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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
Private Mail Bag 081
PORT VILA
VANUATU
SPECIAL REPORT
ON THE
ORDINARY PASSPORTS
NUMBERED
A004302 TO A004305
26.11.99
8332/9/16
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PUBLIC REPORT ON THE
ORDINARY PASSPORTS
NUMBERED
A004302 TO A004305
PREAMBLE
'People will say, 'The righteous are indeed rewarded; there is indeed a God who judges the World.''
Psalms 58:11
SUMMARY
It is surprising how easy it appears to be to obtain passports for those whose background does not bear examination while bona fide applicants often find themselves exasperated by endless delays and obstructions. It is to be hoped that this investigation will lead to a more responsible application of the law by officers responsible.
TABLE OF CONTENTS
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1. JURISDICTION
1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Prime Minister’s Office and the Immigration Department. We can also look into defects in laws and/or administrative practices, including the improper issue of ordinary passports.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 The purpose of this report is to present the findings as required by the Constitution and the Ombudsman Act. This report has been prepared pursuant to s.34(2) of the Ombudsman Act No.27 of 1998.
2.2 The scope of this report is concerned with whether John Mark Bell as 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 removed from the Immigration Office and/or improperly issued. 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) Mr. Manwo Kepoue, Chairman of the Citizenship Commission
2.3 This Office collected information and documents by informal request, summons, formal letters, interviews and research.
3. RELEVANT LAWS
3.1 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 wilfully 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.
3.2 CAP 108 Section 13(b) of the Passport Act states that:
Any person who wilfully-
(b) makes any false statement for the obtaining of a 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.
Misappropriation
3.3 CAP 135 Section 123 of the Penal Code states that:
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
3.4 CAP 135 Section 124 of the Penal Code states that:
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
3.5 Cap 135, Section 124 of the Penal Code states:
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
3.6 s.131, Penal Code Act Cap 135 states:
No person shall receive anything obtained by any offence, or by any act wherever committed which, if committed within the Republic would constitute an offence, knowing that thing to have been dishonestly obtained.
3.7 CAP 105 Section 35 (3) in relevant part provides that:
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. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
4.1 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 provided prior to this public report to give another opportunity to respond.
4.2 No responses were received from;
Mr. William Tari
Mr. Noel Tabiusu
4.3 Responses were received from:
(a) Mr. Faionalave. In an interview with the Ombudsman on 25 May 1999 Mr. Faionalave stated the following:
Finding 1 Taem ia mi stap olsen Ofis Supaviser long Kansel blong ol Minista. Mi. bin gat authorisesen long Noel Tabiusu. Hemi talem se mi ko kolektem wan samting blong hem long Immigreisen. Mi ko luk John Mark Bell mo mi talem long hem se mi kam from samting blong Noel Tabiusu. Afta Mr. Bell hemi kivim wan yelo envelop. Afta mi karem i ko kivim long Mr. Tabiusu. Hemia long 4 March 1997.
Sapos yufala i karem ol agenda long Sekretari Jenerol bambae yufala i luk agenda hemia blong Citizenship Act blong dei ia 4 March 1997.
Finding 2 Mr. Tabiusu i kiaman. Hemi bin sendem mi blong ko from ol paspot. Mo mi no ko tekem mo kivim envelop long hem. Yufala i shud toktok long Larisa (Pentecost) hemi wok long Ministri blong Internal afers.
Larisa hemi bin taipem wan leta blong Manwo mo Tabiusu blong Mr. Vohor i saenem.
Finding 3 Taem ia mi ko finenem Manwo mo Tabiusu wetem ol mane ia then oli sek mo kivim VT 50,000 long mi. Oli talem long mi blong mi no talem aot long eni man. Mi no talem aot from mi fraet se bambae mi lusum wok blong mi. Mi kam aot nomo afta investigeisen blong yufala i stat.
Ol samfala paspot Manwo mo Tabiusu i ko luk President Leye afta working hour blong hemi saenem ol paspot hemia long haos blong hem. Yufala i save askem Jano Sese we hemi wok wetem forma President be Naoia hemi wok wetem niufala President.
(b) Mr. Manwo responded in a letter dated 24 May 1999. It reads:
'Folem content blong report ia, mi wantem informem offis blong you se you refer backegen long interview blong mi long registered cassette. Mi nomo save kivim fresh information long you from case ia i tekem long taem tumas mo mi stap forgetem same somethinks finish.
Mr. Sunny mo tufalla sons blong em oli no stap long Taiwan. Oli bin stap long Vila. Noel F. i talem se mi receivim huge of money (1.5 million vatu). Big huge of money, who i kivim long mi? Mo mi kivim 50,000 VT long hem long wea ples? Mi never receivim 1.5 Million Vatu. Sipos i true oh mi mekem wan bisnis blong mi finish. Mi mi never kat wan bisnis. Abaot ol 3 passports ia, mi mi save se oli kivimaot 3 passports but who I deliverem long olgeta? Mi kivim nomo 3 certificates folem recommendation letter we i kam long mi
Yufala i save askem long Noel Tabiusu, mi never kivim wan money long hem. Mo mi never talem long Noel F. se eh brother you no talemaot some ting ia. Wem,proof? Check account no# blong mi please. Sipos mi bankem wan big amount of money like. Mi stap ready oltaem blong kivim ol ansa long you.'
(c) Mr. Bell telephoned to the Ombudsman’s Office on 25 May 1999. He stated the following:
Finding 4 He did not aid and abet Mr. Faionalave.
Finding 5 Principal Immigration Officer and the Principal Passport Officer were two different positions. He informed Mr. Namaka of the Special Branch in writing about the missing passports. The Special Branch has a duty to contact the Police Commissioner. That is the standard police procedure.
Finding 6 He was not prepared to defend himself in any court of law until he is proven guilty or not guilty.
5. OUTLINE OF EVENTS
5.1 On 4 March 1997, Mr. Noel Faionalave, the Former Officer Supervisor in the Prime Minister's Office, telephoned the 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 1999.
5.2 Mr. Bell asked Sergeant Salali(Passport Officer) to get the passports and give them to Mr. Faionalave. These passports were numbered A004301 to A004305. This was witnessed by 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'.
5.3 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. A copy of Mr. Bell's letter dated 17 September 1997 is annexed '4'.
5.4 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'.
5.5 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'.
5.6 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'.
5.7 One of the passports (A004303) was issued to a person claiming to be an 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'.
5.8 Towards the end of May 1997, passport A004303 was taken back to the Immigration Office by Mr. Manwo. Sgt. Salali attended to Mr. Manwo. Sgt. Salali recognized 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 Kepwe Manwo replied that he would 'fetch it'. See Sgt. Salali's statement annexed '9'.
5.9 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 is under investigation by the police.
6. FINDINGS
Finding 1: Prima facie violation of Section 13(b) of the Passport Act Cap.108 by Mr. Noel Faionalave
6.1 Mr. Fainolave may be liable for prosecution under s.13(b) of the Passport Act for collecting the four passports without showing any authorization by Mr. Tabiusu. The penalty prescribed under s.13 is 5 years imprisonment or a fine of Vt100,000 or both such fine and imprisonment.
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 13(d) of the Passport Act, the penalty of which is 5 years imprisonment or a fine of Vt100,000 or both such fine and imprisonment.
Finding 3: Prima facie violation of Section 125 of the Penal Code Act Cap.135 (Misappropriation) by Messrs. Noel Faionalave and Kepoue Manwo
6.3 M. Faionalave improperly took away 4 Vanuatu passports without any documented authorization from Mr. Tabiusu and failed to return the passports. Mr. Manwo was improperly in possession of passport A004303, which was illegally stamped with the Prime Minister's office stamp and signed by someone other than Mr. Bell. Mr. Manwo paid for the passport and took away the passport with him. Messrs. Faionalave and Manwo are liable for prosecution under Section 125 which carries a penalty of imprisonment for 12 years.
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
6.4 Mr. Faionalave, on his on 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 are liable for prosecution
under Section 131 which prescribes a penalty of imprisonment for 1 year. They could also be charged with false pretence under Section
125(c) of the Penal Code Act Cap 135.
Finding 5: Improper issue of passports to Mr. Noel Faionalave by
Mr. John Mark Bell
6.5 Mr. Bell as Principal Passport Officer, improperly and illegally issued 4 Vanuatu passports to Mr. Faionalave. Mr. Bell did not confirm with Mr. Tabiusu before releasing the passports. He did not ask Mr. Faionalave to sign for the passports. Mr. Bell's conduct was contrary to law and blatantly unreasonable. Mr. Bell may be liable for prosecution under s.13(e) of the Passport Act Cap 108.
Finding 6: 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
6.6 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. For this omission Mr. Bell is also liable for prosecution under s.13(f) of the Passports Act. Mr. Bell is also in breach of his police duty to promptly act and communicate information concerning the four missing passports according to s.35(3) of the Police Act.
Finding 7: Breach of the Leadership Code by Messrs. John Mark Bell,
Noel Tabiusu and Kepoue Manwo
6.7 The above persons are all liable for prosecution for acts and omission contrary to the Passports Act regarding the 4 missing passports. Their conduct places their integrity in question and endangers respect for and confidence in the integrity of the government of the Republic of Vanuatu.
7. RECOMMENDATIONS
Recommendation 1: Criminal investigation of conduct by Messrs. Faionalave, Manwo, Tabiusu and Bell
7.1 This matter be referred to the Police Department for investigation.
Recommendation 2: Messrs. Faionalave, Manwo and Tabiusu not hold any positions of public office
7.2 The Prime Minister, Public Service Commission and any public appointing authority should not appoint or recruit any of the above persons to any positions of public office in the future. Mr. Bell is now occupying a position in the Police Joint Administration Centre after being transferred to the Police Headquarters. Mr. Kepoue is still occupying a position as a commissioner within the Citizenship Commission even though he was suspended.
Recommendation 3: Police Service Commission to consider disciplinary action against Mr. John Mark Bell
7.3 The Police Service Commission should consider disciplinary action against Mr. Bell for his unprofessional and improper conduct in dealing with this matter. Mr. Bell should not hold any such high office in the future.
Recommendation 4: All passports A004302 to A004305 should be cancelled by the Immigration Department
7.4 The Immigration Department should follow up on these passports and cancel them.
8. CONCLUSION
8.1 To comply with Article 63(2) of the Constitution and Section 22 of the Ombudsman Act, the Ombudsman requests the Prime Minister and his Director General, Principal Immigration Officer, Police Commissioner, Police Service Commission and Public Service Commission to seriously consider these recommendations and to put them into effect forthwith.
8.2 The Office of the Ombudsman must be notified of the decision and proposed steps to implement these recommendations within thirty (30) days of the date of this report.
Dated the 26th day of November 1999.
Mr Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU
9. INDEX OF APPENDICES
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