting improperly in that situation and may be liable for prosecution under s. 125 of the Penal Code Act.
Finding 4: Prima facie violation of Section 131 of the Penal Code Act, CAP 135 (Receiving property dishonestly obtained) by Messrs Tabiusu, Manwo and Faionalave
Mr Faionalave, on his own admission, stated that he received Vt50,000 from Messrs Manwo and Tabiusu and the money came from a Mr Sunny of Taiwan for the 3 passports that were missing, Messrs Manwo and Tabiusu were seen in possession of a large sum of money by Mr Faionalave. Messrs Faionalave, Manwo and Tabiusu could be liable for prosecution under Section 131. They could also be charged with false pretense under section 125(c) of the Penal Code Act Cap 135.
Finding 5: Prima facie violation of section 125(c) of the penal Code Act CAP 135 [false pretences] by Mr Noel Faionalave
Mr Faionalave had lied to Mr Bell that he was instructed by Mr Vohor to get passports for the purpose of a Council of Ministers meeting on amendment to the Bill for the Citizenship Act. Upon receiving the passports he gave them to Mr Manwo. One of the four passports given was later brought back to the Immigration Office by Mr. Manwo with a stamp from the office of the prime Minister and purported to be signed by Mr Faionalave.
Finding 6: Improper issue of passports to Mr Noel Faionalave by Mr John Mark Bell
6.6 Mr Bell, the former Principal Passport Officer, improperly issued 4 Vanuatu passports to Mr. Faionalave. Mr. Bell did not confirm with Mr. Tabiusu the purpose for the request for the passports before releasing the same. In addition, actual passports were given instead of the specimens. He did not ask Mr. Faionalave to sign for the passports. Mr Bell's conduct was based on an error of fact and blatantly unreasonable.
Finding 7: Omission by Mr Bell to exercise powers and duty under Section 11 of the Passport Act and Section 35(3) of the Police Act Cap 105
6.7 Mr Bell failed to exercise his powers under s.11 of the Passport Act to take possession of the 4 missing passports. From 4 March 1997 to July 1997 Mr Bell did not do anything about the 4 missing passports. Mr Bell failed to perform his police duty to promptly act and communicate information concerning the four missing passports according to s.35(3) of the Police Act. For this omission Mr Bell's conduct was blatantly unreasonable.
Finding 8: Police Department's failure to discipline or investigate Mr Bell's conduct was blatantly unreasonable
6.8 The Police Department did not take any disciplinary action against Mr. Bell even when they were aware of the missing passports. Instead he was sent with the Peace Monitoring Group to Bougainville. In doing so, investigations into the four missing passports and other passport matters were delayed because the Police could not obtain his statement.
Finding 9: Breach of the Leadership Code by Messrs John Mark Bell, Noel Tabiusu and Kepoue Manwo
6.9 The above persons were leaders under the Constitution in 1997. By conducting themselves in this manner they have breached Article 66 of the constitution in that they used their Office for personal gains. Their conduct places their integrity into question and endangers respect for and confidence in the integrity of the government of the Republic of Vanuatu.
7.1 The Ombudsman makes the following recommendations:
Recommendation 1: That the Public Prosecutor consider laying criminal charges against Mr Noel Tapiusu, and Mr Noel Faionalave for obtaining moneys dishonestly.
Recommendation 2: That the Prime Minister takes note of the actions of Mr. Bell, Mr.Tabiusu, Mr Manwo and Faionalave and warn leaders of political parties represented in Parliament, the Public Service Commission and any other Commissions established for recruiting purposes any other ministers who by law is vested with power to recruit or appoint a person to any statutory Boards against appointing these people to leadership positions
Recommendation 3: That the Principal Immigration Officer takes stricter measures in issuing of passports to the public and record every details of passports that were issued.
Dated the 24th day of February 2004.
Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU
1. Statement of Sgt Salali Teitoka dated 17/09/97.
2. Statement of Mr Lawac Mathias dated 17/09/97.
3. Photocopy of Passport Register Book.
4. A copy of Mr Bell's letter dated 17 September 1997.
5. A copy of Mr Tabiusu's letter dated 6th May 1997.
6. A copy of Mr Faiolanave's letter dated 02/09/97.
7. A copy of Mr Bell's letter to Mr Vohor dated 10/07/97.
8. A copy of Mr Wen's passport No.A004303.
9. Sgt Salali's second statement dated 17/09/97.
10. Copy of a letter from the Principal Immigration Officer, Mr Vake Rakau dated 30/12/03
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