Flaw

Law

Flaw and order

By Patrick Decloitre

Former Australian Chief Justice Sir Harry Gibbs has ruled in the Vanuatu Supreme Court that the country’s President’s pardoning of 26 prisoners on July 30 last year was invalid.

The Vanuatu government started pro ceedings against President Jean-Marie Leye saying that the pardon was invalid because correct procedure was not fol lowed and that it was not a proper exercise of the power of pardon, Attorney-General Patrick Ellum said.

The court ruling, which puts an end to a period of uncertainty since July last year, states that the procedure for the release was irregular and that the par dons were therefore a nullity. “But it has no effect on the president’s position,”

Ellum said.

“An order or declaration made to give effect to a pardon granted under article 38 of the Constitution must be a ‘constitutional order’ within this defini tion,” the ruling states. But no instrument concerning the release of the 26 prisoners was published in the Gazette, the court found.

However, the court refused to rule that this was improper exercise of the President’s discretion because the power was a discretionary power under article 38 of the island state’s Constitution.

Ellum says he now intends to con vince the President to issue instruments which, whilst they do not return the prisoners to jail puts their past release on a suspended sentence.

“Provided they keep out of trouble, they will stay out of prison, but if they get into trouble, then the court could send them back to complete their sen tences,” he said.

Ellum says if the President refuses to do this, then the Prime Minister has the power to do it by means of a licence under the penal code.

Vanuatu Judicial Service’s head, Chief Justice Charles Vaudin d’lmecourt, appointed Sir Harry on April 26 to hear the case filed by government against President Jean-Marie Leye.

The case, which was labelled by the Supreme Court as “purely academic”, was adjourned several times since last October.

In appointing Sir Harry, d’lmecourt said he had preferred to appoint some one from outside the country to hear the case.

He added it was a normal procedure between countries of the region to call foreign magistrates for some cases in the Supreme Courts or the Courts of Appeal.

Last October the Vanuatu Government initiated proceedings to obtain a judgement to clarify presiden tial and executive powers vested in the President.

President Leye freed 26 criminals last year using his constitutional power of pardon. The released criminals included notorious rapist Morris Ben who had accumulated 41 years imprisonment for numerous serious offences including eight years for a violent rape at knife point.

The President also released a Taiwanese fishing boat, the Lih Peng, confiscated in January 1994 when it tried to flee Port Vila without paying a US$3OO,OOO fine for illegal fishing.

The Supreme Court had ordered that the boat be seized and its crew kept in custody on board the ship. The vessel’s skipper, Lin Shiow Her, was pardoned by Leye and he left the island soon after his release.

Under Section 38 of Vanuatu’s Constitution, “The President of the republic may pardon, commute or reduce a sentence imposed on a person convicted of an offence. Parliament may provide for a committee to advise the President in the exercise of this func tion”.

According to figures quoted last October by d’lmecourt, 101 prisoners, some of whom had “committed the most serious imaginable sexual offences”, were released on licence or unconditionally in the year prior to last October.

“I’m flabbergasted,” Public Prosecutor John Baxter Wright who claimed that sentences imposed by courts have been reviewed frequently in the recent years.

To put a stop to this practice, the government started proceedings in court. ■