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Vanuatu : oscillation entre diversité et unité

 | 
Michèle Boubay-Pagès

L'unité garante de la diversité ?

The common law legacy designed to improve public accountability in Vanuatu

Narelle Bedford

Texte intégral

Le Vanuatu, tout en oscillant entre diversité et unité pour mettre en pratique les idéaux de la responsabilité publique, dispose d’une base solide et d’institutions civiles aptes à régler cette question nationale. La tradition de la Common Law a fourni au Vanuatu une base pour le contrôle de la comptabilité publique. Le Vanuatu ayant un système pluriel issu également du Kastom et du droit civil français, d’autres domaines peuvent aussi bénéficier de ce pluralisme. La Constitution de la République de Vanuatu et des lois spécifiques ont créé un système détaillé de contrôle des comptes publics. Il n’y a pas de solution simple, économique ou rapide pour améliorer le contrôle des comptes publics au Vanuatu. De solides bases de construction dont déjà présentes. Il s’agit de les associer au rôle nécessaire des nations et des organisations régionales ainsi qu’à celui des partenaires de développement.

Profil de l’auteur

Narelle Bedford est professeure adjointe à l’Université de Bond, Faculté de Droit, dans le Queensland en Australie. Elle a obtenu ses diplômes de Droit en Australie et est inscrite au barreau en Australie. Narelle détient des diplômes en économie, droit et affaires étrangères. L’Université Nationale Australienne lui a décerné son Master en Droit Public. Elle est actuellement inscrite en doctorat à l’Université du NSW, où elle a été récompensée du Prix Sir Anthony Mason pour un Doctorat en Droit Public afin de l’aider dans ses recherches. Elle a été diplomate australienne en Malaisie et a exercé diverses fonctions pour le Service Public Australien. Elle s’est ensuite tournée vers une carrière universitaire : elle a enseigné le Droit à l’Université du Queensland, l’Université Nationale du Samoa et l’Université Charles Sturt. Elle a vécu aux Samoa et en Nouvelle-Calédonie et a voyagé dans les îles du Pacifique. Professeure en Droit international et en Droit comparé, Narelle enseigne les droits administratifs australien et canadien à l’Université de Bond à tous les cycles universitaires.

° ° °

Vanuatu, while oscillating between diversity and unity in fulfilling the ideals of public accountability, has a sound foundation and civil institutions to assist national progress on this issue. The common law tradition has provided Vanuatu with a foundation for public accountability, and although not covered in detail similar points can be made in respect of the other elements of the pluralistic system in Vanuatu arising from the Kastom and French civil law legacies. The Constitution of the Republic of Vanuatu and specific legislation has created a detailed public accountability system. There is no simple, cheap or quick solution to improving public accountability in Vanuatu, but rather it is a process of building upon already solid foundations combined with domestic support needed as well as that from regional nations and organisations, and development partners.

Author Profile

Narelle Bedford is an Assistant Professor in the Faculty of Law, Bond University, in Queensland Australia. She gained her legal qualifications in Australia and is admitted to legal practice in Australia. Narelle holds undergraduate degrees in Economics, Law and Foreign Affairs. Her Masters of Laws in Public Law was conferred by the Australian National University and she is currently enrolled in a PhD at the University of New South Wales where she was awarded the Sir Anthony Mason PhD Award in Public Law to assist her research. She has served in Malaysia as an Australian Diplomat and in various roles for the Australian Public Service, before transitioning into an academic career. She has also taught law at the University of Queensland, National University of Samoa and Charles Sturt University. She has lived in Samoa and New Caledonia, and travelled extensively throughout the Pacific Islands. An internationalist and comparativist legal academic, Narelle convenes courses in both Australian and also Canadian administrative law at Bond University at undergraduate and postgraduate levels.

  • 1 On hybridity, see generally S. Donlan, To Hybridity and beyond: Reflections on legal and normative (...)

Vanuatu makes an interesting case study of a nation oscillating between diversity and unity for many reasons; primary among them is its status as a relatively young, independent country that has a plurality of legal systems in its history and modern governance. Whilst acknowledging the deep importance of customary law and French civil law in the hybridity of laws in Vanuatu, the perspective adopted in this analysis will be founded in the common law tradition1. The particular subject matter for analysis is the common law legacy for Vanuatu in the broad area often called “public law” (as distinct from private law). Public law concentrates on the framework established for government in order to safeguard a fair and just society and the mechanisms which ensure that legislation, decisions and actions of government are made in accordance with law. This concept of requiring governments to be responsible for their actions and decisions is termed “public accountability’. In common law nations, it has been underpinned by foundational doctrines and by establishing a system of complementary institutions to uphold those doctrines.

The article will explain foundational common law doctrines such as the separation of powers and the rule of law and will then consider the specific provisions of the Vanuatu Constitution that enshrine these public accountability principles and establish public accountability mechanisms and institutions. The specific institution of the Ombudsman will be considered in detail, and also the Leadership Code Act, as well as recent moves to implement a national right to information policy in Vanuatu. The article will then provide some concluding observations about the public accountability system in Vanuatu.

* * *

a) Foundational doctrines such as the separation of powers, representative government and the rule of law

  • 2 The Spirit of the Laws, (1748).

1The common law tradition has traditionally divided public power into three branches – the legislature, the judiciary and the executive. This division is founded on the assumption that concentration of public power is a negative attribute that may lead to abuse of power or corruption. At a theoretical level the French political philosopher, Baron de Montesquieu, is regarded as a seminal progenitor of the tripartite separation of powers. Montesquieu described the tripartite separation of political power among a legislature, an executive, and a judiciary2. Montesquieu argued that a system designed with a form of government which was not excessively centralized in all its powers was more stable and less prone to arbitrariness as compared to a single monarch or similar ruler.

2The common law evolved across centuries and various jurisdictions, and in conformity with this theory, came to regard public power as ideally shared and exercised by different branches, with each having a specific role and also balancing the interests of each other. This concept is termed the separation of powers and informally refers to “checks and balances”.

3The legislative branch, usually manifested in a Parliament, is responsible for making laws by proposing, negotiating and passing legislation in the form of Statutes or Acts. This is a powerful law-making role and is justified by the doctrine of representative government. Representative government is the democratic concept that people elect their representatives who then govern on their behalf in accordance with the law.

  • 3 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 83.

4The executive branch is composed of all the governmental officers and bodies with responsibility for implementing the laws made by Parliament. In a modern society this has come to mean in practice the Ministers, the public service or bureaucrats and all departments and agencies. This model is termed the “Westminster system’ recognising its origins in England3. The Prime Minister and Ministers are members of the legislature, but are also seen to have responsibilities as part of the executive branch. In small island nations the links between the executive and the legislature can be strong, with close relationships existing that at a theoretical level may cross the divide between the branches and undermine the independence of the separation of powers principle.

5Finally the judiciary is the branch responsible for resolving disputes about the legality of legislation and interpreting the constitution, as well as disputes between citizens. The judiciary are also responsible for the enforcement of the law on those who offend and through judicial review of government decisions and actions for policing the proper, legal exercise of public power. In this way the legislative and executive are over-sighted by the judiciary, and in turn the executive have power to appoint judicial office holders.

b) The common law and public accountability

  • 4 Corrin-Care, Corrin-Care, Jennifer, Cultures in conflict : The role of the common law in the South (...)

6In addition to these fundamental structural features, common law nations have also evolved various institutions to uphold and provide further strength to public accountability principles. Typically a constitution (whether written or unwritten) will exist as the supreme source of law in the nation4. Additionally institutions such as the Ombudsman, Auditor-General and Human Rights Commissions may also exist. Other parts of the broad accountability system include Public Prosecutors, Public or Legal Aid Solicitors and Law Reform Commissions. It is symmetrical to note that many of these institutions exist in the French civil law system too – to provide one specific example the Ombudsman equivalent is le Médiateur de la République.

c) Vanuatu Constitution

  • 5 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 68.

7The separation of power theory was given practical effect in the structuring of power in written constitutions throughout most of the Pacific5. The Constitution of the Republic of Vanuatu 1980 (“the Constitution”) continued this approach, but with an indigenous adaptation to recognise Vanuatu’s unique history prior to independence. Thus the Constitution is divided into various chapters, containing the traditional three branches under the separation of powers with Parliament in Chapter 4, the Executive in Chapter 7 and the Judiciary in Chapter 8. Several notable unique refinements were added to this traditional common law model as adopted in Vanuatu. Most notable is the priority and importance accorded to the National Council of Chiefs in Chapter 5, which is located immediately after Parliament in the Constitution. The National Council of Chiefs is the major body responsible for customary law or “kastom”.

8Also notable are the provisions of Chapter 1 titled “The State and Sovereignty”. Within this chapter are provisions dealing with supremacy of laws, languages, national sovereignty, electoral franchise and political parties. The Constitution is stated in section 2 to be the “supreme law of the Republic of Vanuatu” thus clearly recording that in the event of any inconsistency between laws, including kastom, the Constitution will prevail. Section 3 states that Bislama is the national language, while Bislama, English and French are the official languages. Representative government is entrenched in section 4 which proclaims that “national sovereignty belongs to the people of Vanuatu which they exercise through their elected representatives”.

  • 6 S.85 of the Constitution of the Republic of Vanuatu 1980.

9Written constitutions must contain provisions prescribing the necessary process to be followed for amendments. Such provisions are contained in Chapter 14 of the Constitution, which prescribes that at least a two-thirds majority is needed to pass a Bill to amend the Constitution and this requires a quorum of at least three quarters of the Members of Parliament to be present and voting6. Furthermore, three key subject areas in the Constitution (language status, electoral system and the Parliamentary system) can only be amended if the Bill has first achieved simple majority support in a national referendum.

  • 7 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 68.

10Written constitutions were common upon independence and the obtaining of statehood in the new nations of the Pacific Islands7 and as such, in part could be termed initially aspirational by nature. This is evidenced by the fact that many nations took a period of time to fully implement provisions contained in constitutions. It is argued that this is the situation in reality in Vanuatu in respect of two key constitutional provisions which assist to enshrine the concept of public accountability – the Ombudsman and the Leadership Code for reasons explained in the following analysis. The Constitution was adopted in 1980, and yet laws to give effect to these two items did not pass Parliament for well over a decade.

d) The Ombudsman

  • 8 Chapter 9 Administration, Part II The Ombudsman, ss.61-65.

11The Constitution contains specific provisions entrenching the office of the Ombudsman and giving it enshrined constitutional status8. If not established in a constitution, the other alternative would be a normal piece of legislation, which could be more easily amended or repealed compared to the process outlined above for a constitutional provision. The Constitution mandates that wide consultation, including with the National Council of Chiefs and the Local Government Councils, take place before the appointment of an Ombudsman for a five year term.

  • 9 Ibid, s. 62(1).
  • 10 Ibid, s.62(2) but not the President of the Republic, the Judicial Service Commission or the Supreme (...)
  • 11 Ibid, ss 64 & 65.

12The powers of the Ombudsman to make enquiries may be engaged as a result of a complaint from a member of the public ; a request by a Minister, a Member of Parliament, the National Council of Chiefs or a Local Government Council or, most significantly, by the own initiative of the Ombudsman9. Importantly, s.65 of the Constitution explicitly states that the Ombudsman is not subject to direction or control by any other person, thus providing significant constitutional protection of institutional independence. The Ombudsman is conferred jurisdiction to enquire into all public servants, public authorities and ministerial departments10. The remaining constitutional provisions cover reports of the Ombudsman and a right of citizens to access services by the administration (or executive) of Vanuatu in their own language11. In the latter the Constitution confers a unique and central role on the Ombudsman in enforcing multilingualism in Vanuatu and further requires that there must be an annual report to Parliament on the observance of multilingualism and measures to ensure respect of the same.

  • 12 Act 14 of 1995, commencing on 18 September 1995.
  • 13 The first Ombudsman was Marie-Noëlle Ferrieux-Patterson, who served from 1994 à 1999 but was not re (...)
  • 14 Virelala v Ombudsman [1997] VUSC 35; Act 27 of 1998, commencing on 11 January 1999.
  • 15 Transparency International, National Integrity System Update – Ombudsman and Office of the Auditor- (...)

13To supplement these Constitutional provisions, in 1995 the Parliament of Vanuatu passed the Ombudsman Act12. The first Ombudsman was appointed in 1994, relying upon the Constitutional provisions for jurisdiction and authority until the Act was passed13. Following litigation unsuccessfully challenging the constitutional validity of actions taken under the Act, it was subsequently repealed and replaced by a new Act in 199814. It conferred the Ombudsman with a standard range of powers (although Transparency Vanuatu claim the powers were more restrictive compared to the earlier version of the Act) and prescribes procedures to ensure fair treatment15.

  • 16 S.34(2) of the Ombudsman Act; PacLii database www.paclii.org; and for further information on the su (...)

14The final conclusions and recommendations arising from an investigation by the Ombudsman are formally issued in a written report which is made public, unless it would be contrary to public security or the public interest. It should be noted that no reports have been published electronically on the Pacific Islands Legal Information Institute’s database since April 2012, or on the Vanuatu Ombudsman website16.

  • 17 S.11(1)(d) & (e).
  • 18 S.34(4) of the Leadership Code Act. Powers which are limited to recommendations only is a common fe (...)

15In an important addition to traditional responsibilities of an Ombudsman, the Vanuatu Ombudsman is also empowered to investigate alleged breaches of the Leadership Code Act17. Generally, the most significant limitation of the powers of the Ombudsman (and related offices globally) is that they are traditionally only able to make formal recommendations and cannot compel or enforce action by government. However the position in Vanuatu is nuanced in respect of the Leadership Code, where the Ombudsman can apply to the Supreme Court to enforce compliance with powers of investigation18.

e) Leadership Code Act

  • 19 Ss. 66-68.

16Chapter 10 of the Constitution expressly provides for a “Leadership Code”covering the conduct of leaders. It aims to prevent conflicts of interest, and uphold the integrity of government in Vanuatu19. The definition of leader extends to include the President, Prime Minister, Ministers, Members of Parliament and public servants.

  • 20 Act 2 of 1998, commencing on 7 September 1998 and also Act 7 of 1999.
  • 21 S. 34.
  • 22 S.34(4).
  • 23 Tapangararua v Public Prosecutor [2016] VUCA 10.

17The Parliament of Vanuatu passed the Leadership Code Act in 199820, so there was a considerable period of delay (1980 until 1998) in implementing the constitutional requirement to give effect to its provisions. It is possible to conclude therefore that at least originally the standards contained in the Constitution were initially aspirational. The Ombudsman, while also defined as a leader, has an express role in the investigation of complaints under the Code21. The powers conferred on the Ombudsman under the Code are extensive and capable of enforcement by application to the Supreme Court22. A recent decision by the Vanuatu Court of Appeal upheld an earlier decision by the Supreme Court regarding prosecutions under the Leadership Code Act23.

f) National right to information policy

  • 24 Reported by Loop Vanuatu on 20 August 2015 at www.loopvanuatu.com and the Pacific Media Assistance (...)
  • 25 Commonwealth Human Rights Initiative, Analysis of the republic of Vanuatu draft Freedom of Informat (...)

18In late 2015, national media and regional media organisations reported that the Vanuatu government, through the Office of Government and its Chief Information Officer, would be progressively implementing the National Right to Information Policy with associated legislation expected to pass Parliament in the imminent future24. The implementation of a freedom of information regime, accompanied by a public awareness campaign, should further strengthen the public accountability system in Vanuatu by providing citizens with a right and formal processes to access government held information. The need for legislation to be passed must remain a pressing priority as a counter-balance to the ongoing existence of the Official Secrets Act 1980 and its emphasis on the protection of classified material. An earlier proposed draft statute, the Freedom of Information Bill 2006, prepared by Transparency International Vanuatu and Media Association Blong Vanuatu did not obtain parliamentary passage or approval. The Commonwealth Human Rights Initiative while encouraging of the draft prepared a report that contained recommendations for improvement25. To date no such legislation has been introduced into Parliament.

g) Other public accountability institutions

19There are also a broad range of institutions which are regarded as having a role in upholding public accountability. In Vanuatu these include the Auditor-General, the Public Prosecutor, the Public Solicitor, the Public Service Commission, the Electoral Commission and the Law Commission. Some of these institutions, similar to the Ombudsman, are established in the Constitution, such as the Auditor-General, the Electoral Commission, the Public Prosecutor, the Public Solicitor and the Public Service Commission, although none are given the same prominence as the Ombudsman which has its own Part in Chapter 9.

  • 26 Chapter 4 Parliament, s.25 Public Finance refers to the Auditor-General (while ss.18 -20 refer to t (...)
  • 27 Originally introduced as Act 6 of 1998, with a commencement date of 1 July 1998.
  • 28 Ss. 25 & 27.
  • 29 Ibid, s.25. The responsibility for preparing the reports in the first instance is conferred on the (...)
  • 30 Ibid, s.27.

20As this analysis is focused on public law (rather than criminal or electoral law), the Auditor‑General will be considered as a small case study, given its specific role in public accountability. The Auditor‑General has a constitutional role to impartially monitor and report on government expenditure26. Unlike the Ombudsman, the Auditor‑General does not also have a separate Act containing further protections and duties of office. It is referred to twice in the Public Finance and Economic Management Act27 however the specific provisions which confer powers on the Auditor‑General are limited and functional in the brief scope28. In respect of the Auditor‑General, the Act provides only that statements of accounts29 and Ministry accounts30 must be prepared and sent to the Auditor‑General who is then required to forward them to the Speaker of Parliament for tabling in Parliament.

21An independent, external review of the Auditor‑General’s activities concluded that;

  • 31 Brown, Alistair, The milieu of government reporting in Vanuatu, (2011) 23(2) Pacific Accounting Rev (...)

22In recent times, the absence of an Auditor‑General and a lack of recent Auditor‑General reports have meant that the Auditor‑General Offices has not provided Parliament with independent assurance through reporting that government activities are carried out, and accounted for, consistent with Parliament’s original intentions31.

h) Civil/Community Organisations

  • 32 Retrieved from http://www.acauthorities.org/news/new-anti-corruption-group-set-vanuatu.

23Additionally, civil organisations and local branches of global bodies also have a role in promoting public accountability in Vanuatu. For example, the Vanuatu Association of Non-Governmental Organisations has established a new group, the Vanuatu Corruption Commission. It explained that the formation of the Commission was prompted by recent public scandals32. Other domestic groups which have made public statements following developments of concern in public accountability terms are Youth Against Corruption Vanuatu and Vanuatu’s Women Against Crime and Corruption.

  • 33 Transparency International, National Integrity System Update – Ombudsman and Office of the Auditor- (...)
  • 34 Ibid.
  • 35 Transparency Vanuatu News Release dated 31 October 2013, www.transparencyvanuatu.org.

24The most prominent international organisation operating locally in Vanuatu is Transparency International Vanuatu which, for example, issued a series of updates on the so‑called “National Integrity System”33. Three reports (all issued in 2013) contained positive recognition of the existing accountability institutions and suggestions to assist the achievement of their potential34. The key role of development partners (principally France, Australia and New Zealand) providing targeted financial and public assistance can be demonstrated by the example of the French Embassy in Port Vila granting funding of $390 000 vatu to Transparency Vanuatu to support good governance and permit the printing of three information booklets in Bislama35.

i) Recent developments

  • 36 Originally introduced as JR 20 of 1980, with a commencement date of 30 July 1980.

25The Vanuatu Law Commission also has an important role in public accountability through its capacity to undertake inquiries and issue recommendations for law reform. The Law Commission is established by a specific Act – the Law Commission Act36.

  • 37 Vanuatu Law Commission, A review of the Ombudsman Act, Issues Paper No.01 of 2015 & Vanuatu Law Com (...)

26In 2015, the Vanuatu Law Commission published two public Issues Papers – the first into the Ombudsman Act and the second into the Leadership Code Act37. In respect of the Leadership Code Act, the referral to the Vanuatu Law Commission was made by the Office of the Ombudsman.

27The report into the Ombudsman Act covered six main issues:

- Qualifications and conditions of employment;

- Function of the Ombudsman;

- Complaints and proceedings;

- Immunities;

- Officers and other staff of the Ombudsman; and

- National Human Rights Committee.

28In respect of the issues paper on the Leadership Code Act, there were also six areas identified for consideration:

- Definition of leaders and other terms ;

- Duties of leaders;

- Braches of Leadership Code;

- Annual reports;

- Investigation and prosecution of leaders; and

- Punishment of leaders.

29The issues papers do not contain any recommendations but rather and appropriately do pose questions for consideration. Public submissions for both issues papers closed on 26 March 2016, and a final report is expected to be issued in the future. This process of an independent expert body conducting public enquiries into key areas of law reform is another part of the public accountability system in Vanuatu. One limitation of the Law Commission however, is that there is no statutory compulsion for the government either to adopt the final recommendations nor indeed to respond to them within a set timeframe.

  • 38 Nari v Republic of Vanuatu [2015] VUSC 132, Public Prosecutor v Moana Kalosil and others - Judgment (...)

30Other recent events worth of brief comment include the political drama which unfolded in late 2015 involving the conviction of a number of Members of Parliament and then the subsequent pardoning of the same by the Acting President (whilst the President was absent overseas), and issuing of a suspension order against the Ombudsman by the Acting President at the same time. The legality of the latter order has been questioned by the Ombudsman whilst the former may be technically constitutional although questionable in terms of public confidence in the political system. The Vanuatu Supreme Court was involved in a number of related cases which intersected with these developments, illustrating the close links between political developments and the importance of an independent judiciary38. Ultimately these complex legal issues did not require authoritative determination as a snap election was called for 22 January 2016 and a new government was elected by the voters in Vanuatu.

Concluding observations

31Public accountability is now a critical, universal and established concept in global development and global public law discourse. This is evidenced by the world‑wide trend to implementation and establishment of public accountability institutions whether in nations with common law or civil law jurisdictions. This analysis and the recent developments in Vanuatu underline the importance of public accountability institutions, and the sometimes difficult path taken by those who perform public accountability duties. Such office holders and the staff who support them need public political support and sustained government funding. There is also a key role for public leaders (in either formal or informal civil organisations), lawyers, law students and legal academics. There is no simple, cheap or quick solution to improving public accountability but rather it is a process of building upon already solid foundations combined with domestic support as well as that from regional nations and organisations, and development partners.

32This analysis in not intended in any way as a criticism of the progress made by Vanuatu in terms of strengthening public accountability, but rather a formal recording of the solid foundations provided by the Constitution and other mechanisms outlined in the foregoing analysis, and the potential for further strengthening of the national commitment to the ideals of public accountability.

33This analysis has outlined how the common law tradition has provided Vanuatu with a foundation for public accountability, and although not covered in detail similar points can be made in respect of the other elements of the pluralistic system in Vanuatu arising from the Kastom and French civil law legacies. Vanuatu, while oscillating between diversity and unity in fulfilling the ideals of public accountability, has a sound foundation and the necessary civil institutions to assist national progress on this issue.

Bibliographie

Books, Articles, Research Papers, Reports & Speeches.

M-B. Annandale, A comparison and contrast of the role of the Ombudsman in Vanuatu and Samoa: Who, what and how can they investigate? Journal of South Pacific Law, 1997, N° 1, pp. 1-14.

Brown, Alistair, The milieu of government reporting in Vanuatu, Pacific Accounting Review, 2011, N° 23(2), pp. 165-185.

Commonwealth Human Rights Initiative, Analysis of the Republic of Vanuatu Draft Freedom of Information Bill 2006 and Recommendations for Amendments, 2006.

Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, Palgrave Macmillan, Australia, 2011.

Corrin-Care, Jennifer, Cultures in conflict: The role of the common law in the South Pacific, Journal of South Pacific Law, 2002, N° 6(2), pp. 1-28.

Cox, Marcus et al, The unfinished state: Drivers of change in Vanuatu, Australian Agency for International Development, Australia, 2007.

Donlan, Sean, To Hybridity and beyond: Reflections on legal and normative complexity, in Mixed legal systems, East and West, eds Palmer V et al, Ashgate, 2015, pp. 17-39.

Farran, Sue, Pacific Punch: tropical flavours of mixedness in the island Republic of Vanuatu in Mixed legal systems, East and West, eds Palmer V et al, Ashgate, 2015, pp. 123-152.

Forsyth, Miranda, A bird that flies with two wings: Kastom and state justice systems in Vanuatu, ANU ePress, Australia, 2009, pp. 1-298.

Hassall, Graham, Governance, legitimacy and the rule of law in the South Pacific, in Passage of change : Law, society and Governance in the Pacific, eds Anita Jowitt and Dr Tess Newton Cain, ANU Press, 2003, pp. 51-69.

Hill, Edward R, The Vanuatu Ombudsman, in Passage of change: Law, society and Governance in the Pacific, ed Anita Jowitt and Dr Tess Newton Cain, ANU Press, 2003, pp. 71-92.

Hill Edward R, Ombudsman of Vanuatu – Digest of public reports 1996-2000, UNDP Governance and accountability project, 2001, pp. 1-8.

Jowitt A & Hicks NF, Human rights and transparency of government action in Vanuatu – a comment, Journal of South Pacific Law, 1997, N° 1, pp. 1-6.

Keith KJ, Development of the role of the Ombudsman with reference to the Pacific, Speech delivered at the 22nd Australasian and Pacific Ombudsman Regional (APOR) Conference, Parliament House, Wellington, New Zealand, 9-11 February 2005, pp. 1-14.

Lal R, The diversified role or strict role of an Ombudsman: A comparison in the roles of the Ombudsman in Vanuatu and Fiji, Journal of South Pacific Law, 1997, N° 1, pp. 1-17.

Morgan, Wesley, Overlapping authorities: Governance, leadership and accountability in contemporary Vanuatu, Journal of South Pacific Law, 2013, N° 1, pp 1-22.

Muria, Sir John, The role of the courts and legal profession in Constitutional and political disputes in the Pacific Islands Nations, Address at the Graduation Celebration, University of South Pacific, Emalus Campus, Port Vila Vanuatu, 4 December 2001

Paterson, Don, Legal challenges for small jurisdictions in relation to privacy, freedom of information and access to justice, Journal of South Pacific Law, 2000, N° 4, pp. 1 - 14.

Prasad, Devika, Strengthening democratic policing and accountability in the Commonwealth Pacific, International Journal on Human Rights, 2006, N° 5, pp. 109-131.

Rawlings, Gregory, Accountability and oversight : The machinery of Leadership Codes in the Pacific, Australian National University, 2006, pp. 1-40.

Satyanand, Judge Anad, Growth of the Ombudsman concept, Journal of South Pacific Law, 1999, N° 3, pp. 1-9.

Transparency International, National Integrity System Update – Ombudsman and Office of the Auditor-General, Update #3 27 September 2013; National Integrity System Update – Electoral Candidates and Integrity, Update #2 20 September 2013 & National Integrity System Update #1 26 August 2013.

Vanuatu Law Commission, A review of the Ombudsman Act, Issues Paper No.01 of 2015.

Vanuatu Law Commission, Leadership Code Act, Issues Paper N° 02 of 2015.

Constitution, Legislation & Policies

Constitution of the Republic of Vanuatu 1980

Leadership Code Act 1998

Ombudsman Act 1998

Right to Information Policy

Cases

Jimmy v The Ombudsman [1996] VUSC 26

Nari v Republic of Vanuatu [2015] VUSC 132

Public Prosecutor v Moana Kalosil and others - Judgment as to verdict [2015] VUSC 135

Public Prosecutor v Moana Kalosil and others - Sentence [2015] VUSC 149

Tapangararua v Public Prosecutor [2016] VUCA 10

Virelala v Ombudsman [1997] VUSC 35

Websites

Ministry of Justice & Community Services, Government of Vanuatu www.mjcs.gov.vu

Pacific Islands Legal Information Institute www.paclii.org/countries/vu

Transparency Vanuatu http://www.transparencyvanuatu.org/

Vanuatu Office of the Government Chief Information Officer www.ogic.gov.vu

Vanuatu Law Commission www.lawcommission.gov.vu

Notes

1 On hybridity, see generally S. Donlan, To Hybridity and beyond: Reflections on legal and normative complexity, in Mixed legal systems, East and West, eds Palmer V et al, (2015).

2 The Spirit of the Laws, (1748).

3 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 83.

4 Corrin-Care, Corrin-Care, Jennifer, Cultures in conflict : The role of the common law in the South Pacific, (2002) 6(2) Journal of South Pacific Law 1.

5 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 68.

6 S.85 of the Constitution of the Republic of Vanuatu 1980.

7 Corrin, Jennifer & Paterson, Don, Introduction to South Pacific Law, (2011) Cavendish, 68.

8 Chapter 9 Administration, Part II The Ombudsman, ss.61-65.

9 Ibid, s. 62(1).

10 Ibid, s.62(2) but not the President of the Republic, the Judicial Service Commission or the Supreme Court and other judicial bodies.

11 Ibid, ss 64 & 65.

12 Act 14 of 1995, commencing on 18 September 1995.

13 The first Ombudsman was Marie-Noëlle Ferrieux-Patterson, who served from 1994 à 1999 but was not re-appointed for a further term. Subsequent Ombudsman have been (listed in order of appointment): Hannington G Alatoa, Peter Taurokoto, Pasa Tosusu and Kalkot Mataskelekele.

14 Virelala v Ombudsman [1997] VUSC 35; Act 27 of 1998, commencing on 11 January 1999.

15 Transparency International, National Integrity System Update – Ombudsman and Office of the Auditor-General, Update #3. The powers of the Ombudsman are contained in s. 11 of the Act. The consequence of a breach of procedures was held in Jimmy v The Ombudsman [1996] VUSC 26 to require the withdrawal of the report and the investigation be re-conducted.

16 S.34(2) of the Ombudsman Act; PacLii database www.paclii.org; and for further information on the subject matter of written reports see generally Hill Edward R, Ombudsman of Vanuatu – Digest of public reports 1996-2000, UNDP Governance and accountability project, January 2001.

17 S.11(1)(d) & (e).

18 S.34(4) of the Leadership Code Act. Powers which are limited to recommendations only is a common feature of Ombudsman in many jurisdictions, see generally Satyanand, Judge Anad, Growth of the Ombudsman concept, (1999) 3 Journal of South Pacific Law and Keith KJ, Development of the role of the Ombudsman with reference to the Pacific, Speech delivered at the 22nd Australasian and Pacific Ombudsman Regional (APOR) Conference, Parliament House, Wellington, New Zealand, 9-11 February 2005.

19 Ss. 66-68.

20 Act 2 of 1998, commencing on 7 September 1998 and also Act 7 of 1999.

21 S. 34.

22 S.34(4).

23 Tapangararua v Public Prosecutor [2016] VUCA 10.

24 Reported by Loop Vanuatu on 20 August 2015 at www.loopvanuatu.com and the Pacific Media Assistance Scheme www.pacmas.org.

25 Commonwealth Human Rights Initiative, Analysis of the republic of Vanuatu draft Freedom of Information Bill 2006 and recommendations for amendments, May 2006.

26 Chapter 4 Parliament, s.25 Public Finance refers to the Auditor-General (while ss.18 -20 refer to the Electoral Commission).

27 Originally introduced as Act 6 of 1998, with a commencement date of 1 July 1998.

28 Ss. 25 & 27.

29 Ibid, s.25. The responsibility for preparing the reports in the first instance is conferred on the Director‑General of the Ministry of Finance and Economic Management, which the Act further provides is the head of the Ministry and the principal financial and economic advisor to the Government.

30 Ibid, s.27.

31 Brown, Alistair, The milieu of government reporting in Vanuatu, (2011) 23(2) Pacific Accounting Review 165, 178.

32 Retrieved from http://www.acauthorities.org/news/new-anti-corruption-group-set-vanuatu.

33 Transparency International, National Integrity System Update – Ombudsman and Office of the Auditor-General, Update #3, 27 September 2013, #2 20 September 2013 & #1 26 August 2013.

34 Ibid.

35 Transparency Vanuatu News Release dated 31 October 2013, www.transparencyvanuatu.org.

36 Originally introduced as JR 20 of 1980, with a commencement date of 30 July 1980.

37 Vanuatu Law Commission, A review of the Ombudsman Act, Issues Paper No.01 of 2015 & Vanuatu Law Commission, Leadership Code Act, Issues Paper No.02 of 2015.

38 Nari v Republic of Vanuatu [2015] VUSC 132, Public Prosecutor v Moana Kalosil and others - Judgment as to verdict [2015] VUSC 135 & Public Prosecutor v Moana Kalosil and others - Sentence [2015] VUSC 149.

Auteur

Assistant Professor Faculty of Law Bond University

© Presses de l’Université Toulouse 1 Capitole, 2018

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