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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PUBLIC REPORT ON
INTERIM MINISTER VINCENT BOULEKONE’S PURPORTED ATTEMPT TO TRANSFER OWNERSHIP OF VANUATU’S ASSETS TO CVDC HOLDINGS SA ('CVDC')
24 March 1998
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TABLE OF CONTENTS
-1-Ministerial Order from Mr Boulekone dated 23.12.97
-2-Attorney General’s advice of 9.1.98
-3-Letter of accountant from Mauritius of 3.3.98
-A-Mr Boulekone’s reply in French of 16.3.98
-B-Mr Boulekone’s reply in English of 16.3.98
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For... grievous wolves shall enter among you, not sparing the flock, also of your own selves shall men arise speaking perverse things to draw away disciples after them ...
Acts 20 v 29, 30.
This report tells of the danger which arises when a Minister who is a public servant forgets that he is a servant of the people who voted for him and begins to feel that he is almost a law into himself. Mr Boulekone’s letter answering my preliminary report is a classic example of confused thinking and the error of believing that Ministers are not bound by the rulings of the person who has been appointed to acquaint them with what the law permits, or does not permit them to do.
Mr Boulekone’s letter is a collection of his personal opinions and his habit of exaggerating the importance of the personal opinions above the law has brought him into trouble, and caused him to act illegally and foolishly, thereby placing in danger the assets of the people of Vanuatu. It is in the public interest to see that these wrong actions are nullified.
1 INTRODUCTION AND SCOPE OF ENQUIRY
1.1 In December 1997 I commenced an inquiry on my own initiative into interim Minister Vincent Boulekone’s purported attempt to transfer ownership of Vanuatu’s assets to CVDC Holdings SA ('CVDC') an entity understood to be incorporated in Mauritius, an island country and tax haven in the Indian Ocean. I did this because:
(a) contrary to what is stated in the Minister’s order, the Legal Department of the Ombudsman’s Office advised me that the transfer was not legally possible.
(b) I learnt that the Attorney General had also advised Minister Boulekone that the proposed transfer was not legally possible.
1.2 Further on Saturday 7 February 1998, the Vanuatu Weekly published a letter from Mr Thomas M Bayer in its letters to the editor section. In the letter Mr Bayer states that he too believes what the Minister did may not have been lawful. His letter contained an open request that the Ombudsman enquire into the matter. The matter was again raised in the public arena by the Trading Post editorial of 21 February 1998 as a matter of real public interest.
1.3 For a Minister to act contrary to legal advice given to him from the Government’s principal legal adviser is an obvious and fundamental breach of the Leadership Code. This is because it amounts to conduct that calls his integrity into question, demeans his office and may bring disrespect to the Vanuatu Government.
1.4 For the above reasons I determined to enquire into the matter to find out if in fact the Minister had acted contrary to the Attorney General’s advice and the legality of the Minister’s purported attempt to execute the transfer of Vanuatu’s assets as specified in his Ministerial order of 23 December 1997 (a copy of which is annexed as 1).
2 JURISDICTION
2.1 Article 67 of the Constitution defines Ministers as 'leaders' to whom the Leadership Code applies. Section 14(1)(d) of the Ombudsman Act No 14 of 1995 gives the Ombudsman jurisdiction to enquire into allegations of leadership misconduct. As such Minister Boulekone’s conduct in the purported transfer of assets under his 'order' falls within the Ombudsman’s jurisdiction.
3 PRELIMINARY REPORT
3.1 A preliminary report was given to Mr Boulekone on or about 27 February 1998. A French translation was also provided to Mr Boulekone on 4 March 1998. The response time was to be by end of the morning on Monday 9 March 1998. I met with Mr Boulekone in person on 5 March 1998 and reminded him of the time for a response. He was also advised that if he wished for more time he was able to apply for an extension of time.
3.2 The reason for the comparatively short time frame was due to:
(a) The brevity of the report and the fact that it addressed two key issues, refusal to follow the Attorney General’s advice and the legality of the order; and;
(b) I considered it important to have the matter in the public domain
3.3 The purpose of the preliminary report is to seek comments and submissions from those whose conduct is enquired into or those otherwise criticised. By circulating this report the Office of the Ombudsman’s discharges its constitutional obligation of granting 'the person or body complained of an opportunity to reply to the complaints made against them' (art 62(4) of the Constitution), and of the legal obligation as outlined in s 16(4) of Act.
3.4 On 9 March 1998 Mr Boulekone asked for an extension of time of one week. I granted him his request for an extension. On 16 March 1998 I received Mr Boulekone’s reply. His reply in French and a translation into English are attached as 'A' and 'B'. His reply is discussed in section 7 of this report and also some parts of the reply are mentioned and commented upon in sections 5 and 6. The reader is recommended to read the whole of Mr Boulekone’s reply.
4 FACTUAL BACKGROUND AND COMMENTARY
4.1 On 23 December 1997, then Finance Minister Vincent Boulekone purported to transfer the Vanuatu’s Government’s interest in the following to CVDC, also named The People of Vanuatu Trust.
4.2 Minister Boulekone purported to do this by a 'Ministerial order' passed by reference to certain laws. In the order it says that the Minister will own all this property on behalf of the people of Vanuatu for their sole benefit. In other words Mr Boulekone (as Finance Minister) was making himself the trustee of The People of Vanuatu Trust. He did this knowing that Parliament had been dissolved by the President and that the dissolution was still to be decided by the Vanuatu Court of Appeal. A copy of the order is annexed as 1. I note Mr Boulekone’s comment that pending the Appeal Court ruling:
We must remember that by agreement between the parties the appeal was suspensive, which meant that I was still then a Minister with full powers.
Notwithstanding this I am of the view that it was overly bold of Mr Boulekone to press ahead. Mr Boulekone must have known that it was possible that the Appeal Court could, as it in fact did, rule that Parliament was validly dissolved. Thus he ran the risk that any new elected government would seek to undo what the Ministerial order he had made in the period shortly before the General Election.
4.3 On 6 January 1998 the Court of Appeal held the President’s dissolution of Parliament was legal. This meant that Mr Boulekone role as Finance Minister was as a caretaker or interim Minister. It is a well known convention that caretaker or interim Governments or Ministers do not make substantial changes to the running of the country whilst holding an interim position awaiting a new election.
4.4 Sometime before 31 January 1998 Minister Boulekone authorised the publication in the Vanuatu Weekly notifying readers of his order. Mr Boulekone in his reply states I' ordered the publication of the Order as early as 23 December 1997.'
4.5 Transferring ownership of all of Vanuatu’s major assets to an offshore trust (CVDC is not registered in Vanuatu) headed by the Minister is a fundamental structural change to Vanuatu. Mr Boulekone nevertheless has continued with this transaction going as far to go on National Radio in the week of 14 February 1998 and have a large article taken out in the government owned newspaper, Vanuatu Weekly on 21 February 1998.
4.5 What Mr Boulekone did not tell the People of Vanuatu when he went on National Radio and in the Government newspaper was that the Attorney General had already told him very clearly that his order was 'unlawful'. The Attorney General told him this by letter dated 9 January 1998 over a month beforehand and before the advertisement appeared in the newspaper. A copy of the Attorney General’s is annexed as 2. In his letter the exact words of the Attorney General included:
The reason I requested the media not to publish the Order was to allow me the opportunity of firstly discussing the Order with you. I wished to do so principally to avoid embarrassment to yourself and to Government as in my opinion the order was unlawful and unenforceable.
(my emphasis added)
4.6 Mr Boulekone ignored the very clear advice of the highest legal officer in Vanuatu and the principal adviser to the Government.
4.7 Nothing is known about CVDC. A Port Vila accounting firm attempted to obtain information from an agent in Mauritius. Due to the secrecy laws in Mauritius it is impossible to find out any information. A true copy of the response to the Port Vila accounting firm is annexed as 3. Despite this, Mr Boulekone in his reply stated:
'I think that it must be recognised that the situation I have created is more transparent and healthier.'
5 RELEVANT LAWS & CONCLUSIONS OF LAW AND FACT
5.1 In this section the facts identified in section 4 above are considered by reference to the relevant laws. My preliminary conclusions on the requirements of the law for appointment of public servants appear in this section. Based on these conclusions I also include my preliminary findings of fact.
5.2 In Minister Boulekone’s order, the Minister purports to gain authority to transfer Vanuatu’s assets based on 5 things. These are:
5.3 When each of these things are considered in turn and examined it is plain and obvious that none of them give the Finance Minister transfer Vanuatu’s assets. These are now addressed in turn below.
Preamble to the Constitution
5.4 The preamble to Vanuatu’s Constitution says:
WE the people of Vanuatu, PROUD of our struggle for freedom,
DETERMINED to safeguard the achievements of this struggle,
CHERISHING our ethnic, linguistic and cultural diversity,
MINDFUL at the same time of our common destiny,
HEREBY proclaim the establishment of the united and free Republic of Vanuatu founded on traditional Melanesian values, faith in God, and Christian principles, AND for this purpose give ourselves this Constitution.
5.5 Nowhere in the above does it say the Finance Minister has the power to transfer Vanuatu’s assets to a different ownership. In fact nowhere in the whole Constitution is anything of the sort stated.
5.6 The reference and quoting of the Preamble to the Constitution is just plain nonsense. In reply, Mr Boulekone states: 'There is nothing wrong nor illegal about this. If Mrs Marie-Noëlle Ferrieux Patterson considers that quoting the Constitution is nonsense, it is her own business. Yet it seems to me that it is the founding law of our Republic from which stems the legitimacy of what we are doing.' Mr Boulekone misses the obvious point and that is that the Preamble to the Constitution does not authorise transfer of ownership of the nation’s assets to another entity by the Finance Minister in the way he has done by his Ministerial order.
The Public Finance Act
5.7 The Finance Act is concerned with the appropriation, expenditure and control of money spent from the Revenue Fund in the running of the Republic of Vanuatu. In particular section 2(1) of the Finance Act states:
The Minister shall so supervise the expenditure and finances of the Government as to ensure that a full account thereof is made to Parliament and that control by Parliament is upheld and for such purpose, shall subject, to the provisions of this Act, have the management of the Revenue Fund and the supervision, control and direction of all matters relating to the financial affairs of the Government which are not assigned to any other person.
(my emphasis added)
5.8 Probably included in the phrase 'all matters' that appears in section 2(1) is 'public stores' which is defined in section 1 to mean:
all things of whatsoever nature, the property of or in possession of or under the control of the Government
5.9 This definition section on its face could include shares in companies although this is open to question[1]. This is relevant because, with the exception of two, all of the entities in which the Minister attempted to transfer ownership are all companies or corporate bodies which have their own legislation or in the case of the utilities are likely to have shareholder agreements. Thus under section 2(1) the Finance Minister is to supervise and manage the use of these shares with the control of Parliament being upheld.
5.10 Presently, the Finance Minister by his order has taken control away from Parliament over the shares in all the companies and given it to himself. Indeed the Minister has ignored Parliament as he has ignored the Attorney General’s advice. This is contrary to section 2(1) of the Finance Act. The matter must be put to Parliament. The Minister has no legal control over these shares by himself.
5.11 This analysis of management of the Government’s portfolio of shares is confirmed by section 7(5) of the Act. It states:
The monies invested in shares held by the Government in the bodies set out in Schedule 1 at the time of the coming into force of this Act shall be considered properly invested for the purposes of this section.
The bodies in schedule 1 are Compagnie de Navigation Inter-Iles and South Pacific Fishing Company.
5.12 What section 7(5) demonstrates is that Parliament had to approve by legislation the Government’s dealing in shares. Logically therefore any further investment or transfer of an investment in other shares would likewise have to be approved by Parliament through legislation.
5.13 What it appears that the Minister or those advising him must have considered as legal, was to use the regulation making power given in section 24(1) and in particular clause (d). This provides:
The Minister may by Order make regulations not inconsistent with provisions of this Act for carrying out the provisions hereof and without prejudice to the generality of this provision such regulations may provide for-
(d) the purchase, safe custody, issue or sale or other disposal or writing-off of public stores and other property of the Government and the proper accounting for and stocktaking of such stores and property.
(My emphasis)
5.14 The Minister’s order is presumably made under this section. However, the regulation making power can only be used in accordance the provisions of section 24(1). The emphasised part of the section is that regulations cannot be made that are inconsistent with other provisions of the Act.
5.15 It is plainly the case in my view that the Minister’s order is not only 'inconsistent with' but is also contrary to the most important provision of the Act; section 2(1), namely that the control of Parliament is to be upheld by the Minister. To suggest that the Finance Minister, without reference to Parliament, can transfer the major assets of Vanuatu to an offshore trust is a facile and preposterous proposition.
5.16 Additionally, a statutory order cannot conflict with other legislation. Legislation is higher law than a statutory order. The Attorney General pointed out this obvious point to Mr Boulekone in his letter. The Minister’s order cannot override, for example the National Bank of Vanuatu Act - yet, in my view, that is what the Minister is trying to do with his order.
Council of Ministers’ decision No 25/09/10/97 dated 25 September 1997
5.17 What the Council of Ministers decides is irrelevant if it does not follow the law. The Council of Ministers is not a law unto itself. The Council and the Ministers that make up the Council are subject to the law and cannot do anything unless it follows the Constitution or a law. This is exactly what article 39(1) of the Constitution says:
The executive power of the people of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law.
5.18 Since there is no law allowing the Finance Minister to transfer Vanuatu’s assets what the Council of Ministers may decide he can do is irrelevant. The Council of Ministers does not make law; that is the role of Parliament.
5.19 Again, therefore reference to the Council of Ministers’ decision is just plain nonsense.
An 'Order of Appointment of the Minister of Finance of 11 November 1997'
5.20 This document is merely and simply the document appointing one Hon Vincent Boulekone to be Finance Minister. It has nothing to do with the Finance Minister’s ability to transfer Vanuatu’s property.
Attorney General’s advice
5.21 Mr Boulekone’s 'Ministerial order' states that it is given 'Taking into consideration advices received from the Attorney General'. What this suggests on its face is that the Attorney General has given his blessing to what the Minister has done or at least confirmed that the order is proper and lawful.
5.22 In fact that impression is completely false. The reference to the Attorney General’s advice is misleading and deliberately so. The Attorney General told the Minister and his colleagues in writing very clearly that what was proposed was not lawful; indeed, that it was unlawful.
5.23 Any reasonable Minister with any common sense, sense of responsibility and integrity would follow the advice of the Attorney General. Therefore reference to the Attorney General’s advice is not only plain nonsense but also is deceptive and dishonest.
Other matters
5.24 Mr Boulekone’s 'Ministerial order' is illegal as well as being unlawful. This is because it contravenes other provisions of Vanuatu’s laws. One such example it contravenes, in addition to article 39(1), is the Companies Act as noted below.
5.25 Most of the assets of Vanuatu that are supposedly being transferred are the shares in a number of limited liability companies including Vanair, Air Vanuatu, Telecom Vanuatu Limited, UNELCO (Vanuatu) Limited, Vanuatu Abattoirs and Ifira Wharf Limited to name but a few. To transfer shares in a limited liability company in Vanuatu a company must follow the provisions of the Companies Act [Cap 191].
5.26 Sections 82 to 92 of the Companies Act set out the legal requirements for the transfer of shares. These sections provide the only method by which shares can be legally transferred. The Minister’s 'Ministerial Order' makes no reference to these provisions let alone complies with them. Therefore the so called 'automatic(ally) vesting into the ownership of CVDC Holdings SA' specified in article 1 of the order is illegal.
5.27 An obvious practical problem is that in some of these companies in which the Government holds shares, is that there are other shareholders who may not be very happy that their shares have been nationalised and then transferred offshore to another entity about which nothing is known.
Mr Boulekone will challenge the above analysis in Court
5.28 As will be seen from his reply Mr Boulekone cites some examples as to why he disagrees with the legal analysis stated above. He says at one point:
I am reserving my legal arguments for submission to the Court which is the only place where such a dispute may eventually be aired.
5.29 Mr Boulekone is free to do that. He may be proved right by the Court. No legal opinion or person expressing such an opinion is always right or infallible. One can observe that the sensible thing to have done if the Executive was to take the unusual step of involving the Supreme Court to have it before making the order not after.
5.30 Under the Constitution however the Ombudsman is required to make findings on amongst other things, the legality of conduct (refer article 63(3) set put below at paragraph 6.18). My enquiry originates from Mr Boulekone’s failure to follow the advice of the Attorney General.
5.31 My legal advice on the order itself did accord with that of the Attorney General. However, the enquiry is equally, if not more concerned, with Mr Boulekone’s approach in pressing ahead with such an important matter after the Attorney General told him it was not legal. My view is that such conduct was blatantly unreasonable in the circumstances.
5.32 As the Attorney General pointed out to Mr Boulekone on page 4 of his letter to him the Council of Ministers’ own procedure instructions prevents a Minister from signing an order until it is approved by the Attorney General. Paragraph (f) and (g) of Instructions On Procedure of Council of Ministers state:
(f) The Attorney-General should be consulted before a proposal to make an Order is submitted to the Prime Minister or the Council of Ministers;
(g) No Order may be signed until one copy is initialled by the Attorney-General. This is necessary to ensure that the Order complies with the law and is properly drafted. The Secretary to Council will require to see the initialled copy before he puts any draft Order before the Council or arranges for the publication of a signed Order which has not been through Council.
5.33 Mr Boulekone did not produce to the Ombudsman’s Office a copy of his order signed by Mr Bulu, the Attorney-General. This would have provided a very good answer to the preliminary report. As it is, the fact remains is that Mr Boulekone signed the order in breach of the Council of Ministers’ own Instructions.
6 MR BOULEKONE’S REPLY
Introductory observations
6.1 Mr Boulekone provided a reply. It is in French and was a reply to the preliminary report that I sent him both in French and English. A copy of the reply is attached as 'A'. The translation into English is attached as 'B'.
6.2 Mr Boulekone’s reply is very long, running to 18 pages. The reason for its great length is because Mr Boulekone makes many comments that have little to do with the facts, allegations and findings that were contained in the preliminary report Some of this is personal abuse directed to myself and others. I had to delete a full section of Mr Boulekone’s letter because it was defamatory to a private company which has nothing to do with the content of this report and my Office could have been sued for it. But my action should not prevent Mr Boulekone going public with his accusations and facing the consequences of them. It also contains statements that are political or philosophical in nature. Comments of these types are generally not relevant to a consideration of the essential facts.
6.3 On this occasion I consider that there is a wider purpose in attaching a copy of the whole of Mr Boulekone reply to this report. It serves the purpose of revealing how Mr Boulekone thinks and how he understands the role of a Minister of State. In my opinion it reveals an attitude of Mr Boulekone that a Minister is above the law and anyone who dares question, with the exception of the Supreme Court, is an inferior who must keep quiet.
6.4 In the case of the CVDC Trust Mr Boulekone cannot accept that a responsible leader should follow the advice of the Attorney General. As Mr Boulekone would have it, every time there is a legal doubt about a Council of Ministers proposal only the Supreme Court can express a legal opinion. On this logic the Council of Ministers would have to check its actions with the Supreme Court. This is not the work of the Court. This is the work of the Attorney General (explained further at paragraph 6.13 below). In defending his position for ignoring the Attorney General’s advice Mr Boulekone identifies himself with a former French leader, General and later President Charles de Gaulle of France and quotes a speech from that person.
6.5 The reader is recommended to read closely the reply of Mr Boulekone.
The three main themes of Mr Boulekone’s reply
6.6 At one point in his reply Mr Boulekone says:
'Why doesn’t the Office of the Ombudsman ask here the real question? Must a Minister of the Government, an elected member of the People always obey a civil servant (the Attorney General who is a civil servant).
Who is governing Vanuatu: the elected of the People who govern Vanuatu and take their decision or the civil servants?'
6.7 In my opinion, the above statements goes to the heart of Mr Boulekone’s inability to understand his own role as a Minister and the role of the Attorney General. In my view, the first question he asks misses the point. The real question is not the question of obeying a Public Servant, in this case the Attorney General, or to ask who is governing Vanuatu. The issue is the relationship of the law in Vanuatu with the Executive. The simple answer is that all of us, Ministers included, are under the law and must follow the law.
6.8 Mr Boulekone’s reply contains many statements that reflect three essential points:
(a) If there is no law preventing a certain action then Mr Boulekone, as a Minister, believes that he can take that action;
(b) The Ombudsman and the Attorney General cannot tell a Minister that his or her proposed action is against the law or not provided for in law. Only if the Supreme Court states this is a Minister not able to take this course or alternatively be subject to criticism; and
(c) The Council of Ministers authorised his order.
6.9 I consider that Mr Boulekone is fundamentally mistaken in both of the first two views. His third point is irrelevant. The Council of Ministers cannot make what is unlawful lawful. I now explain my views for concluding that Mr Boulekone is in error.
Everyone is under the law
6.10 Article 4(1) of Vanuatu’s Constitution says:
National sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives.
(emphasis added)
6.11 Article 39(1) of Vanuatu’s Constitution says:
The executive power of the people of Vanuatu of the Republic of Vanuatu is vested in the Prime Minister and Council of Ministers and shall be exercised as provided by the Constitution or a law.
(emphasis added)
6.12 This means that if there is not a law or something in the Constitution the Prime Minister and the Council of Ministers cannot do it. The Attorney General told Mr Boulekone that his order had no basis in law and therefore was not permissible in his legal opinion. That was a view shared by the Ombudsman’s Office. This leads to the second essential point from Mr Boulekone’s reply - what is the role of the Attorney General and the Ombudsman in situations such as these.
Role of Attorney General - to give legal advice
6.13 Section 1(1) of the Law Officers Act [Cap 188] it states:
There shall be an Attorney General of Vanuatu who shall be the principal legal adviser.
6.14 Section 1(4) states:
The Attorney General shall participate in all meetings and deliberations of the Council of Meetings but shall have no vote.
6.15 Mr Boulekone is correct when he says that the Attorney General cannot stop a Minister from acting. This is clear from the fact that while the Attorney General is present at a COM meeting he or she has no vote. However, it is in my view most unwise and dangerous for the Council of Ministers or a Minister to go ahead with action where the Attorney General has, as in this case, given the legal opinion that the proposal is not lawful. It is not a matter of obeying the Attorney General it is a matter of the law.
6.16 The role of the Attorney General is to advise the Ministers of the law. That is what Parliament decided when it passed the Law Officers Act [Cap 188]. Despite this Mr Boulekone says at one point 'I repeat that the Attorney General is not responsible for stating the Law '. That is exactly what the Attorney General role - advising on the law is to state what the law is in his or her opinion. Where a Minister has deliberately chosen to ignore advice as in the circumstances as have been explained in this report this is conduct which in my view is inconsistent with some of the principles appearing in article 66 of the Constitution, the Leadership Code and could also be otherwise unlawful.
6.17 This is the reason why I, as Ombudsman, reported on this matter. I considered Mr Boulekone’s conduct would diminish respect for the Vanuatu Government. This leads to the role of the Ombudsman in being able to give an opinion on the conduct of a Minister and the legality of the Minister’s order.
Role of the Ombudsman - to enquire and report on conduct
6.18 Article 63(3) of the Constitution states:
Wherever, after due enquiry, the Ombudsman concludes that conduct was contrary to the law, based on error of law or of fact, delayed for unjustified reasons, or unjust or blatantly unreasonable and that, consequently, any decision taken should be annulled or changed or that any practice followed should be revised, he shall forward his findings to the Prime Minister and to the head of the public authority or department directly concerned.
(emphasis added)
6.19 What the Constitution clearly states is that the Ombudsman is to reach a conclusion after an enquiry which, amongst other things, is to be based on a view of the law. In this case, based on legal advice given, I agreed with the advice that the Attorney General had already given to Mr Boulekone.
6.20 In these circumstances I also considered that to ignore Mr Bulu’s advice was blatantly unreasonable conduct on the part of Mr Boulekone. This was particularly so given the scale of the project being undertaken by Mr Boulekone. Therefore, as a leader, I consider Mr Boulekone to have fallen far below the standard to be expected of a responsible leader in the circumstances. A responsible leader could have done one of the following four things:
(a) Abandoned the CVDC Trust project; or
(b) Sought further advice from the Attorney General as to how the project could be done legally and modified it in accordance with the advice given by the Attorney General; or
(c) Tabled a Bill before Parliament to make new law so that the project was lawful in present form; or
(d) Sought a declaration from the Supreme Court as to the legality of the proposed action (I consider that this step is unusual but it is a possible step nevertheless if the Executive strongly felt on good grounds that the Attorney General had got it wrong).
6.21 I note that in respect to option (c) this would have been consistent with section 2 of the Finance Act which it will be recalled requires the Finance Minister to ensure that control of Parliament is upheld (refer paragraph 5.7 above). This means that it is not up to an individual Finance Minister to act on his own in matters such as the CVDC Trust but a matter for Parliament to decide.
6.22 In failing to take these possible steps I am of the opinion that Mr Boulekone acted irresponsibly and brought disrespect to his Office and the Vanuatu Government. This is one of my findings in the next section.
Other points
6.23 Mr Boulekone sought to emphasise in parts of his reply that he was a lawyer. I am unaware of his legal qualification. According to the records at the Supreme Court dating back to 1976 kept by the Registrar, Mr Boulekone has never been a lawyer admitted to practise in Vanuatu. I do not consider that he is in a position therefore to override the advice given to him by the Attorney General who is the principal legal adviser to the Vanuatu Government (as per section 1(1) of the Law Officers Act, see 6.13 above).
6.24 Mr Boulekone, in addition to giving his own opinions on what he understands to be the law in relation to his own order, states that the Ombudsman has acted illegally. Mr Boulekone says that his constitutional rights have been breached. He is entitled to express that opinion but that opinion is not accepted by the Ombudsman’s Office. He finishes his reply by stating:
'As far as I am concerned and if necessary, I will take Mrs Marie Noëlle Ferrieux Patterson to the Supreme Court, as I have already done[2], because I don’t believe that it is acceptable to so damage the authority of the State, democracy and my constitutional rights.'
6.25 Mr Boulekone complains that the Ombudsman sent him a letter on 18.2.98 requesting him to answer some questions a witness and he was given 10 days to answer and did not wait for his answer to issue the preliminary report. However, as the Office of the Ombudsman obtained more information from other sources about the project going ahead, the complaint against the Minister was sent to him immediately in accordance with section 62 (4) of the Constitution
The Ombudsman shall grant the person or body complained of an opportunity to reply to the complaints made against them.
This complaint was confidential and is sent for the purpose of the people being complained about to, be given a chance to reply and set the record straight if the Ombudsman is misled. Mr Boulekone has never answered the questions and never sent the requested documents. He had ample time to do that till the day of issuance of the public report on 26.3.98. His answer is fully published in this answer except for the defamatory part as mentioned in paragraph 6.2.
7 FINDINGS OF WRONGFUL CONDUCT
Finding No 1: Breach of Leadership Code by Mr Boulekone - unlawfully purporting to transfer Vanuatu’s assets
7.1 Mr Boulekone knew what he was attempting to do was unlawful in the opinion of the principal legal adviser to the Government. The Attorney General had told him this. By going ahead in these circumstances he was grossly irresponsible and as such made a mockery of his office as a Minister. He can only have made himself a figure of ridicule by those in the financial community, both local and international and thus have lost respect for the himself and the Vanuatu Government.
7.2 I note also that by issuing the order without the Attorney General’s approval through initialling a draft, Mr Boulekone breached paragraph (g) of the Council of Ministers’ Instructions On Procedure of Council of Ministers (refer paragraph 5.32 above).
Finding No 2: Breach of the Leadership Code by Mr Boulekone - unnecessarily and unfairly damaging the reputation of the Attorney General
7.3 By referring to the Attorney General’s advice in his 'Ministerial order' as if the Attorney General had given his blessing Minister Boulekone exposed the professional credibility of the Attorney General to ridicule. People reading the order would, in short, think that the Attorney General was a hopeless lawyer.
Indeed, it might even be presumed that the 'Ministerial order' had been drafted and/or checked by the Attorney General. The fact is that neither of these things are true.
7.4 Accordingly, the Minister through his conduct has lead to an injustice to the professional credibility and reputation of the Attorney General. As such this represents a further breach of the Leadership Code by Mr Boulekone. With the real facts exposed Mr Boulekone’s conduct is seen as deliberately misleading and hence, in my view, Mr Boulekone’s integrity is damaged.
8 RECOMMENDATIONS
RECOMMENDATION NO 1: MINISTER OF FINANCE TO REVOKE ORDER AND OBTAIN SUPREME COURT DECLARATION THAT ORDER TRANSFERRING OWNERSHIP OF VANUATU’S ASSETS VOID AB INITIO (i.e. invalid from the beginning)
8.1 The above is self explanatory. Once the new Government is formed and a Minister of Finance appointed I recommend that the order that is the subject of this order be revoked. Out of prudence it may also be best for that Minister, on the Council of Ministers’ instructions, to have the Attorney General apply to the Supreme Court for an order declaring the order of Mr Boulekone void ab initio and of no legal or other effect and I accordingly so recommend.
RECOMMENDATION NO 2: MR BOULEKONE NOT BE REAPPOINTED TO A MINISTERIAL POST OR TO ANY POSITION WHERE PUBLIC ASSETS OR MONEY IS AT STAKE
8.2 Mr Boulekone through his deliberate refusal to follow the Attorney General’s advice acted to the potential prejudice of the assets of the People of Vanuatu. He should not be placed in a position where he could so act again in the future.
RECOMMENDATION NO 3: PARLIAMENT TO PASS LEADERSHIP CODE ACT
8.3 Given the facts of this report I again recommend Parliament to pass the Leadership Code Act so that leaders who may have acted in breach of the Leadership Code in the Constitution may have their conduct examined by a Court or Tribunal with consequences for those leaders who are found to have breached the Code. This it is hoped will encourage leaders to follow the principles set out in the Constitution relating to leadership.
24 March 1998
MARIE-NOËLLE FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU
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[1] It is more likely however that the drafters would not have contemplated this. What the drafters were probably contemplating was more likely to be supplies kept at Government Stores Department, such as furniture, items used for repairing government property, office and equipment. For the purpose of the above discussion I have given the Minister the benefit of the doubt and proceed on the wider meaning.
[2] Mr Boulekone refers to an interim injunction application that he brought against the Ombudsman on 5 March 1998 in respect to the Volani report dated 20 February 1998. The Supreme Court rejected Mr Boulekone’s application.
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