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Alleged Unlawful Re-Appointment of Some Dismissed Police Officers [2005] VUOM 1; 2005.01 (18 January 2005)

OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

ALLEGED UNLAWFUL RE-APPOINTMENT
OF
SOME DISMISSED POLICE OFFICERS

REPUBLIC OF VANUATU

PUBLIC REPORT
ON THE
ALLEGED UNLAWFUL RE-APPOINTMENT OF
SOME DISMISSED POLICE OFFICERS

SUMMARY

This public report describes the conduct of the former Commissioner of Police, Mr Peter Bong to re-instate some police officers who have been dismissed from the Police Force service for committing offences against discipline.

It also indicates that the Commissioner had misinterpreted section 33 of the Police Act (Cap 105) in order to re-instate the following police officers:

The Ombudsman finds that the conduct of the former Police Commissioner, Mr Peter Bong, in reinstating the 12 dismissed Police officers for serious offences such as absence from duty, improper use of police property, forgery, alcohol abuse, and assault brings discredit and disrespect upon the force .

The ombudsman also finds that despite the discretionary power granted to the Police Commissioner under Section 33(3) of the Police Act, the Commissioner should have considered very carefully the decision of the Court or the Police Service Commission handed down on each ex-members of the Vanuatu Police Force. He should not have used this discretionary power to reinstate dismissed officers and members of the Force who have committed serious offences against discipline.

The Ombudsman recommends that the following sections of the Police Act [CAP 105] which provides discretion to the Commissioner, should be amended, in particular, sections 33 (3); 62 (2); 63 (2); 64(3);65 (1); 70(1); 71(1).

TABLE OF CONTENTS

SUMMARY
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act of 1998 allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Conduct of the Former Commissioner of Police, Mr Peter Bong, and the Police Service Commission.

The Ombudsman can also look into defects in laws or administrative practices, including the Police Act (Cap 105) and Police Regulation

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this public report is to present the Ombudsman’s findings and recommendations regarding the re-appointment of some dismissed police officers to the Police Force.

2.2 The scope of this investigation is to establish the facts about the alleged unlawful re-appointment of some Police officers in the force and to determine whether the former Commissioner of Police, Mr Peter Bong’s conduct to re-appoint these officers was proper.

2.3 The scope also includes that the Ombudsman determine whether section 33 (3) of the Police Act (Cap 105) which provides discretion to the Commissioner of Police is defective.

2.4 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

The relevant laws, regulations and provision related to this matter are mentioned in appendix G.

4. OUTLINE OF EVENTS

4.1 In November 1996, following the "VMF Stand Down", some of the VMF officers who were involved in this operation, had been arrested and detained in prison awaiting their court hearing . After the court hearing some members were suspended and terminated.

4.2 The Office of the Commissioner under the leadership of the former Commissioner of Police, Mr Peter Bong, opted to re-instate 12 ex members of the Force who had committed various offences against discipline and have been dismissed from the Force. Their names and the nature of their dismissal are as follows:

See appendix A

4.3 On 19 August, 1997 a complaint was lodged to the Ombudsman’s Office alleging that the re-appointment of these officers appeared to have breached the Police General orders and section 33 of the Police Act (Cap 105).

4.4 On the receipt of the complaint, the Ombudsman wrote to the former Commissioner, Mr Peter Bong, under section 16(3) of the Ombudsman Act No 14 of 1995, on his intention to conduct an investigation into this allegation.

4.5 Pursuant to section 17(2) of the Ombudsman Act of 1995, he requested Peter Bong to furnish him with names of officers who were re-appointed with copies of their appointment letters.

4.6 No response was received from the Mr Peter Bong, until 11th May 1998, when the Deputy Commissioner at that time, Mr John Bill Iorogen appeared in person in the Ombudsman’s Office to respond to the allegation raised.

4.7 In his testimony, Mr Iorogen indicated to the Ombudsman that under the Force requirement, officers who had a criminal record could not be re-instated into the Force.

4.8 On 22 June 1998, the Ombudsman sent another letter to the former Commissioner outlining the breach of section 33 of the Police Act (Cap 105).

4.9 In response to the Ombudsman’s inquiry, the Police’s legal representative, Mr Salling Stephen stated that the Commissioner has a discretionary power to re-appoint dismissed officers. See appendix B.

4.10 On 29 September 2003, the Ombudsman then wrote a letter to the Attorney General for clarification of the provision of section 33 of the Police Act which was being disputed between the Ombudsman’s Office and the legal representative of the Police Force.

4.11 In response to the Ombudsman’s request, the Office of the Attorney General disagreed with the police legal opinion. He agreed with the Ombudsman’s interpretation that police officers could not be re-instated after dismissal from the force for serious offence committed . See appendix C

4.12 In a letter dated 9 February 2000 to the Ombudsman, the Chairman of the Police Service Commission stated that whether the decision to appoint ex Police officer could be questionable, the decision of the Commissioner at that time was taken to maintain the public confidence for the insecurity as the tension at that time was too risky . Refer to appendix D.

4.13 On 8th August 2001 the Ombudsman wrote a letter to the Minister of Internal Affairs over this matter and requested him as to whether he could provide his view on the interpretation of the wording of section 33(3) of the Police Act (Cap 105). See appendix E

4.14 In response to the Ombudsman’s request on 26 September 2001, Minister, Honourable Joe Natuman agreed with the Ombudsman’s view that the re-appointment of the dismissed officers would bring discredit upon the Police Force. However, he concluded that since this section was ambiguous, it was in his view that this section be amended. See appendix F

5 RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to preparation of this public report to give the individuals mentioned in this report another opportunity to respond. However it is to be noted that none of them had attempted to respond to the working paper produced.

6. FINDINGS

6.1 Finding 1: The conduct of the former Police Commissioner, Mr Peter Bong, in reinstating the 12 dismissed Police officers for serious offence could bring discredit upon the Force .

The Ombudsman found that Police Commissioner may have breached the police Act . The integrity of the force is called into question when reinstating the officers who were dismissed from the force for committing offence against discipline such as absence from duty, improper use of police property, forgery, alcohol abuse, and assault.

Those officers include Sam Willie, Isso Kapum, Kalfabun Clinton, Albert Frank, Roy Noal, Apia Willie Toara, Thomas Arnold Vira, Timothy Noviel, William Collin, Kenneth Siro, Risa Fred Henry and Maleb Hugues

6.2 Finding 2: The discretionary provision in section 33(3) of the Police Act was not exercised by the Commissioner of Police in a manner that would bring respect and confidendence to the force.

Despite the discretionary power granted to the Police Commissioner under Section 33(3) of the Police Act, the Commissioner did not consider carefully the decisions of the Court and the Police Service Commission made on each ex-member of the Vanuatu Police Force. In re-instating the ex-members, the discretionary power of the Commissioner was mis-used.

7. RECOMMENDATION

7.1 The Ombudsman recommends that the following sections of the Police Act [CAP 105) which provides discretion to the Commissioner, to be amended. Sections 33 (3); 62 (2); 63 (2); 64(3);65 (1); 70(1); 71(1)

Dated the 4 December 2006

Iolu ABBIL
ACTING OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A List of Police Officers who were re-appointed in Force

B Response from Mr Salling Stephen, a legal officer from the police Force.

C Letter from the Sate Law dated 19th October 1999.

D Letter from the Chairman of Police Service Commission, Mr Luc Baba.

E Letter from the Ombudsman to the Minister responsible of police.

F Response from the Honorable Joe Natuman, Minister of Internal Affairs.

G Relevant Laws and Regulation.

APPENDIX F

RELEVANT LAWS AND REGULATION

Police Act (Cap 105)

Section 10 (2) Others Senior officers shall be appointed by the Commission, acting on the recommendation of the Commissioner.

(3) Subordinate officers and constable shall be appointed by the Commissioner.

Section 33 (1) Any member may be dismissed from the Force in accordance with the provisions of this Act if he has been-

(a) found to have committed an offence against discipline; or

(b) convicted of an offence against any written law.

(2) Such dismissal shall take effect from the date of such finding or conviction or from such later date as the Commissioner or Commission, as the case may de decides.

(3) A member who has been dismissed from the Force under the provisions of this section may not be re-appointed.

Section 62 (2) The commissioner may in respect of any findings made by the a Senior officers under the provisions of the section 59 (1) whether or not he has received an appeal-

(a) confirm, vary or quash any finding or punishment imposed as the result of such inquiry, or;

(b) order the holding of fresh inquiry by a senior officer other that the officer who held the original inquiry.

Section 64 (3) A subordinate officer who has been interdicted shall receive such proportion of his pay not being less than half as the Commissioner may decide, (Emphasis supplied )

Section 65 (1) The Commissioner may reduce in rank or dismiss from the Force any subordinate officer who has been convicted by a court or any offence under this or any other act, unless such member has successfully appealed from such findings.

Section 70 (1) The Minister may, on the recommendation of the Commissioner and at any time, interdict from duty any senior officer pending - (Emphasis supplied )

Section 71 (1) The Commission may on the recommendation of the Commissioner, reduce rank or dismiss from Force .. (Emphasis supplied)