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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PUBLIC REPORT
ON THE
DEPORTATION OF THE PUBLISHER OF THE TRADING POST
MARC-NEIL JONES
FROM VANUATU
31.10.2001
1106/2001/08
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DEPORTATION OF THE PUBLISHER
OF THE TRADING POST
MARC-NEIL JONES
FROM VANUATU
TABLE OF CONTENTS
SUMMARY
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SUMMARY
The Ombudsman conducted an enquiry into the deportation of the publisher of the Trading Post newspaper, Marc-Neil Jones (Mr. Jones), from Vanuatu on 19 of January 2001. This was an enquiry instigated at the Ombudsman’s own initiative as the matter raised important issues of breaches of procedural fairness and infringements of Constitutional and civil liberties on the part of the Government. The matter also suggested that there may be breaches of the Leadership Code Act on the part of the government leaders involved, however it was decided that this enquiry would focus strictly on the detention and removal of Mr. Jones from Vanuatu.
Briefly, the facts are as follows. On January 19 2001 at 5:30 a.m the Principal Immigration Officer (PIO), Lesley Garae and members of the police force, awakened Mr. Jones at his residence at Melemaat just outside Port Vila. The PIO informed Mr. Jones that he was under arrest and was to be taken immediately to the airport to board the 7:00 a.m. flight to Brisbane. The PIO showed Mr. Jones copies of the Detention and Removal Orders which were signed by the Minister of Internal Affairs, the Honourable Barnabas Tabi, who was acting at the request of the Honourable Prime Minister, Barak Sope.[1]
Mr. Jones was brought to the airport but was not allowed to take any clothes, medicine or money with him. At the airport, the British High Commissioner, Mr. Michael Hill, and John Malcolm, Mr. Jones’ lawyer attempted to intervene, but both were informed by the PIO that he was following orders issued by the government. Mr. Jones was then taken by the police and the PIO and forced aboard the aircraft.
Later that morning, his lawyer obtained an ex-parte Interim Order from the Supreme Court. The Court ordered that the government issue or extend a permit to allow Mr. Jones to return to Vanuatu and not interfere with his rights to live and work in the country. Upon learning of the Court Order, the PIO directed his immigration officers to allow Mr. Jones to re-enter the country. Mr. Jones returned to Vanuatu on Sunday, January 21, 2001.
Findings
The Ombudsman found that:
Recommendations
The Ombudsman recommends:
1. JURISDICTION
1.1 The Constitution, the Ombudsman Act and the Leadership Code Act allow me to look into the conduct of government, related bodies, and Leaders. This includes the Department of Immigration and other government agencies involved in the removal of Marc-Neil Jones (Mr.Jones) from Vanuatu pursuant to the relevant provisions of the Vanuatu Immigration law and the Constitution.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 The purpose of this investigation was to provide a confidential working paper so that those with allegations against them had an opportunity to respond, and if possible to resolve outstanding issues before a public report was issued. Following the issuance of the working paper, there was no attempt by the government to resolve any of the issues raised, so the Ombudsman proceeded to issue this public report.
2.2 The scope of this investigation is to establish the facts about the removal of Mr. Jones, publisher of the Trading Post, from Vanuatu on January 19 2001. It will also establish whether the order signed by the Minister of Internal Affairs (responsible for Immigration) was made according to the laws of Vanuatu and whether the Principal Immigration Officer (PIO) and accompanying police officers acted within the law when executing the removal order. While there were many issues that suggested breaches of the Leadership Code, this report focuses strictly upon maladministration and breach of law within the Ministry of Internal Affairs.
2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.
3. RELEVANT LAWS, REGULATIONS AND RULES
The full text of all relevant laws are attached at the end of this report in “Appendix P”
CONSTITUTION OF THE REPUBLIC OF VANUATU
THE OMBUDSMAN ACT NO 27 OF 1998
THE IMMIGRATION ACT [CAP 66]
UNIVERSAL DECLARATION OF HUMAN RIGHTS
4. OUTLINE OF EVENTS
The Directive from the Office of the Prime Minister
4.1 On January 12, 2001, Prime Minister Barak Sope sent an urgent letter to the Minister of Internal Affairs, Barnabas Tabi, instructing him to deport Mr. Jones immediately from Vanuatu. Prime Minister Sope cited the reason for this deportation was because Mr. Jones had “caused damage to the country in his false reporting.” (See Appendix “A”)
4.2 On January 18 2001, the publisher of the Trading Post, Mr. Jones made a telephone call to Dinh Van Than[2]. Mr. Jones advised him that the newspaper was going to publish a story on the government’s attempts to convince the Reserve Bank to issue USD50 million in government bonds to Mr. Amarendra Nath Ghosh, Vanuatu’s Honorary Consul to Thailand.
The Delegation to the Office of the Principal Immigration Officer
4.3 On January 18 2001, at approximately 6:15 p.m., a delegation consisting of Police Commissioner Peter Bong, Assistant Police Commissioner Paul Willie Reuben, and First Political Advisors David Esrom, (CRP), Lionel Kalwat, (Lands), and Clifford Bice (Infrastructure and Public Utilities) attended at the office of the PIO, Lesley Garae.
4.4 The purpose of their visit was to instruct the PIO to execute a removal and a detention order issued and signed earlier that day and signed by the Minister of Internal Affairs, Mr. Barnabas Tabi. (See Appendices “B” and “C”)
The Execution of the Detention and Removal Orders
4.5 On January 19, 2001, at approximately 5:30 a.m. Jenny Simeon,
Mr. Jones’ partner, was awakened at their residence near Melemaat Village, north of Port Vila, by the sound of two vehicles
driving into the yard. She looked out the window to see the PIO accompanied by the police.
4.6 Jenny Simeon awoke Mr. Jones and advised him that the police wanted to see him. Opening the door he was advised by the PIO that he was under arrest, and was to be taken immediately to the airport for deportation. Mr. Jones asked to see the papers and was shown copies of both the detention and removal orders.
4.7 Mr. Jones asked the PIO to take him to the police station to allow him time to consult his lawyer. The PIO refused saying that there was no time, as the flight to Brisbane was departing at 7:00 a.m.
4.8 Mr. Jones advised the PIO that what he was doing was illegal. He stated that the PIO berated him for writing stories about the Prime Minister and that he deserved to be deported. The PIO stated at that time that he was only following orders.
4.9 Jenny Simeon then informed the PIO that Mr. Jones was an insulin dependent diabetic and that he needed medication. Mr. Jones claimed that the police officers would not allow him to take the insulin with him from his refrigerator and told him to buy insulin in Australia.
4.10 Mr. Jones then told the PIO that he was a British passport holder and had been paying an immigration bond to be repatriated to England in the event of deportation. According to Mr. Jones the PIO would not entertain such an idea and kept repeating that he was following orders.
4.11 Mr. Jones was then taken from the house and placed in one of the police vehicles. He claimed only to be carrying a small insulin pen and Vt5000. He was not allowed to take any clothes or medication with him.
4.12 At that time, Mr. Jones instructed Jenny Simeon to contact his business partner Gene Wong, and his lawyer. She went to the phone and asked the two police officers who remained inside the house if she could use the telephone. According to Jenny, they were intimidating and asked her why she wanted to use the phone. She claimed she was too frightened by the officers to make a phone call.
Arrival at Bauerfield International Airport
4.13 At the international terminal at Bauerfield airport Mr. Jones ran into the departures area and shouted that he was the publisher of the Trading Post newspaper and the Government was deporting him because it did not like the news he was reporting. Mr. Jones said this was a violation of his human rights.
4.14 It was alleged at this time people attempted to assist Mr. Jones by using the telephone but that airport security prevented people from using the telephones and cut TVL telephone lines.
4.15 The PIO surrounded Mr. Jones with the police officers and escorted him into a room in the immigration area. After further altercations with the PIO Mr. Jones reported that he broke down and wept. He asked the PIO why he was doing this and the PIO responded that he was only following orders.
4.16 Mr. Jones’s lawyer, John Malcolm came into the immigration room and advised the PIO that the removal order was in breach of the law and he needed time to get a court order to prevent the deportation. The PIO refused, stated again Mr. Jones had to go immediately, and that John Malcolm must leave.
4.17 Jenny Simeon came in to the immigration room and told the PIO that Mr. Jones needed his diabetes medication. The PIO told her she had no right to be there.
4.18 According to Mr. Jones, the British High Commissioner, Michael Hill, came into the room and asked to speak with the Minster for Internal Affairs, Barnabas Tabi. The PIO claimed he did not know the number. The Commissioner advised the PIO that his action was a breach of human rights but the PIO reiterated that he was only following orders. The British High Commissioner stated that this was likely to cause a major diplomatic incident.
Boarding the Aircraft
4.19 The PIO stated that Mr. Jones had to board the aircraft. Mr. Jones reported that he refused, stating ”I am not moving. I have my rights which are not being honoured by you. This has nothing to do with following orders. This is bullshit and you will have to carry me to the aircraft kicking and screaming as I am not going.” The British High Commissioner advised Mr. Jones to go quietly.
4.20 As he was boarding the aircraft, Mr. Jones reported that he shouted up to the gathering crowd “My rights have been abused. I am being deported with no clothes, no possessions, no money.” He further reports at that time he was manhandled by security.
4.21 Upon arrival in Brisbane, Marc-Neil Jones was assisted by the British High Commission, which provided funds for accommodation, meals, telephone calls and clothing.
4.22 At the same time, Marc-Neil Jones’s lawyer, John Malcolm, wrote to the Minister of Internal Affairs, Mr. Barnabas Tabi and requested that he cancel the orders against his client. He did not receive a response. (See “Appendix D”).
4.23 Later that morning Mr. Malcolm obtained an ex-parte Interim Order signed by the Acting Chief Justice Lunabek. This was an application for leave to the Court for orders of prohibition[3], mandamus[4] and other orders. This Interim Order named the Attorney General, Mr. Ham Lison Bulu, and the PIO, Mr. Lesley Garae as the first and second defendants, respectively. (See Appendix “E”).
4.24 The Court ordered that the Government issue or extend a permit to allow Mr. Jones to enter, reside and work in Vanuatu. The Court prohibited the Government from any way interfering with Mr. Jones’ rights and privileges to live and work in Vanuatu, and ordered that the government allow him to move freely in and out of the country. The Court further ordered that the government release any detention order or removal order issued against Mr. Jones under the Immigration Act.
4.25 Upon learning of the Court order, and confirmation of Mr. Jones’s return flight to Vanuatu on Sunday, January 21, 2001, the PIO directed his immigration officers to allow Mr. Jones to re-enter Vanuatu.
4.26 On January 21 2001, Mr. Jones returned to Vanuatu and was reportedly welcomed by a crowd of supporters including immigration officers. He advised that there had been an attempt to prevent him from boarding the plane in Brisbane. Mr. Jones stated that he was informed by Mr. Maxwell Cain, the Brisbane Manager of Air Vanuatu that there were moves from “higher up” to prevent him from boarding the aircraft. Mr. Jones was advised to book through Qantas to avoid any problems.
4.27 According to Mr. Jones this was confirmed later by Jean Paul Virelala, the General Manager of Air Vanuatu. Mr. Virelala allegedly advised that it was someone “high up” in government who tried to prevent Mr. Jones from boarding the plane in Brisbane.
4.28 On Monday, January 22, 2001 Mr. Jones attended the Office of the Ombudsman to lodge an official complaint about the actions of
the Minister of Immigration,
Mr. Barnabas Tabi, and the PIO, Mr. Lesley Garae.
4.29 That same day, the Office of the Ombudsman served a Notice to a Witness[5] to the Minister of Internal Affairs, Mr. Barnabas Tabi, and the PIO, Mr. Lesley Garae pursuant to Article 62 (3) of the Constitution, and Section 22 of the Ombudsman Act. These notices required the Minister and the PIO by law, to come to the Office of the Ombudsman on January 23, 2001 and provide information about the removal of Mr. Jones from Vanuatu. (See Appendices “F” and “G”).
4.30 On the afternoon of January 22, 2001, the Office of the Ombudsman received a call from Jeanette Bolenga, Acting Director General of the Ministry of Internal Affairs. She stated that she was calling to postpone the time of the Minister’s appearance and said their office would contact the Office of the Ombudsman to arrange another time.
4.31 On January 23 2001, the Office of the Ombudsman received a call from the Attorney General, Mr. Ham Lison Bulu regarding the notice to the Minister of Internal Affairs. The Attorney General advised that following the deportation of Mr. Jones and the ex-parte Interim Order, the matter was now the subject of the Court. He further stated that all interested parties, including the Office of the Ombudsman, should refrain from making any investigations until further notice by the Court. Any enquiries into this issue may be in contempt of this Order. He further advised that he would confirm this in writing. (See Appendix “H”).
4.32 The Office of the Ombudsman responded to the Attorney General’s directive. This response outlined the jurisdiction of the Ombudsman, who is not subject to the direction or control in the exercise of his function by any other body. This includes the Attorney General. As such, there was no legal basis for the Attorney General to issue directives to the Office of the Ombudsman. The office reiterated its request that the Minister of Internal Affairs attend to the office as required by law. (See Appendix “I”).
4.33 The PIO attended at this office as required on January 23, 2001. He confirmed that he was approached at his office on January
18 2001 by a delegation from the Prime Minister’s Office, consisting of first political advisors Mr. David Esrom (CRP),
Mr. Clifford Bice (Infrastructure and Public Utilities) and Mr. Lionel Kalwat (Lands). These political advisors were accompanied by
Mr. Peter Bong, Commissioner of Police, and the Assistant Commissioner, Mr. Paul Willie Reuben. They handed the PIO copies of the
detention and removal orders and told the PIO to execute the orders the following morning.
4.34 When asked why he carried out what appeared to be an unlawful removal order the PIO replied that there was no time to examine the Immigration Act. He was told to put Mr. Jones on the plane early the next morning.
4.35 The PIO was questioned further about his responsibility as the Principal Immigration Officer. When asked if it was not his duty to fully inform himself of the laws governing his office and to be aware of the proper procedures to be followed in the execution of a removal order, the PIO responded that he had no choice, he was just carrying out his orders and instructions. The PIO added that, as a police officer, he would not disobey the order given by the high ranking Commissioner of Police, Mr. Peter Bong because he would be subject to the charge of an offence against discipline.
4.36 The PIO was asked if he was aware that the Attorney General had approved and drafted the orders. He replied that he believed that the Attorney General had been briefed beforehand.
4.37 He was then questioned about his duty as a police officer and his duty as the Principal Immigration Officer, as there seemed to be a conflict between the two. He responded clearly that in Vanuatu there is some confusion about the two positions. The PIO is seconded from the police force to act as the head of the Immigration Department. He added that he is a police officer first, and as such must obey the orders of his commanding officer, the Commissioner of Police.
4.38 When asked if he prevented Mr. Jones from carrying his medication for diabetes, he responded that he did not know if it was true that Mr. Jones was a diabetic. He said that on the morning he went to Mr. Jones’ house Mr. Jones went to the ice-box to remove some medicine but he was cross, and did not take it out. He stated that he did not prevent him from taking the medicine with him.
4.39 When questioned about whether he denied Mr. Jones access to his lawyer, the PIO replied that there was no time at the house to allow Mr. Jones to make a telephone call. He further stated that neither he, nor his officers denied Jenny Simeon the right to make a telephone call to the lawyer.
4.40 At the airport, when lawyer John Malcolm attempted to assist Mr. Jones, the PIO explained that he was in a restricted area and had no business there, and that he did not have any identification which would allow him to remain. The PIO explained that if a person enters a restricted immigration area without authorisation or identification, the PIO will ask that person to leave. In this case, the PIO was in the middle of executing his orders and did not want any obstruction from others. John Malcolm provided a statement attached as “Appendix J.”
4.41 The PIO explained that the British High Commissioner was allowed in to see
Mr. Jones because he possessed an identification card to grant him access to this restricted area. The PIO said that Mr. Hill began
to argue with him and attempted to incite Mr. Jones to further outbursts. (“Alle hemi mekem olsem se hemi nao hemi causem Marc-Neil Jones hemi kam ap moa wild antap long Airport”) The PIO stated that the British High Commissioner was a diplomat, representing his government. He should have gone through the proper
procedures of diplomacy and should not have argued with the PIO and attempted to obstruct the execution of his orders. The PIO further
added that he was ashamed (embarrassed) to witness a diplomat representing his country acting in that manner. The PIO stated that
the British High Commissioner should not have tried to encourage Mr. Jones to resist but should have tried to convince him to sort
matters out through diplomatic channels after.
4.42 The Ombudsman attempted to verify this information with the British High Commissioner. However, Mr. Hill stated in a telephone call on January 29 2001 to the Office of the Ombudsman that he did not want to make a statement as it might be construed by the government as political interference. He advised that he would contact his superiors in London and then confirm with the Ombudsman. (Mr. Hill’s response to the working paper can be found in part 5 of this report.)
4.43 On 5 February Mr. Hill delivered a letter to the office referring the Ombudsman to his Diplomatic Note dated January 2001 delivered to the Department of Foreign Affairs. The note was not attached. (See “Appendix K”)
4.44 The PIO was asked if he tried to intimidate Mr. Jones or Jenny Simeon. He said he was in the middle of an operation where anything might happen and the safety of everyone involved and the proper execution of the orders was very important. The PIO added that at the airport he had to control Mr. Jones during his outbursts to ensure that he did not escape, nor cause a disturbance.
4.45 When asked, under the circumstances, whether Mr. Jones’s reaction was that of a normal human being, in that he was being illegally and forcibly removed from his home, and deported to a foreign country with very little money, the PIO responded in the affirmative. He added that he thought Mr. Jones should have realized that he would be able to sort this out afterwards with the government.
4.46 The PIO was asked if he mistreated, abused or assaulted Marc-Neil Jones, or if he allowed any other officer to do so while in his custody, other than the reasonable use of force necessary to execute his order. He emphatically denied mistreating, abusing or assaulting Marc-Neil Jones or allowing any other officer to do so.
4.47 The PIO emphasized at the end of his interview that he was only following orders. He said it was not a personal operation on his part as he was simply executing direct orders from the government.
RESPONSE FROM THE MINISTER OF INTERNAL AFFAIRS
4.48 On January 29, 2001, the Ombudsman received a response from the Minister of Internal Affairs, Mr. Tabi, that he would not appear before the Ombudsman to give evidence, as the matter was before the Court. (See “Appendix L”).
The Vanuatu Police Force
4.49 The Commissioner of Police, Mr. Peter Bong was interviewed on January 30 2001.
Mr. Bong said that he was aware that Mr. Jones was going to be deported but he had not had any official notice before Thursday, January
18 2001, when he was requested to attend at the PIO’s office
4.50 The Police Commissioner expressed his concern with Mr. Jones’ reporting, and said that it was neither responsible nor balanced. He particularly expressed concern with the reports against the police force. He claimed to have advised the Minister of Internal Affairs that it was no good to issue a fourteen day removal order, rather it would be better to compile a case [criminal] against Mr. Jones. However, he advised the Minister that should he, together with the Prime Minister and Attorney General require police assistance, then they would assist them.
4.51 Commissioner Bong confirmed that he was asked to attend at the office of the PIO with the delegation from the Prime Minister’s office. He examined the orders and asked if the Attorney General agreed with them. The Police Commissioner was advised by the three political advisors that the State Law Office was consulted. He asked who they consulted and was told it was Arthur Faerua, Legal Officer. The Commissioner said in his opinion the orders were drafted according to law and looked convincing. He then advised the delegation to bring the orders to the PIO and ask him if he wanted to give any instructions to the police.
4.52 When questioned about the PIO’s allegiance to the Police Force or to the Minister of Internal Affairs, Commissioner Bong was adamant in saying that the PIO has his own enabling legislation to guide him, and does not take direct orders from the police. He emphasized this in a press release on 24 January 2001. (See “Appendix M”).
4.53 On January 30 2001 three of the accompanying police officers were interviewed separately by the Office of the Ombudsman. The three officers were Arthur Coulton, Willie Vira, and Captain Bongran Kalshem. They all stated they were acting under the direction of the PIO, and that the PIO was the only one involved in making the arrest and removal of Marc-Neil Jones. Captain Bongran provided a written statement about the involvement of the police. (See “Appendix N”).
First Political Advisors
4.54 On January 31 2001 Mr David Esrom, First Political Advisor (CRP) was interviewed. He confirmed that he was part of the delegation to the PIO’s office and was acting on the direct order of the Prime Minister.
4.55 On February 1 2001, Mr Lionel Kalkat, First Political Advisor (Lands) was interviewed. He also confirmed that he was part of the delegation and was following the instructions of the Prime Minister.
The Honourable Prime Minister, Barak Sope
4.56 Despite repeated attempts by the Ombudsman on January 31, February 1 and 2 to contact the Honourable Prime Minister to obtain his position on this issue, the Prime Minister did not return the Ombudsman’s telephone calls, nor did he make any arrangements to meet with him.
4.57 The Prime Minister outlined his position in a press release on 19 January 2001, and in a radio and television interview reported on January 24, 2001. The Prime Minister stated that Mr. Jones’s style of reporting is “a threat to the country and the government won’t allow a foreigner like him to come in and de-stabilise the country.” (See Appendix O”).
4.58 In response to the working paper the Prime Minister replied that a report would be a waste of government resources as the implementation of the recommendations would be unrealistic. He further added that the Ombudsman should disqualify himself from the investigation as he is aware that Mr. Jones is a personal friend of his and as such, the Ombudsman has a conflict of interest. (See Appendix P)
5. RESPONSES
5.1 The Honourable Prime Minister, Barak Sope responded to the working paper. He advised the Ombudsman against issuing the Public Report because it would be unrealistic. In addition, the Prime Minister said that because Mr. Jones was a “personal friend” of the Ombudsman, the Ombudsman “should disqualify [himself] from the case due to [a] conflict of interest.” (See Appendix P).
5.2 In his response to the working paper Commissioner Bong reiterated that the police and the PIO were acting on what they believed to be a genuine legal order signed by the Minister of Home [sic] Affairs. He said that they were assured that the order was drafted by the Attorney General in consultation with the Acting Prime Minister, Commissioner Bong stated that the Commissioner of Police can not influence the PIO or instruct him in any way to execute these orders. (See Appendix Q).
5.3 In response to the working paper Mr. Hill stated that he was not asked by the Office of the Ombudsman to “verify the information.” Neither was he informed of the remarks of the PIO, but had he been, he would not have attempted to dignify them with any comment. Finally, the British High Commissioner advised that he did not recall saying bluntly that he did not want to give the Ombudsman a statement but before responding substantively he would have to consult London in case such a statement could be construed as political interference. Mr Hill took issue with the drafting of these passages which, he said, gave the impression of unhelpfulness, when in effect, he was trying to be the opposite. (See Appendix R).
5.4 There was no response from PIO, Mr. Garae, to the working paper.
5.5 There was no response from TVL upon receiving a copy of this working paper to the allegation that the phone lines had been cut.
5.6 There was no response from Air Vanuatu to the allegations that Marc-Neil Jones had been prevented from boarding the aircraft in Brisbane by someone “higher up.”
Settlement of Marc Neil Jones’ deportation
Because this issue of deportation was brought to court for determination of its legality by Mr. Jones, the Ombudsman was informed through a letter written to Mr. Jones by his legal representative dated 3 September 2001 that the Government agreed to an out of court settlement of the matter. See Appendix S for the agreed terms of settlement.
On October 25, 2001, the Ombudsman obtained a Consent Order from the Supreme Court stating the terms that were agreed upon between
the government and
Marc Neil Jones to settle this matter. (See Appendix T).
6. FINDINGS
Finding 1: The Ombudsman finds that the removal order issued against Marc-Neil Jones was unlawful and in breach of section 17 (1A) of the Immigration Act.
6.1 The Ombudsman finds that the Minister of Internal Affairs was in breach of the law by not complying with this section because he did not give notice, in writing, to Mr. Jones that he was going to make the order.
The Immigration Act was amended in 1998 by the late Father Walter Hadye Lini, then Minister of Internal Affairs. The Act was amended to fall into line with the provisions of natural justice and procedural and administrative fairness.
In summary, the amended section 17 (1A) provides that before making a removal order, the Minister “must give the person notice in writing” that the Minister is going to make the order, the reasons for the order, and that the person has fourteen days from the date of the notice to make written representations stating why they should not be removed from Vanuatu. (emphasis supplied.)
Finding 2 The Ombudsman finds that the Minister of Internal Affairs, Barnabas Tabi was in breach of section 17 (1B) of the Immigration Act.
6.2 Section 17 (1B) of the Immigration Act provides a directive to the Minister that he must consider the representations of the affected individual before making a removal order (emphasis supplied). Minister Tabi did not give Marc-Neil Jones any notice that a removal order was going to be made against him. Nor did he afford Mr. Jones the opportunity to be heard, a fundamental principle of any administrative action. The Minister acted illegally in issuing the removal order without hearing any representations from the individual affected by the action.
Finding 3: The Ombudsman finds that the Minister of Internal Affairs, Barnabas Tabi, was in breach of section 17 (1C) of the Immigration Act.
6.3 Section 17 (1C) clearly states that if the Minister makes a removal order he must record this decision in writing and include the reasons for the order. The Minister must provide copies of the order and the reasons to the individual and, if the individual was issued with a permit by the Foreign Investment Board (FIB), to the FIB within 48 hours of making the order. While the Minister provided a copy of the order to Mr. Jones within 48 hours of its issue, he did not provide him with any written reasons as required by law, and is therefore in breach of section 17 (1C) of the Immigration Act.
In an administrative action, when reasons are required by statute, a decision that is not accompanied by reasons can be set aside as erroneous in law upon judicial review. The Vanuatu Supreme Court obviously concurs with this view as lawyer John Malcolm successfully had the orders set aside upon application to the Court.
Finding 4: The Principal Immigration Officer Lesley Garae and the Minister of Internal Affairs, Barnabas Tabi are in breach of section 21(5) of the Immigration Act by refusing to allow Marc-Neil Jones the right of appeal granted to him under this section.
6.4 Section 21(5) of the Immigration Act clearly provides that an individual who is issued with a removal order may, within 14 days of receiving the order, appeal to the Supreme Court of Vanuatu which has jurisdiction to hear the appeal. Section 21(8) provides that the Court may confirm or revoke the Minister’s decision, or make such other order as the Court thinks fit. By issuing a detention and removal order to be executed within 24 hours there was obviously no attempt on the part of the Minister or the PIO to allow Mr. Jones to exercise his statutory right of appeal under this section. Therefore, both the Minister and the PIO were in breach of their obligations under the Act.
THE CONSTITUTION
Commentary
Chapter 2 of the Constitution of Vanuatu provides for the fundamental rights and duties of the individual. Article 5 provides for fundamental rights and freedoms to be afforded to all persons, subject only to any restrictions imposed by law on non-citizens.[6] These rights are subject to the respect for the rights and freedoms of others and the legitimate public interest in defence, safety, public order, welfare and health.
Finding 5: The Ombudsman finds that the Minister of Internal Affairs and the Principal Immigration Officer blatantly denied
Marc-Neil Jones his constitutional rights under Article 5 of the Constitution.
6.5 Article 5 of the Constitution lists the fundamental rights and freedoms extended to all persons in Vanuatu subject only to restrictions imposed by law on non-citizens. In Vanuatu, a person has the right to liberty, security of the person, protection of the law, freedom of expression and equal treatment under the law or administrative action. As outlined above, the Minister and the PIO denied Mr. Jones his constitutional rights to liberty and security of the person by illegally and forcibly confining him and removing him from Vanuatu. Mr. Jones was not afforded protection of the law as he was denied reasonable access to his lawyer who would likely have obtained an interim order to prevent his deportation. He was denied freedom of expression in that the reason given for his removal was ostensibly for unbalanced reporting of leaked government documents.
Mr. Jones was denied equal treatment under administrative action when the Minister and the PIO acted illegally and in direct conflict with the provisions of the amended Immigration Act which gave him the right to be heard and to be given reasons for the action taken against him. Mr. Jones was denied equal treatment under the law by the Minister and the PIO’s refusal to allow him to appeal the decision and remain in the country pending the decision of the Court.
The Ombudsman finds the Minister and PIO to have acted in breach of the Constitution, the supreme law of Vanuatu.
Finding 6: The Ombudsman finds the explanation given by the PIO that he was simply following orders as a police officer and subject to disciplinary action if he did not execute an order from his commanding officer, Commissioner Bong in breach of his duties and obligations under sections 3 and 4 of the Immigration Act.
6.6 Mr. Lesley Garae is a police officer appointed as Principal Immigration Officer and as such, has his own enabling legislation, the Immigration Act. For him to argue that he is subject to the command of Commissioner Bong is a direct breach of his duty as PIO.
Furthermore, it is noted that the detention and removal orders were signed by the Minister for Internal Affairs, to whom the PIO looks to for direction, and not the Commissioner of Police. Therefore, the Ombudsman finds that the PIO was acting under the direction of the Minister and not the Commissioner as was claimed.
Finding 7: The Ombudsman finds that by executing a clearly unlawful order the PIO was in breach of his duties and obligations under the Immigration Act.
6.7 It is the duty of all government officers to be aware of their enabling legislation. To say that there was no time to examine the Act, as the PIO reported, to determine whether the orders were unlawful is blatantly unreasonable and contributed significantly to the illegality of the action.
Commentary
Vanuatu is a member of the United Nations, and as such has international obligations. As a member of the United Nations, Vanuatu has pledged to promote universal respect for and observance of human rights and fundamental freedoms.[7] While the Universal Declaration of Human Rights (adopted by the General Assembly of the UN in 1948) has no binding legal effect on States Parties, it has an undeniable moral force, and provides practical guidance to States in their conduct. Its value rests upon its acceptance by a large number of States, and it then becomes declaratory of broadly accepted principles of human rights within the international community.[8] Thus the following articles have no legal weight in Vanuatu, but are generally accepted as international human rights norms.
THE UNIVERSAL DECLARATION ON HUMAN RIGHTS
Finding 8: The Minister for Internal Affairs and the Principal Immigration Officer did not observe Vanuatu’s international obligations and breached Marc-Neil Jones’s human rights under Article 3.
6.8 Article 3 provides that everyone has the right to life, liberty and security of the person. By illegally and forcibly removing Mr. Jones from his residence and deporting him to Australia, the Minister and the PIO did not observe Mr. Jones’s right to liberty and security of the person.
Finding 9: The Minister for Internal Affairs and the Principal Immigration Officer did not observe Vanuatu’s international obligations and breached Marc-Neil Jones’s human rights under Article 7.
6.9 Article 7 states that [a]ll are equal before the law and are entitled without any discrimination to equal protection of the law.
The Minister and the PIO denied
Mr. Jones equal treatment under the law by refusing to notify him that an order was going to be made against him, and refusing to
give him written reasons why the order was going to be made. They denied him protection under the law by not affording him time to
exercise his statutory right to appeal to the Court.
Finding 10: The Minister for Internal Affairs and the Principal Immigration Officer did not observe Vanuatu’s international obligations and breached Marc-Neil Jones’s human rights under Article 8.
6.10 Article 8 provides that [e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. By denying him the right to appeal against the removal and detention orders, the Minister and the PIO were in breach of Mr. Jones’ basic human right under Article 8.
Finding 11: The Minister for Internal Affairs and the Principal Immigration Officer did not observe Vanuatu’s international obligations and breached Marc-Neil Jones’s human rights under Article 9.
6.11 One of the most basic principles of human rights is reiterated in Article 9, [n]o one shall be subjected to arbitrary arrest, detention or exile. It could certainly be argued that the Minister and the PIO acted arbitrarily in the arrest, speedy removal and deportation of Mr. Jones. There were other avenues available to the Minister and the PIO. If they truly believed that Mr. Jones was a threat to national security they could have detained him in prison and followed proper procedures under the law.
Finding 12: The Minister for Internal Affairs and the Principal Immigration Officer did not observe Vanuatu’s international obligations and breached Marc-Neil Jones’s human rights under Article 19.
6.12 The right to freedom of opinion and expression is fundamental in a democratic country. Article 19 states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Mr. Jones is the publisher of a newspaper which publishes articles critical of government policy. The Prime Minister and others have publicly stated that he had to be removed because of unbalanced reporting. Therefore, Mr. Jones’s right to hold an opinion and express it through the Vanuatu Trading Post was not being upheld by the Prime Minister and his accomplices, the Minister of Internal Affairs and the PIO.
7. RECOMMENDATIONS
7.1 The Minister of Internal Affairs be made aware of the limitations and boundaries of his jurisdiction and powers under the Immigration Act, and not sign a clearly unlawful removal order.
7.2 The Minister of Internal Affairs consult with the Attorney General, who is the Chief Legal Advisor to the government before signing a removal order.
7.3 The Attorney General or delegate not succumb to political pressure and draft illegal removal orders at the request of politicians.
7.4 The PIO consider his enabling legislation and ensure that any removal order is issued lawfully, taking due consideration the time frame for notice and for appeal.
7.5 Section 3 of the Immigration Act [Cap 66] be amended to reflect that the duty and obligation of the PIO is to uphold the Immigration laws of Vanuatu, and not to any other body to which he may have been seconded.
7.6 The Prime Minister and the Minister of Internal Affairs be fully familiar with international instruments to which Vanuatu is a signatory, particularly those relating to human rights, to avoid any future embarrassment to the government and the citizens of Vanuatu. This could be done in the form of a booklet containing a list of all instruments ratified by the Parliament of the Republic of Vanuatu.
| Dated the 31st day of October 2001 |
| HANNINGTON G ALATOA OMBUDSMAN OF THE REPUBLIC OF VANUATU |
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8. INDEX OF APPENDICES
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[1] The government of Barak Sope was defeated in a motion of no confidence debated by Parliament on Friday 13 April 2001. However, all
references to the government in this report are to the former government under Prime Minister, Barak Sope.
[2] A wealthy local businessman and patriarch of the Vietnamese community in Vanuatu.
[3] A prohibition order is a court order which is used to prevent a tribunal from exceeding its jurisdiction, or acting contrary to the
principles of natural justice, and also to control a minister in the exercise of his quasi-judicial functions.
[4] An order of mandamus is used to compel the performance of a public duty. In this case, the Minister had a duty to act according to
the Immigration Act.
[5] A Notice to a Witness under the Constitution and the Ombudsman Act is basically the same as a summons to appear. The penalty, upon application to the Court for failing to attend as required may not
exceed VT100.000.
[6] While the Constitution does not detail these restrictions an example might be the minimum amount of vatu a foreign investor was expected
to invest in Vanuatu, or the expectation that an individual would leave the country upon expiry of his tourist visa.
[7] The Universal Declaration of Human Rights Adopted by the United Nations General Assembly December 1948.
[8] Human Rights A Compilation of International Instruments (Vol 1 First Part) United Nations: New York and Geneva, 1994, xii.
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