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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PUBLIC REPORT
ON THE
NAMBAWAN BOTTLE SHOP CASE
20 August 1996
--------------------------------
PUBLIC REPORT
ON THE
NAMBAWAN BOTTLE SHOP CASE
"He that justifieth the wicked, and he that condemneth the just, even they both are abomination to the Lord. . ." Proverbs 17v15
In publishing this report the Ombudsman is disappointed that there continues to be a flood of complaints alleging misconduct by other officials and ministers. In due course the public will be informed of the nature of these complaints, and will require to consider what their response should be.
What is increasingly clear after 2 years of Ombudsman activity is that there appears to be a widespread lack of integrity among leading figures which has led, and continues to lead, to extensive misuse of public money for private gain.
It is also clear that appointments are made and rewards offered which have little regard for the actual experience and ability of those appointed, and leaders often act in a way which illustrates that they do not believe they should be accountable for all their actions and all their decisions to the public who ultimately pay their wages and meet the bills.
Many conversations with the Ombudsman reveal the fact that the public no longer expect a high standard of integrity or performance from their leaders, and many express disillusion and lack of hope for the country’s future. It is not difficult to see that this provides an atmosphere of resentment and hopelessness which will, if not changed, lead to increasing social unrest and criminal activity while the guilty go unpunished.
Therefore I appeal to all leaders to join with me in increasing efforts to identify wrongdoers, and to insist on resources being directed to enable the Public Prosecutor’s office to bring those charged fairly and without bias to trial, so that the public may feel that their interests are being protected and their future ensured.
It is with this hope that this report is published.
TABLE OF CONTENTS
1. JURISDICTION AND PURPOSE OF INVESTIGATION
1.1 JURISDICTION
1.2 SCOPE OF INVESTIGATION
1.3 METHOD OF INQUIRY
1.4 PRELIMINARY REPORT AND RIGHT TO BE HEARD.
2. PRELIMINARY FINDINGS OF FACTS
2.1 LICENCES REQUESTED FOR OPERATION OF NAMBAWAN BOTTLE SHOP
2.2 CHRONOLOGY
3. RELEVANT LAWS
3.1 THE LAND LEASES ACT (CAP 163)
3.2 THE BUSINESS NAMES ACT (No.6 of 1990)
3.3 THE BUSINESS LICENCE ACT (CAP 173)
3.4 THE PHYSICAL PLANNING ACT (CAP 193)
3.5 THE LIQUOR LICENSING ACT (CAP 52)
3.6 THE POLICE ACT (CAP105)
3.7 PENAL CODE (CAP135)
3.8 CONSTITUTION
4. FINDINGS OF ALLEGED MISCONDUCT
4.1 ALLEGED VIOLATIONS OF LAWS
4.2 ALLEGED VIOLATIONS OF CONSTITUTIONAL PROVISIONS
4.3 INACTION OF OFFICIALS
5. SUMMARY OF MISCONDUCT
5.1 MINISTER WILLIE JIMMY
5.2 MINISTER CHARLIE NAKO
5.3 CHARLIE PAKOA
5.4 PHILIPPE LUANKON
6. RECOMMENDATIONS
6.1 NO POSITION OF LEADERSHIP FOR MR WILLIE JIMMY
6.2 REPRIMAND OF MINISTER CHARLIE NAKO AND RECOMMENDATIONS TO ANY MINISTER OF HOME AFFAIRS
6.3 CANCELLATION OF THE SPECIAL HOURS OF THE NAMBAWAN BOTTLE SHOP LIQUOR LICENCE
6.4 CANCELLATION OF BOTH BUSINESS LICENCES OF NAMBAWAN BOTTLE SHOP OR RELOCATION OF THE BUSINESS TO ANOTHER LOCATION AS ORIGINALLY
ADVISED
6.5 PROSECUTIONS AGAINST FORMER MINISTER WILLIE JIMMY AND CHARLIE PAKOA FOR THEIR RESPECTIVE BREACHES OF THE LAW
6.6 REVIEW OF THE LEASE NO 11/OF23/022
6.7 GENERAL POINTS
7. CONCLUSION.
8. APPENDIX
A. REPLY BY WILLIE JIMMY INCLUDING OMBUDSMAN’S COMMENTS.
B. LETTER FROM PRIME MINISTER.
C. LETTER FROM MINISTER OF HOME AFFAIRS.
-------------------------------------------------
INTRODUCTION
The Ombudsman received numerous complaints from concerned citizens over the issuing of a licence to operate a 24-hour liquor shop (Nambawan Bottle Shop) on the main road in a largely residential area.
The Nambawan Bottle Shop is a commercial establishment created by 3 partners, The Honourable Minister Willie Jimmy, former Minister of Finance, Charlie Pakoa, Office Supervisor at the Ministry of Finance and their Manager, Philippe Luankon.
The majority of complainants were those living close to where the bottle shop was located, Church groups, Women’s groups, those involved in tourism and other sellers of alcohol.
The complaints centred on the intolerable noise, the reduction of road safety, the image of Vanuatu given to tourists arriving from the airport witnessing staggering drunks at any time of day and night and also on the serious effect the bottle shop was having on the daily lives of the people living in the vicinity:
Essentially this meant the destruction of the peace and quiet of their neighbourhood, hazardous traffic conditions brought about by a dramatic increase in the coming and going of vehicles, especially those reversing into traffic flow, drunken patrons of the bottle shop invading the roads, the nearby shops and gardens at all hours, shouting and singing into the night, and the inevitable problem of having to clean up vomit, urine, cans and broken bottles.
As these very serious complaints appeared to be legitimate, I decided to enquire into the matter including the complaints concerning the allegations of irregularities which might have occurred in the issuing of the licence.
My acquaintance with the situation was facilitated by the fact that, during the first months of operation of Nambawan Bottle Shop, my family lived in the close vicinity, which gave me first hand knowledge and experience of the situation.
During the course of my investigation I uncovered a number of irregularities in the procedures employed in the issuing of the licences, not the least of these being the fact that the Honourable Willie Jimmy, when Minister of Finance, had a pecuniary interest in the shop, even though he, as Minister responsible for the Business Licence Act, was the person responsible for the issuing of two of the licences.
In this instance, it appears that the controls and regulations envisaged under the relevant legislation have been flagrantly violated by a very senior politician with a vested interest in the outcome who, irrespective of the legal requirements, has chosen to ignore the relevant legislation for his own vested and personal interest.
In forming my opinion, I have been guided by the view that proper procedures laid down by law for the control and regulation of the sale of liquor must be strictly complied with in the public interest.
I have therefore formed the view that the correct procedure, laid down in the relevant laws, for the regulation and control of the granting of liquor and business licences appear to have been seriously compromised for political expediency and commercial gain, with little regard being paid to matters of public convenience, the well being of the public, and the public’s rightful expectations of proper conduct from their leaders.
It appears from the investigation that the conduct of both the former Minister of Finance and the Minister of Home Affairs was far from satisfactory, improper and, in certain cases, unlawful.
In accordance with section 14 of the Ombudsman Act 14 of 1995, the Ombudsman is responsible for enforcing the Leadership Code as outlined in Chapter 10 of the Constitution. During the enquiry, it emerged that the two leaders, the Honourable Minister Willie Jimmy and Minister Charlie Nako were both in breach of the Leadership Code.
Former Minister Willie Jimmy, through his personal business or directly by his actions appeared to have abused his position when he was a Minister of the State and has breached the following constitutional provisions, laws and procedures as outlined in Chapter 6 (Findings of Misconduct):
Minister Charlie Nako twice granted to Minister Willie Jimmy a liquor licence that did not comply with the legal requirements applying to such establishments. As far as I am aware from the enquiry with all the departments concerned he has made this unique offer exclusively to a commercial venture owned almost entirely by a minister of the State and therefore breached a constitutional, fundamental human right of equal treatment under the Law or administrative action.
Minister Charlie Nako through the exercise of his duties in this particular case breached the following constitutional provisions, laws and procedures:
In this report the breaches of the Leadership Code are the most serious concern as the breaches of the Law are also acts of Misconduct under the Leadership Code.
The whole matter of the granting of a unique 24 hour liquor licence to a bottle shop was in fact an inter-ministerial affair which should have been resolved by the Cabinet of Ministers and their Chairman, the Prime Minister.
The Prime Minister was aware of this problem at an early stage, he is the final authority in the matter of appointing, disciplining and removing ministers with an overall control. However, it is to be regretted that the Prime Minister appears not to have taken any steps to control and discipline Minister Willie Jimmy and to prevent Minister Charlie Nako from committing his breaches of both the Law and the Constitution. This raises the matter of enforcement of discipline amongst Cabinet Ministers.
During my inquiry, it became increasingly apparent that there was inaction from numerous officials who might otherwise have been expected to act and, to the surprise and frustration of many complainants, the Police Force was slow to react in circumstances where they would normally be more vigilant. As this inquiry proceeded, my Office received almost as many complaints about the inaction of the Police as were received concerning the Bottle Shop itself.
What appeared to be a primary cause of the failure of officials to act appropriately and with integrity was their fear of opposing Minister Willie Jimmy. Indeed many interviewees indicated their fear of actual bodily harm from "henchmen" allegedly in the employ or working under the orders of the Minister of Finance. Whether or not these fears had any basis in reality, the result was obvious, namely reluctance to take any action which might meet his disapproval. According to Mr Georges Calo, Town Clerk of the Municipality, on 18.09.94, Minister Willie Jimmy telephoned to make the direct threat of refusing duty exemption if his personal desires were not gratified.
In other words, it is difficult to find any other explanation which adequately fits the apparent paralysis which for so long prevented any appropriate action on the part of Ministers and officials to put an end to the operation of an enterprise which is not only illegally based, but a proven public nuisance, and an encouragement to deplorable behaviour.
Punitive action by the Municipality has been taken against other establishments, while Nambawan Bottle Shop has been permitted to continue to violate numerous criteria. Delay in acting against it has caused and continues to cause justifiably much public outrage. The actual consequences of the ready availability of alcohol at all hours of the day and night were plain to see, and have been observed and regretted by visiting tourists as well as native Ni-Vanuatu. There is no doubt that it has contributed, and continues to contribute even with somewhat reduced hours, to many of the social problems which the Municipality and other groups, Women Groups and Vanuatu Christian Council, identified clearly without difficulty when the first application was made.
It is to now noted that the new Government has acted to restrict its trading to the normal hours. They are to be complemented for this.
It appears also that notwithstanding the preliminary report that was given to the Honourable Willie Jimmy in 1995 the Numbawan Bottle Shop has continued at times to operate outside the correct hours of operation. On the 23rd of April 1996 he was provided with details of further complaints about failing to comply with a direction from the Minister for Home Affairs Robert Karie wherein the Numbawan Bottle Shop was directed to open only during the normal hours. No response has been received to these further complaints.
Honourable Willie Jimmy stated in a letter dated 25/04/96 that he continued to open outside of working hours because he misunderstood a recent amendment that was restricting certain operations of nightclubs. He wrote:
"With regards to the Liquor Licensing Amendment Act No19 of 1995 it is a misunderstanding on my part as the amendment when read together with the Principal Act only applies to premises with a nightclub"" (he was in Parliament at the time of passing of the Amendment).
As long as Nambawan Bottle Shop was allowed to continue to function outside of the normal working hours, it stood as clear evidence of misuse of powers and violation of laws and the Constitution which are intended to prevent this type of abuse.
This Report was originally released in November 1995.
Its publication was the subject of litigation in respect of whether the Honourable Willie Jimmy had had enough time in which to reply to the Preliminary Report. The Court concluded that he had not and he was given 3 weeks to answer and the Report was thus withdrawn. A full reply was received and is set out in Appendix A to this Report. This reply has been considered in detail . No major differences has been made to this Report as a result of that consideration with the same breaches being noted as were in the Preliminary Report.
Appendix B to this Report contains two letters. The first is dated 23 January 1996 and is from the former Prime Minister The Honourable Serge Vohor. Rialuth to the Ombudsman in which he comments upon the Preliminary Report. Appendix C to this Report sets out a letter from the Minister for Home Affairs to the Proprietor of the Nambawan Bottle Shop of 31 January 1996. In this letter the Minister sets out clearly the trading hours for the shop.
It is to be noted that this report contains expressions of the opinion of the Ombudsman in relation to the matters investigated.
Any reference in this Report to "the Minister of Finance " is a reference to the Honourable Willie Jimmy MP.
CHAPTER 1
JURISDICTION AND PURPOSE OF INVESTIGATION
[1.2] JURISDICTION
I have conducted the inquiry under Article 62 (1) and (2) of the Constitution and under section 17 of the Ombudsman Act. These constitutional laws allow me to enquire into, either on my own initiative or upon receiving a complaint from inter alias a person affected, "as a result of a particular conduct" on the part of a government department or ministry or any of their officers.
I can thus investigate the circumstances surrounding the issuing of these licences, on the basis that the licensing authorities are the Ministry of Finance and the Ministry of Home Affairs.
[1.3] SCOPE OF THE INVESTIGATION
The purpose of my investigation in this instance was to determine whether or not the decision to issue licences to Nambawan Liquor Shop should be annulled, on the grounds that it was:
In the words of Article 63 (2) of the Constitution:
"contrary to law; or based on error of law or of fact unjust or blatantly unreasonable",
and in the words of section 22 of the Ombudsman Act:
"the law or administrative practice, the subject of the investigation, or any other law or administrative practice, is defective or
the practice, the subject of the investigation, is discriminatory".
[1.4] METHOD OF INQUIRY
I obtained documents and other evidence from a number of different sources, pursuant to my powers as set out under Article 62 (3) of the Constitution and section 17 of the Ombudsman Act which entitles me to request the persons specified therein to furnish documents and information to me.
[1.5] PRELIMINARY REPORT AND RIGHT TO BE HEARD
On 29.10.94, the Office of the Ombudsman circulated its preliminary report which outlined preliminary findings of fact and indicated concerns about the non-respect of laws, regulations and procedures by the shareholders of the Nambawan Bottle Shop, two of them being employed by the Government of Vanuatu. The preliminary report was given to the following persons:
A separate letter with the relevant findings was forwarded to Charlie Pakoa, Office Supervisor at the Ministry of Finance on 02.11.95.
The purpose of seeking comments and submissions from those affected by this report was to discharge the Office of the Ombudsman’s constitutional obligation of granting "the person or body complained of an opportunity to reply to the complaints made against them" (article 62(4) of the Constitution), and of the legal obligation as outlined in section 16(4) of the Ombudsman Act No.14 of 1995.
On 02.11.95 Honourable Willie Jimmy wrote as follows:
"I acknowledge your preliminary report dated 24.10.95 concerning your findings about Nambawan Bottle Shop and regret to advise that I had not yet read through the report and be in a position to comment as requested.
The reason being that during the time of your submission I was away on Government Mission Overseas attending SPC meeting in New Caledonia from 24th to 30th October. The 14th days limit ends, I presume by 8th November, I shall do my best, but cannot promise as I have other priority matters to attend to involving election etc".
The Ombudsman wrote back to the Minister of Finance:
"I acknowledge receipt of your letter dated 02.11.95.
My counting of the 14 days time limit puts the limit date at the 07.11.95. However my Office is quite willing to agree to the limit date for you to exercise your constitutional right to reply to the complaints made against you being altered to the 08.11.95.
If your schedule is indeed heavily booked with "other priority matters" as you indicate both my Director and myself are ready and willing to arrange an appointment with you outside of normal office hours, either during lunch time, in the evenings up to 7 pm or over the week-end at my Office in order to record any comments you may wish to make in response to the preliminary findings of alleged misconduct outlined in pages 28 - 37 of the Preliminary Report.
Considering the very serious nature of these issues, I maintain the limit date to the 8th of November and I trust that I will hear from you as a matter of urgency".
No one answered to any of the findings of Misconduct; only the former Minister of Finance replied after he had been given additional time to reply by the Supreme Court. His reply is set out in full as Appendix A and is so set out in accordance to Section 16 (4)(c) of the Ombudsman Act. The critical assertions of the former Minister of Finance are disagreed with and in any way mitigate or justify his position. On 23 April 1996 a further letter was sent to the Honourable Willie Jimmy setting out further complaints. By letter of 25 April he replied. This report has taken into account the comments made by the Honourable Willie Jimmy. In Appendix A my observations are set out in respect of the comments for the Honourable Willie Jimmy.
CHAPTER 2
PRELIMINARY FINDINGS OF FACT
In this chapter, I state the preliminary findings of fact on which I base my preliminary findings of improper conduct. First, the series of events leading up to the issuing of the licence is summarised. I then state my findings in relation to a number of important matters.
[2.1] LICENCES REQUESTED FOR THE OPERATION OF NAMBAWAN BOTTLE SHOP
In this case 3 business licence authorisations were required to operate a bottle shop and an additional authorisation had to be given to operate on a 24 hour basis.
The licences required were as follows:
[2.1.1] LICENCE D3 (C):
"Citizen - owned general retailer and wholesaler."
[2.1.2] LICENCE D1:
"Importers" -
Both licences D3 (c) and D1 are under the provisions of the Business Licence Act, and are under the authority of the Minister of Finance.
[2.1.3] LIQUOR LICENCE
This licence is regulated by the provisions of the Liquor Licensing Act [CAP52], and the Minister responsible is the Minister of Home Affairs. This licence is generally processed and granted by the Municipality under the above mentioned Act. The licence fee is payable to the Department of Rates and Taxes whose only responsibilities are:
However, prior to collecting the fee and issuing the licence, the Department of Rates and Taxes must ensure that the standard liquor licence application has been duly signed by the Municipality or by the Minister of Home Affairs (generally on appeal) if the Municipality has refused to authorise the licence.
[2.1.4] 24 HOUR OPERATION
The definition of opening hours is found in the Liquor Licensing Act and this legislation makes no provision for a 24 hour operation.
The normal opening hours according to section 18.2 of the Act are:
Any modification of the opening hours can be authorised only by the Minister of Home Affairs under his discretionary powers in section 18 (5) (special hours).
[2.2] CHRONOLOGY
[2.2.1] APPLICATION FOR BUSINESS LICENCES
On 02.08.94, Mr Philippe Luankon applied to the Ministry of Finance for a Business Licence D3 (c) "detailing and wholesaling (sic)" of liquor at Ballande Centre, trading as "Port Vila Bottle Shop D. Dock".
According to the official application form signed by Mr Luankon, he named himself as the sole proprietor of the Business, and the location of the Business was announced to be Ballande Centre.
No application was made by Mr Philippe Luankon for a D1 licence for Import.
The former Minister of Finance has provided an explanation in respect of this as is set out in Appendix A at page 5. I am unable to accept the explanation as in any way mitigating the conduct complained of in this report.
[2.2.2] On 08.08.94, the Business Licence Committee met and approved Philippe Luankon's application for a D3 (c) licence to establish his business at the Ballande Centre Building. However, the final approval still had to be granted by the Minister of Finance when the Minutes of the Committee were forwarded to him.
[2.2.3] On 25.08.94, the Director of Customs approved a duty exemption presented by the Municipality on 25.08.94.
[2.2.4] On 26.08.94, the Minister of Finance affixed his Official Ministerial Seal on the licence application form with his personal signature approving it before the Minutes were remitted to him.
The licences granted were D1 and D3 (c) even though there was no indication nor mention of D1 in the application.
Granting a licence not applied for is clearly outside all normal procedures associated with the application for and the granting of business licences.
[2.2.5] On 29.08.94, the Minister received the Minutes of the Business Licence Committee meeting of 08.08.94 and signed his approval next to Philippe Luankon's application which was the normal procedure. Once the Licence Committee has considered the applications, the final approval is left to the Minister of Finance after considering their recommendations on the Minutes.
[2.2.6] On 31.08.94, the Municipality received an application in the name of "Port Vila Bottle Shop" from Mr Luankon to operate a 24 hour Liquor Licence in commercial premises situated in Melcoffe.
Under the relevant provisions of the Physical Planning Act, and in particular section 4, the approval of the Council is a mandatory requirement before any liquor licence can be issued.
This application for a 24 hour operation was totally unprecedented. Although it has been alleged that premises with liquor licences have been opening illegally beyond their opening hours, no other case is known where an application was made for something that the Law specifically prohibits.
This application included two different requests:
(i) location to be in Melcoffee;
(ii) liquor licence for 24 hour operation.
[2.2.7] On 05.09.94, the Town Council met to consider the application for:
The meeting included both the representatives of the Municipality and representatives of other departments (Police and Customs).
The Municipality advised the shareholders of Nambawan Bottle Shop that their policy was to refuse such an application as it should be in contradiction with the Physical Planning Act:
However, despite their misgivings the Council granted a normal hour operation but refused the granting of a 24 hour licence on the basis that they had no power to grant such an authorisation.
Needless to say, the application for a 24 hour liquor licence was rejected out of hand. The reasons for the rejection were all soundly based (illegal as defined in the Licensing Act and contrary to the Physical Planning Act).
The partners of Nambawan Bottle Shop were notified on 16.09.94.
[2.2.8] On 06.09.94, the First Secretary of the Ministry of Finance, Mr Pikioune, wrote to Philippe Luankon advising him of the Ministry’s approval of licence D3(c) in the name of ‘Port Vila Bottle Shop D.Dock" and requested the owner to register the business name and to produce the evidence of the registration when Mr Luankon came to settle his business licence fee. (Normal procedure; no indication in the letter of Licence D1 being granted).
[2.2.9] On 07.09.94, Philippe Luankon paid his fees to an officer of Customs and Rates, Robert Warren, and did not produce evidence of the registration of the Business Name and was not requested to by the Customs officer, whose duty was to check that all the documents were in order.
The shareholders paid the fee of the liquor licence on 07.09.94 to an inexperienced officer of Rates and Taxes before it was even submitted for consideration to the Municipality on 16.09.94! (The Municipality refused the application, however it was accepted on appeal by the Ministry of Home Affairs on 21.09.94).
During the inquiry, on 29.12.94 the tax officer said that he accepted the fee because he thought everything was in order as the Minister of Finance had affixed his seal on top of the application, approving it and signing it. He said:
'Philippe Luankon emi tellem mi emi ok, Minister emi signem emi write on the application and mi luk signature and stamp of Minister'. He admitted never seeing or checking the prior approval of the licence by the Municipality or the Ministry of Home Affairs (This application had no signature on it).
[2.2.10] APPEAL OF THE SHAREHOLDERS TO THE MINISTER OF HOME AFFAIRS
Dissatisfied with the Municipal Council’s refusal forwarded to them on the 16/09/94, Mr Luankon and Charlie Pakoa appealed against their decision.
- They wrote to the Municipality on 19/9/94 accusing the councillors of a discriminatory decision and accusing them of allowing other 24 hour operations,
- They wrote on the 21st of September 1994 to the Minister for Home Affairs as Minister responsible for the appeal procedure and for the Liquor licensing Act to appeal against the Municipality’s decision to appeal, setting out 7 grounds of appeal, namely:
(i) "Council iko akensem free enterprise economic policy blong Party UMP mo kavman we UMP I leadim today. (Competition long business)
(ii) Bottle Shop blong mifala ino bar, mo ino club we people oli save drink inside long area or store blong mifala.
(iii) Public ikam pem drinks nomo, mo karemaot blong ko drink long haos or where we emi wantem ko drink long hem.
(iv) Mifala ino acceptem reason blong Major, se emi wan highway, olsem wanem Flamingo Night Club, Windsor Night Club, mo l’Houstalet, oli no stap long same street (Kumul Highway)"
They added words to the effect:
(v) Three other bottle shops operated on a 24 hour basis (Red Light, Api Toara, Salili Store);
(vi) Councillors of the Municipality were very jealous of them and had taken their application too personally;
(vii) They asked for a one year trial period to prove their ability to conduct an efficient service to the public of Port Vila.
[2.2.11] APPEAL OF THE MINISTER OF FINANCE TO THE MINISTER OF HOME AFFAIRS
On 21.09.94, the Willie Jimmy also wrote a letter to the Minister for Home Affairs, on his official Ministerial letterhead supporting the appeal in the new name of "Nambawan Bottle Shop"
"Further to our various discussions and subsequent telephone conversation today concerning the above subject matter, as a shareholder in the company, I hereby wish to confirm my support to the appeal against the Municipal Council decision and request the Honourable Minister to review and exercise his decision to give the company one year trial period to prove its operation and control in dealing with the business of selling liquor to the Public.
The reason given in the appeal letter signed by the two Directors addressed to you had my full support".
In this letter the Minister of Finance divulged officially and publicly for the first time, that he had a pecuniary interest in the Bottle Shop as a shareholder.
According to the Minister of Home Affairs, Minister Willie Jimmy came personally to visit him with this letter and left with the Minister of Home Affair’s approval and his Seal on the appeal letter.
The trading name they used was "Nambawan Bottle Shop". This business name was not registered.
[2.2.12] On 08.09.94, the Duty Exemption Committee confirmed the duty exemption granted by the Director of Customs on 25.08.94.
[2.2.13] On 18.09.94, Mr Georges Calo, Town Clerk, declared that Minister Willie Jimmy telephoned him specifically threatening the Municipality that he would refuse further duty exemption for their equipment and material, because they had refused the 24 hour licence.
[2.2.14] On 21.09.94, the Minister of Finance refused to grant duty exemption to the Municipality, accepted by the Duty Exemption Committee. This was the first time duty exemption had ever refused to the Municipality by the Ministry of Finance.
[2.2.15] On 20.10.94, the Ombudsman visited the Nambawan Bottle Shop. The Ombudsman requested to see the licences and was presented with licences D1 and D3 (c) but no official document of the liquor licence. The same day Minister Willie Jimmy phoned the Ombudsman asking why she went to the Nambawan Bottle Shop.
[2.2.16] On 20.10.94, Minister Willie Jimmy wrote to the Prime Minister with copy to the Speaker of Parliament declaring his interest in Nambawan Bottle Shop. The Minister wrote:
"I am what the commercial term called a sleeping partner". I subscribe only to authorise capital and do not act further actively in the operation in order to uphold my interest and reputation to serve the Government"
[2.2.17] On 27.10.94 petitions signed by 23 people against the nuisances created by Nambawan Bottle Shop were sent to the Mayor of Port Vila.
[2.2.18] On 03.11.94, the Ombudsman advised Minister Willie Jimmy, that following complaints received by her Office, she had decided to investigate the Nambawan Bottle Shop and other premises allegedly operating at illegal opening hours.
[2.2.19] On 30.11.94 a letter was sent from the Honourable Willie Jimmy, Director/Shareholder of Nambawan Bottle Shop to the Ombudsman referring to her letter dated 03.11.94.
The Minister of Finance wrote:
1. "I request the Ombudsman to immediately carry out investigation on three (3) other shops which had already been operating on twenty-four hours basis in the past five years.
2. The Ombudsman should give them instructions to voluntarily withdrew their special licences on the same basis as you did to Nambawan Bottle Shop. It is the trading hours that matters here (24 hours).
3. Our Liquor Licence application to the Authorities concerned was clear that we want to operate on 24 hours basis, to provide service to those who cannot afford to go to bars and Restaurants where drinks are expensive ".
He wrote words to the effect:
4. Clients are not permitted to consume drinks in or around the premises.
5. Security was employed on a 24 hour basis to make sure that people did not drink around the premises.
6. Two other liquor shops had been operating in the most crowded areas, while he was M.P, and despite complaints, they were still operating.
And the Minister added:
7. "I viewed your approach to deal with Nambawan Bottle Shop after one month of its operation, with assumptions of complaints received by you was highly based on jealousy and politically motivated. I am aware that your own residence is just approximately 30 meters from the shop, therefore it could also be at your own interest.."
8. The Minister described a protest letter being a "continuity of colonial mentality and abuse of power by exploiting other indigenous Melanesian Ni-Vanuatu to work against the business which is 100% owned by Ni-Vanuatu - 18 staff employed."
9. The Minister stated that The Ombudsman was acting beyond her responsibility and there was "much work to be done on the legislation" (of the Ombudsman).
10. If the Nambawan Bottle Shop voluntarily withdrew its special licence now. I want the same to be done with all other shops currently operating to do likewise. Otherwise it would be unfair to Nambawan Bottle Shop".
11. He added that people who get drunk elsewhere could not be the responsibility of Nambawan Bottle Shop.
[2.2.20] No other 24 hour licensee.
The shareholders of the business claimed that there were other 24 hour licence operations. All the parties questioned including the Police, the Municipality, the Department of Licences at the Ministry of Finance and the Minister of Home Affairs did not know of nor had they authorised any such licence.
It was therefore the first time that such a licence had been issued to a Liquor Store or to any general store.
[2.2.21] COUNCIL OF MINISTER’S DISAPPROVAL TO SELL ALCOHOL OUTSIDE OF OPERATING HOURS
On 08.11.94 the Attorney General wrote to the Minister of Home Affairs seeking clarification of his actions concerning the Nambawan Bottle Shop.
The Attorney General informed him that he had received a number of complaints about the shop being opened nights and week-ends.
The Attorney General reminded the Minister that the Council of Ministers had discussed the matter of lifting the banning of the sale of liquor on Saturday afternoons and on Sundays following the Minister of Home Affair’s submission on the 1st of September 1994 to the Council of Ministers and reminded him that he had to withdraw this submission because of the opposition to it of all the Ministers.
The Attorney General indicated that "if the shop had an urban general off licence, the opening outside hours was illegal".
He requested the Minister to clarify the affixing of his seal and his signature with the words "liquor licence approved" on the two letters of Appeal of the Minister of Finance and of the other shareholders. The Attorney General requested to know whether:
- his words meant he had agreed to grant a "special hours" licence for the shop to open at all the hours and days under section 18 (5) of the Liquor Licensing Act.
Furthermore the Attorney General asked the Minister of Home Affairs:
- to let him know whether there were other similar licences,
- to explain the criteria used to grant a 24 hour licence to ensure that equal treatment in front of the law and of the administrative action in accordance with the Constitution be respected.
[2.2.22] On 14.11.94, the Ombudsman wrote to the Minister of Home Affairs requesting a meeting to answer questions concerning Nambawan Bottle Shop as follows:
- the reasons of accepting an appeal in favour of Nambawan Bottle Shop taking into account the soundly-based reasons of refusal of the Municipality and the nuisances created by the 24 hour Bottle Shop;
- and the existence of other 24 hours licences.
[2.2.23] On 04.12.94 the Minister of Home Affairs and the Ombudsman met and discussed the reasons why the Appeal was granted. The reasons given by the Minister were:
- free enterprise as per Governmental policy;
- Minister of Home Affairs felt intense pressure by the Minister of Finance who came himself with the letters of Appeal and obtained his Seal and Signature for approving the 24 hour Liquor Licence;
- The difficulty of controlling the other licensed shops and nightclubs.
The Minister of Home Affairs expressed his intention to cancel his special authorisation to Nambawan Bottle Shop to operate on a 24 hours basis.
With that assurance, the Ombudsman informed the Minister that the official interview was over.
[2.2.24] On 19.12.94 the Minister of Home Affairs wrote to Minister Willie Jimmy about Nambawan Bottle Shop informing him that:
- the numerous complaints had been received,
- the Ombudsman came to see him about this matter,
- he was requesting him to organise some security around the area,
- the Commissioner of Police had also expressed his concern to him because of the number of complaints the Police had received,
- it would be better if he found another area outside of the middle of town to operate their business.
In this letter Minister Nako did not cancel the 24 hours licence in accordance with his powers under the Liquor Licensing Act; he only gave a warning to the proprietor.
[2.2.25] On 21.12.94 the Ombudsman wrote a letter to the Minister of Home Affairs acknowledging receipt of the copy of his letter to Minister Willie Jimmy and further advising him that:
1. Discretionary powers should be used only within the spirit of the law, and the letter of existing laws and regulations and section 18 (5) of the Liquor Licensing Act, could not be used to grant a permanent 24 hour operation according to the legal advice received both by the Ombudsman and the Minister of Home Affairs.
No other 24 hour licence had been granted, only one to Nambawan Bottle Shop whose principal shareholder was the Minister of Finance, and against the advice of Municipality.
2. This was also a possible infringement or the Leadership Code of the Constitution because of the direct financial interest of a Minister,
3. Reminding the Minister of Home Affairs that in the meeting between himself and the Ombudsman on 14.12.94, the Minister of Home Affairs expressed his intention to withdraw the licence there and then.
[2.2.26] On 15.04.94 Mr Vake Rakau was appointed Force Legal Officer (rank: Superintendent) by the Police Service Commission.
[2.2.27] On 16.05.95 Superintendent Rakau notified the Ombudsman that he had been asked to follow up the matter of the Nambawan Bottle Shop.
[2.2.28] On 24.05.95 Superintendent Rakau wrote to the Manager of the Bottle Shop giving him until 05.06.95 to obtain a liquor licence under section 38 of the Police Act (CAP 105).
[2.2.29] On 31.05.95, the Minister of Home Affairs wrote to the Commissioner of Police:
"I undersigned Honourable Charley NAKO, Minister of Home Affairs, hereby granted the renewal licence to Nambawan Bottle Shop for 1995/96 under the specific conditions;
(a) Monday to Thursday Shop will be open until 9 p.m. only,
(b) Friday and Saturday Shop will be open until 12 o’clock midnight only,
(c) Sunday no authorise to sell any beverage.
The above conditions must be strictly observe by the applicant otherwise I will have no alternative but to cancel the privilege".
[2.2.30] Beginning of June 1995, transfer by the Police Service Commission of Superintendent Rakau to the position of head of Prisons on the basis that the position of Force Legal Officer did not exist in the organised charter of the Police.
[2.2.31] On 02.06.95 the Minister of Finance in a letter to the Ombudsman outlined that the partners were as follows:
Willie Jimmy/Principal shareholder
Phillip Luankon/Ordinary shareholder
Charlie Pakoa/Ordinary shareholder.
He added: "Mr Phillip Luankon was then chosen as the first Manager of the Bottle Shop until his termination 31/1/95."
[2.2.32] On 21.06.95 the shareholders registered the business name "Nambawan Bottle Shop" with the partners listed as:
Willie Jimmy
Charlie Pakoa
Alick J. Kokona.
CHAPTER 3
RELEVANT LAWS
For the purposes of this investigation it has been necessary to consider in detail the relevant laws governing the procedures to be employed in granting a liquor licence.
These laws are:-
(1) The Land Leases Act (CAP163);
(2) The Business Name Act No.6 of 1990;
(3) The Business Licence Act (CAP173);
(4) The Physical Planning Act (CAP193);
(5) The Liquor Licensing Act (CAP 52);
(6) Police Act (CAP105);
(7) The Constitution: Fundamental Rights and Leadership Code
[3.1] THE LAND LEASES ACT
[3.1.1] LAW AND LEASE
The lease on which Nambawan Bottle Shop operates (No.11/OF23/022) is a residential lease in the name of Mr Nguyen Ba Wing.
The premises were subleased to Nambawan Bottle Shop. The problems with this are as follows:
(1) The activity on the lease is mainly commercial on a residential lease;
(2) There have been many complaints of nuisances coming from the commercial activity of this lease.
Schedule 4 of the Lease title states:
"The Lessee agrees not to use or permit the use of the leased land for any noxious, noisome or offensive act, trade business or occupation, or calling or in any such manner as to cause annoyance, nuisance or inconvenience to occupiers or owners of adjacent premises or the neighbourhood."
Because of the numerous complaints concerning the various nuisances caused by the sub-lessee, Nambawan Bottle Shop, the Minister of Natural Resources could declare that the lease was being breached.
The Land Leases Act, section 43, on the lessor's right of forfeiture is very clear about the consequences that can be brought about because of a breach of lease:
"Subject to the provisions of section 45 and to any provision to the contrary in the lease, the lessor shall have the right to forfeit the lease if the lessee commits any breach of, or omits to perform any agreement or condition on his part expressed or implied in the lease".
[3.1.2] ENFORCEMENT, FORFEITURE
The Minister of Natural Resources is the Minister responsible for the enforcement of the Land Leases Act.
In case of a breach, section 45 of the Land Leases Act allows the lessor to give notice in writing of the forfeiture to the lessee "which:
(a) shall specify the particular breach contained of; and
(b) if the breach is capable of remedy, shall require the lessee to remedy the breach within such reasonable period as is specified in the notice".
[3.2] THE BUSINESS NAMES ACT NO.6 OF 1990
The Minister responsible for the Business Names Act is the Minister of Finance.
[3.2.1] The Business Names Act requires all business names to be registered under the Act.
Section 2 of the Act states:
"(1) Subject to the other provisions of this Act, no person shall carry on business in or from within Vanuatu under a name which does not -
(a) in the case of an individual consist of his surname, without any addition thereto other than an addition permitted by this Act;
(d) in the case of a group, consist of the surnames of all members who are individuals and the corporate names of all members who are bodies corporate without any addition thereto other than an addition permitted by this Act,
unless the business name is registered in accordance with this Act and that person is registered as the user thereof."
The purpose of the obligation to register the business name is to protect the people who enter commercial transactions with the business concerned. This allows them to be able to know whom they are dealing with and against whom any legal proceedings may be taken if there is a problem at some point. If the business name is not registered, and if the owners of the name are not clearly registered at the Vanuatu Financial Services Commission, then one would not know whom to sue for any outstanding monies owned by the company or partnership, nor would the State know who was responsible for the business in the event of a prosecution for any breaches of the Law.
[3.2.2] Sections 2 (3) and 18 define the penalties for contravention of the Act.-
Section 2 (3):
"Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding Vt10,000 for each day during which the offence continues".
Section 18 outlines the following fines payable:
Fees and Penalties
(1) Where a person carries on business under an unregistered business name contrary to section 2, he shall, in addition to any other fine prescribed under this Act be liable to pay to the registrar
(a) whether or not the business name is one that could be or is ultimately registered, the penalty set out in the Schedule for each month, or part thereof, during which he is in default subject to a minimum of Vt 5,000; and
(b) if for any reason the name is not registered under this Act the registration fee and any renewal fee for which he would have been liable had the name been registered on the day that he commenced to carry on business under the business name.
The Commissioner of Vanuatu Financial Services Commission is responsible for enforcing the Business Names Act.
The Minister responsible for the Vanuatu Financial Services Commission is the Minister of Finance, the major shareholder of the Nambawan Bottle Shop.
[3.3] THE BUSINESS LICENCE ACT [CAP 173]
[3.3.1] POWERS OF THE MINISTER
The Minister responsible for the Business Licence Act is the "Minister responsible for Finance".
Section 19 Cancellation of Licence states:
"Where a licence holder is convicted of any offence under this Act or any law providing for the payment of a tax or customs or excise duty, or being a person required to register a business name with the Business Names Act he obtains the issue or renewal of a licence when the business name is not registered or he is not the registered user thereof, the Minister may cancel his licence, and no refund of fees shall be payable".
The Minister under section 8 (A) in his discretion may:
"(a) refuse the issue or renewal of any licence under this Act; or
(b) at any time revoke any licence issued under this Act."
The Minister is also generally responsible for the enforcement of the Business Licence Act. The Minister is assisted by a committee for the granting of business licenses.
[3.3.2] GENERAL AND STANDARD PROCEDURES FOR A BUSINESS LICENCE APPLICATION
- Applicant fills in form of application for business licence.
- Applicant remits application to Officer responsible for licenses.
- Officer checks application.
- Application submitted to the Licence Committee.
- If application is processed and approved, the Chairman of the Licence Committee prepares minutes of their meeting with their recommendations and forwards them to the Minister of Finance.
- Minister of Finance then approves or refuses each application as presented in the minutes. His decision is the final decision. The Committee has only an advisory role.
- The Chairman of the Committee, the First Secretary of Finance writes individual letters advising the applicants of the approval of refusal of their application.
- With the letter of the First Secretary, the applicant presents himself to the Department of Finance, and pays his business licence fee and presents any documentation as required.
- The business licence is then forwarded to him.
If normal procedures are followed, the applicant has no direct contact with the Minister of Finance and never sees the Minister’s signature on any of his documents. The Rates Officer or the First Secretary follows up the matter and signs the letter of approval on the application form.
[3.3.3] NORMAL PROCEDURE FOR THE PAYMENT OF THE LIQUOR LICENCE FEE
Even though the authorisation for the granting of the liquor licence is given by another Ministry (Home Affairs and Municipality) the payment is always made at the Department of Rates and Taxes. The normal procedure includes the following steps:
- Applicant collects form from the Department of Rates and Taxes, completes it;
- Applicant or the Department remits it to Municipality;
- The Municipal Council meets and decides upon the application, taking into account the terms of the Physical Planning Act and of the Liquor Licence Act;
- Application is forwarded to the Ministry of Home Affairs who approves or refuses the application;
- Application goes also to the Police for consultation;
- Application returns to the Department of Rates and Taxes duly signed by the Municipality and the Minister of Home Affairs;
- Applicant pays his liquor licence fee;
- Liquor licence is then issued.
[3.3.4] IMPROPER PROCEDURES FOLLOWED IN THE APPLICATION OF THE LICENCE OF NAMBAWAN BOTTLE SHOP
- According to Mr Luankon, on 26.08.94 Mr Charlie Pakoa brought the application directly to the Minister to sign. The Minister of Finance affixed his Ministerial stamp and signed the application form in the part of the form reserved for the Administration. Two licence categories were written on the application D3 (c) (applied for), D1 (not actually applied for).
- Usually the applications are not remitted to the Minister of Finance, only the Minutes of the Committee meeting are remitted to him; furthermore an additional licence was granted (not applied for).
- At the time of the final payment of the fee, normal checks were not done by the Customs Officer delivering the licences:
- The business name was not registered and no one at the Department of Rates and Taxes requested to see the proof of the registration as requested in the First Secretary's letter dated 06.09.94.
- Granting of Licence D1 even though it was not applied for.
- Payment of the fee for liquor licence was accepted even though there was no signature of Municipality or Home Affairs Minister on it. In fact the form was blank and the application for liquor licence had actually been refused by the Municipality.
[3.3.5] LAW RELATING TO ALLEGED BREACHES OF THE BUSINESS LICENCE ACT
A. False Declaration in the application for the business licence
Section 4 (2) makes it an offence to make such a false declaration states:
"Any person who without reasonable cause for believing it to be true, makes or is privy to the making of any false statement, in any application made under this section shall be guilty of an offence.
Penalty: a fine not exceeding Vt100,000 or imprisonment not exceeding 3 months or both."
The licensing application for D3 (c) detailing and wholesaling was presented on 02.08.94 at the Department of Rates and Taxes.
Philippe Luankon filled in the application form and his name was given as the name of the sole proprietor of the Business.
"Proprietor" in the Act is defined as:
"The owner of a business or any natural person or corporation carrying on a business within Vanuatu on his or its own account, in association with others or on behalf of a person outside Vanuatu".
The application stated that:
Philippe Luankon applied for licences as a sole proprietor (as opposed to a partnership or a limited company).
B. No Registration of Business Name in infraction of the Business Licence Act
Section 5 (1A) of the Business Licence Act provides that a licence shall not be issued or renewed where a business name is used unless the name is registered.
states:
"Notwithstanding subsection (1) no licence shall be issued to or renewed in favour of any person required to register a business name under the Business Names Act unless that person satisfies the licensing authority that the business name is registered under that Act and that he is registered as the user thereof."
Section 18 provides for penalties.
C. Cancellation of Licence
The law states clearly that no business licence should be issued or renewed if the business name is not registered.
[3.3.6] SUMMARY OF SECTIONS OF THE BUSINESS LICENCE ACT APPLICABLE FOR THE ALLEGED BREACHES
- False declaration section 4 (2);
- No Registration Of Business Name Section 5 (1) (A);
- Section 18 outlines, penalties for the breach of section 5;
- Section 19 provides, for the cancellation of the licence when there are any offence under this Act.
[3.4] THE PHYSICAL PLANNING ACT
This Act regulates the conditions for granting a liquor licence, and the appeal procedure.
[3.4.1] GRANTING OF LIQUOR LICENCE
The granting of the liquor licence is subject to certain provisions of the Physical Planning Act.
This Act gives the Municipality of Port Vila the authority to grant the liquor licence under section 5.
(1) Approval must be granted by the Municipality for a "material change of use." This "means any change of use of a building or land which so alters the character of the building or land such that the new use lies outside the use class of the former or existing use classes".
"Retailing liquor" is included among these uses.
Therefore in accordance with section 5, an application had to be submitted to Municipality by the shareholders to have the business either on "D Dock" or in "Melcoffee".
Section 5: "An application for development shall be made to the Council in such form and containing such information as the Council may specify, and shall be accompanied by such number of copies as the Council may specify."
"Development" and "material change of use" have a wide definition to give the Council a tighter control on development. Development is a material change of use which is not necessarily a new building but changing the use of a development such that it becomes markedly different from the previous use.
(2) This meant that in order to open a bottle shop in a certain location, approval had to be obtained for this location from the Municipal Council under the Physical Planning Act. This rule allows the Municipality to control development in the urban area for the well-being of the people, which is the purpose of the Physical Planning Act.
(3) The partners of the Nambawan Bottle Shop also had to obtain from the Municipal Council approval for the granting of a liquor licence under the Liquor Licensing Act
[3.4.2] APPEAL PROCEDURE UNDER THE PHYSICAL PLANNING ACT
1. Standard Procedure and Powers of the Minister
The Appeal procedure is to write to the Minister of Home Affairs via the Municipality then, in accordance with section 9 (1) of the Act: "/.../ the Council shall forthwith transmit such notice to the Minister."
When the Minister receives the appeal letter, he usually consults the Municipality and the Planning Unit (Physical Planner Harry Tete) who provides the Ministry with the required advice. The Minister considers the advice and opinions given to him and then decides under his powers as defined in section 9(3) which states that "/.../ the Minister may allow or dismiss the appeal or may reverse or vary any part of the decision of the Council and may deal with the application as if it had been made to him in the first place."
Finally a letter is written by the Minister to the applicant allowing or refusing the appeal, explaining the reasons of the refusal, or detailing the conditions of acceptance of the appeal.
2. Limits to the powers of the Minister as per the Physical Planning Act [Section 9(1,2,3)]
"Where an application is made under this Act to the Council for permission to develop, and such permission is refused or is granted subject to conditions, the applicant may, if aggrieved by the decision of the Council by notice served on it within 40 days from the receipt of notification of its decision, appeal to the Minister, and the Council shall forthwith transmit such notice to the Minister.
The Minister shall not entertain any appeal:
(a) submitted after the expiry of the time allowed for the appeal; or
(b) where it appears to the Minister that the application, in respect of which permission has been refused, could not have been granted by the Council or could not have been granted by the Council otherwise than subject to the conditions imposed upon it.
[3.4.3] PROCEDURE APPLIED IN THE APPEALS OF NAMBAWAN BOTTLE SHOP BOTH UNDER THE LIQUOR LICENSING ACT AND THE PHYSICAL PLANNING ACT
In the case of the appeal by the Nambawan Bottle Shop, two separate issues were dealt with together creating confusion that the Attorney General attempted to clarify in 1994, but to no avail because he never received any reply from the Minister of Home Affairs. One letter was sent by the partners of the Bottle Shop for both appeals and the Minister did not clearly state which appeal he accepted.
The appeals forwarded to the Minister of Home Affairs were:
1. Appeal for the authorisation to locate the business in Melcoffee under the Physical Planning Act;
2. Appeal under the Liquor Licensing Act in order to be granted the authorisation to operate outside of the working hours as defined in the Act, i.e.: to have a 24 hour operation.
ANOMALIES IN THE APPEAL PROCEDURE:
The Nambawan Bottle Shop did not clearly separate their appeals, and the Minister of Home Affairs did not help to clarify the matter as he simply applied his Ministerial stamp and put his signature on the Nambawan Bottle Shop shareholders' original letter addressed to him with the word "approved" written alongside.
Although the Minister of Home Affairs dealt with the refusal of the liquor licence application and the refusal of authorisation of location (change of use) under the Physical Planning Act, the granting of one appeal did not mean that the other one was automatically granted.
According to the Port Vila Municipality the letter of appeal dated 21.09.94 was not first submitted to them to forward to the Minister of Home Affairs.
The members of the Municipal Council were never requested to give the Minister the reasons of their original refusal in the Planning Committee meeting of 05.09.94. If they had been asked, they could have informed the Minister that:
- no other such licence existed in Vanuatu;
- the problem of locating the business on the main street was a serious and genuine problem as was foreseen by the Municipality.
[In fact, during the months of operation, accidents have occurred (as mentioned in the Minutes of the Planning Committee on 04.04.95 by Inspector Dudley Tari) confirming the correctness of the original concerns of the Municipal Council].
The Mayor or the Town Clerk could have dismissed the claim of jealousy of the Councillors as irrelevant and without grounds.
A copy of the appeal letter was sent to the Municipality for information purposes only after the Minister of Home Affairs had affixed his stamp and his signature with the words "licence approved". By then it was of course too late for the Council to make any comment, or give any advice to the Minister.
No advice was requested from the Physical Planning Unit at the Home Affairs Ministry. The Planning unit is the entity within the Ministry of Home Affairs which has the expertise to prepare replies to Appeals, in collaboration with the Minister of Home Affairs.
In this case, no file was prepared and no letter was written from the Physical Planning Unit or from the Ministry outlining the reasons for accepting the appeal and the conditions applying to this licence.
Because of these irregular circumstances, the Attorney General wrote to the Minister of Home Affairs on 08.11.94 asking him to clarify his decision, and the reasons for it. The Minister of Home Affairs, as far as the Ombudsman is aware, never replied to the Attorney General’s letter.
[3.3.4] SUMMARY OF ALLEGED BREACHES OF THE PHYSICAL PLANNING ACT
Breach of Section 9 (2) (b) by the Minister of Home Affairs when granting an appeal that "could not have been granted by the Council"
Breaches of procedures in the appeal proceedings by the Minister of Home Affairs when handling the appeal of the partners of Nambawan Bottle Shop against the Municipal Council of Port Vila.
[3.5] THE LIQUOR LICENSING ACT
[3.5.1] This Act prescribes standards for the licensed premises, controls the importation, sale and supply of alcoholic liquor including penalties for non-compliance with the given regulations.
Licences are issued for a period of one year and run from the 1st of January to the 31st of December.
New applications must be submitted every year before the 31st of January (section 12 (3)).
[3.5.2] POWERS OF THE MINISTER AND MUNICIPALITY
The Minister of Home Affairs is the Minister responsible for the application of the Liquor Licensing Act.
The Minister of Home Affairs may appoint a licensing officer who will consider the licence application and the licence can be issued by the Minister or the licensing officer.
The Municipality of Port Vila has been acting as a licensing officer and processes all the applications for liquor licences, checking their compliance with the Act and with the Physical Planning Act. Once the Municipality approves an application, the form goes to the Minister of Home Affairs, and if there is no opposition from both the Municipality and the Ministry of Home Affairs, they sign the form and the applicant can present the form signed by the Municipality and the Minister of Home Affairs to the Department of Rates and Taxes who will then issue the licence, after receiving the appropriate fee.
[3.5.3] MINISTERIAL DISCRETION AND COMMENTS ON SECTION 18(5) OF THE LIQUOR LICENSING ACT
The Act provides for certain special powers of the Minister of Home Affairs.
Section 18 (5) reads as follows:
"The Minister may in his discretion upon the granting or renewal of any licence prescribe special hours of opening of the premises licensed and direct that the appropriate licence fee shall be increased or reduced proportionally."
However, ministerial discretion in a system of cabinet government such as established by the Vanuatu Constitution does nor empower a Minister "to do what he likes but requires him to do what he ought" (case Roberts -v-Others [1925] All ER 24Rep24).
"The key principle of the Ministerial Discretion at Common Law is that it is the Ministers’ duty not to act so as to frustrate the policy of the Act.
In other words, the discretion given to a Minister by an Act is a discretion to be exercised in accordance with the overall principles of the Act, not to simply act contrary to its principles if he feels like doing so." (letter of the Attorney General to the Ombudsman dated 16.06.95)
Section 18 (5) can hardly be interpreted to permit the Minister to grant a 24 hour licence. What the section deals with is to confer on the Minister a general power to extend trading hours, in appropriate circumstances beyond the strictly enforced hours mentioned in the preceding four subsections. The section cannot be properly interpreted in any other way. For obvious reasons, liquor licensing hours must be enforced within the requirements of the Act subject to section 18 (5).
Whilst it is acknowledged that the Minister has a discretion under section 18 (5), his discretion is only limited to the granting to licensed premises of "special hours" of opening.
Whilst "special hours" of opening are not defined in the Act, the use of the word "special " indicates that exemptions under section 18 (5) should only relate to special occasions and circumstances such as a celebration, a special event, etc..
This section cannot be interpreted to give the Minister a discretion to approve unlimited hours of opening 365 days a year, otherwise it would make the remainder of the Act redundant.
In order to operate such an activity legally, "the correct approach to granting 24 hours 7 days a week licences is to pass an amendment to the law. This would first require approval in principal by the Council of Ministers" (letter of the Attorney General to the Ombudsman dated 28.03.95).
In this case the Minister of Home Affairs used his power of discretion in a way that can be questioned under the Leadership Code (see section 4.3.2).
[3.5.4] LIQUOR LICENCE
Section 3(1) states:
"No person shall sell liquor for consumption off the premises at which his trade is carried on unless he has first obtained either-
(a) an Urban General Off Licence permitting the sale of all kinds of liquor from premises situated within the municipalities of Port Vila and Luganville..."
If the person selling alcohol does not have a licence, the penalty applicable is detailed in Section24(1) of the Liquor Licensing Act .:
"Any person who contravenes the provisions of sections 2,3,...or any regulations made under this Act shall be guilty of an offence and upon conviction thereof shall be liable to a fine not exceeding VT50,000..."
[3.5.5] POWERS OF THE POLICE UNDER THE LIQUOR LICENSING ACT
According to section 22 (2)of the Liquor Licensing Act:
"Any member of the Vanuatu police force who is of or above the rank of sergeant or any licensing officer may order the immediate closure of any licensed premises in the interest of peace and good order:
Provided that such closure shall not be maintained for a period exceeding 3 days without a confirming order to this effect issued by the court."
Because of the repetitive problems occurring in the vicinity of the Bottle Shop premises, an order to close the licensed premises could have been obtained from the Court in accordance with section 22 (3) of the same Act.
This Act imposes stringent controls over the selling of liquor both with respect to hours of operation and the conditions of its operation.
[3.5.6] OTHER SECTIONS OF THE LAW APPLICABLE
- "The Act forbids to sell or supply liquor to any person who is in state of manifest intoxication" (section 16.1).
The people living close by have alleged that drunk people have been continually seen in the vicinity of the Bottle Shop consuming alcohol, and purchasing alcohol even though they were in an advanced state of drunkenness.
The Shop's opening hours especially during the middle of the night made it very attractive as a gathering point for people after the closing hours of the nightclubs (3 a.m.), and they have usually been consuming alcohol before they come to the Bottle Shop.
If it is proven that Nambawan Bottle Shop sold alcohol to people who are "in a state of manifest intoxication", the licensees should be liable for the penalties outlined in section 24 (2) of the Liquor Licensing Act (fine Vt 25,000 to Vt 50,000 and/ or imprisonment):
[3.6] POLICE ACT (CAP 1O5)
Furthermore the Police Force has powers of action under the Police
[3.6.1] In accordance with section 4(2) of the Police Act:
"The Force shall be employed... for...
(a) the preservation of peace and the maintenance of order...
(b) the enforcement of laws etc..."
[3.6.2] GENERAL POWERS AND DUTIES OF THE FORCE
Section 35 (2) states that It shall be the duty of every member to prevent the commission of offences and public nuisances, to detect and bring offenders to justice:
" It shall be the duty of every member to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons that he is legally authorised to apprehend and for whose apprehension sufficient ground exists."
[3.6.3] POWER TO INSPECT LICENCES
Section 38 provides power to the police to inspect premises and the licence thereof states:
"(1) It shall be lawful for any member to stop and detain any person whom he sees doing any act for which a licence or permit is required under the provisions of any law for the time being in force and to require such person to produce his licence or permit.
(2) Any person who fails to produce such licence or permit when called upon to do so by a member may be arrested without a warrant unless he gives his name and address or otherwise satisfies the member that he will duly answer any summons or other proceedings which may be taken against him".
[3.7] CONSTITUTION
[3.7.1] FUNDAMENTAL RIGHTS
One of the major Fundamental Rights under the Constitution of Vanuatu is in Article 5 (1)(k):
"All persons are entitled to the following fundamental rights and freedoms of the individual without any discrimination ....../.../
equal treatment under the Law or administrative action".
In this case:
- only one shop in Vanuatu obtained this authorisation to open a general liquor store 24 hours a day and this was Nambawan Bottle Shop.
[3.7.2] LEADERSHIP CODE
Article 66 (1) of the Constitution states:
"Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to:
(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;
(b) demean his office or position;
(c) allow his integrity to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the Government of Vanuatu."
Article 66 (2) states:
"In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by section (1)."
Section 14 (4) (a) of the Ombudsman Act authorises the Ombudsman to enquire into the conduct of leaders. This definition includes the Minister of Finance and the Minister of Home Affairs
CHAPTER 4
FINDINGS OF ALLEGED MISCONDUCT
[4.1] ALLEGED VIOLATIONS OF LAWS
FINDING NO 1: BREACH OF SECTION 4(2) OF THE BUSINESS LICENCE ACT:
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
- BY PHILIPPE LUANKON
Minister Willie Jimmy
By "being privy to the making of any false statement in the application" under the Business Licence Act [section 4(2)] Minister Willie Jimmy committed an offence under this Act.
Minister Willie Jimmy at the outset, did not declare his interest when Mr Luankon first applied for the licence, but:
- on 21.09.94, Honourable Minister Willie Jimmy wrote a letter to the Minister of Home Affairs stating that he was a shareholder in the company,
- according to the Minister’s own letter to the Ombudsman’s Office on 30.11.94, he was a partner, a shareholder.
This was confirmed by Mr Luankon, who said that he was originally contacted by the political appointee, Charlie Pakoa, to become the Manager of the shop. From the information obtained during the inquiry it is concluded that Minister Willie Jimmy and Charlie Pakoa both asked Mr Luankon to put only his name on the application in August 1994 because the Minister and the Office Supervisor did not want to be seen publicly as being involved. They asked him to act secretly on their behalf and make the application in his own personal name.
On 02.06.95 Honourable Minister Willie Jimmy wrote to the Ombudsman stating that:
"Directors and shareholders.
The first Directors of the company were as follows:
| 1. Principal Shareholder | Willie Jimmy Preferential Shareholder |
| 2. Philippe Luankon | Ordinary Shareholder |
| 3. Charlie Pakoa | Ordinary Shareholder. |
Mr Philippe Luankon was then chosen as the first Manager of the Bottle shop until his termination on 31.01.95".
However this declaration was not reflected in any business licence application nor in any business name application.
Mr Charlie Pakoa also admitted to the Ombudsman that:
- he created the business of Nambawan Bottle Shop with Minister Willie Jimmy, and that he was a partner from the beginning;
- that he took care of the business licence application;
- that he did not want to be seen originally as being one of the owners of the business to avoid any conflict of interest with his position of Office Supervisor in the Ministry of Finance.
Mr Philippe Luankon, as manager of the Nambawan Bottle Shop from the beginning is the person who signed the application form for the business licences, in breach of section 4(2) of the Business Licence Act as he illegally declared that he was the sole proprietor of the operation, but he apparently was not a shareholder/partner, even though he was at times referred to as one. He never put any money in the business and never received anything when he was dismissed, nor did he sign any transfer of any of his rights to the new partner, Alick Kokona.
FINDING NO 2: BREACH OF SECTION 5 (I) OF THE BUSINESS LICENCE ACT:
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
The partners of Nambawan Bottle Shop were also in breach of Section 5(1) of the Act on the basis of the non-registration of their business both when the original licences were issued in September 1994 and when they were renewed in May 1995.
The partners of the business had been warned repeatedly by the Vanuatu Financial Services Commission of the legal duty to register the business name, however the partners did not register the business name for ten months after the beginning of the commercial activity.
According to this section of the Law the licensing authorities should never have issued or renewed the business licences of Nambawan Bottle Shop.
The penalties under section 18 of the Act are applicable (a fine not exceeding Vt.50.000 or to imprisonment not exceeding three months or to both) and the Minister could under Section 19 cancel the licence because of the offences committed under the Business Licence Act. Furthermore under section 8 (a) of the Business Licence Act, the Minister has even wider power to cancel the licences.
FINDING NO 3: BREACH OF SECTION 3(1) OF THE LIQUOR LICENSING ACT (CAP52)
- BY PHILIPPE LUANKON
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
In 1994, no liquor licence was issued for the Nambawan Bottle Shop and they operated without licence from the date of their creation in September 1994 till the end of 1994.
The liquor licence had not been issued following the advice of the Attorney General to the Department of Rates and Taxes pending further clarification from the Minister of Home Affairs' approval of the Nambawan Bottle Shop's appeal.
Up to 31st May 1995, no liquor licence was issued, because the Municipality in its meeting of 04.04.95 decided that no such licence existed and deferred the 1995 application for the Minister of Home Affairs to make the final decision.
However, on 31.05.95, following a request from the Superintendent Mr Vake Rakau to the Bottle Shop to produce a liquor licence document, the Minister of Home Affairs wrote to the Police Commissioner and informed him that he accepted to grant another unique "special hours" licence to the Nambawan Bottle Shop for 1995 under the following specific conditions:
(a) Monday to Thursday shop will be open until 9 p.m. only,
(b) Friday and Saturday shop will be open until 12 o'clock midnight only,
(c) Sunday not authorised to sell any beverage.
The Nambawan Bottle Shop had operated in 1994 since its creation without a licence and there are penalties for such a breach of the law outlined in section 24 (1) [fines not exceeding Vt 50,000].
In this case, no prosecution was ever commenced and no fine was ever charged.
FINDING NO 4: BREACH OF SECTION 2 (1) OF THE BUSINESS NAMES ACT No 6 of 1990:
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
It appears clearly that the shareholders/partners of Nambawan Bottle Shop were in breach of section 2 of the Business Names Act as they did not register their business name for 10 months after the opening of the business despite being warned of prosecution on different occasions by the Commissioner of the Vanuatu Financial Services Commission.
The penalties applicable could amount approximately to Vt.3,000,000 (maximum of Vt.10,000 per day for not registering the business name) under the above section.
The partners were not charged under this section and only paid Vt.8,000 as fine for the full 10 months delay.
According to Mr Luankon, Minister Willie Jimmy and Charlie Pakoa, as the partners of the business, were responsible for the paper work as it was "their field" while Mr Luankon, as manager, was dealing with the practical side of setting up the business.
FINDING NO 5 BREACH OF LEASE No 11/OF23/022 UNDER THE LAND LEASES ACT [CAP 163]
- BY MR BA VINH NGUYEN
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
The Lessees of the land (Mr Ba Vinh Nguyen and his tenants, the partners of Nambawan Bottle Shop) appear to be in breach of their lease both:
- on the basis of the nuisance they caused to the neighbourhood (in breach of schedule 4 of their lease;
- and on the basis of the status of the lease (residential instead of commercial);
and could be subject to forfeiture under section 45 of the Land Leases Act.
FINDING NO 6 BREACH OF SECTION 3(1) OF THE LIQUOR LICENCING ACT
- BY FORMER MINISTER WILLIE JIMMY
- BY CHARLIE PAKOA
The Liquor Licensing Act states in section 3 (1) that no person shall sell liquor for consumption off the premises at which his trade is carried on unless he has first obtained either:
"an Urban General Off Licence..."
The Nambawan Bottle Shop had operated in 1994 since its creation without the actual liquor licence document and there are penalties for such a breach of the law outlined in section 24 (1) [fines not exceeding Vt 50,000].
In this case, no prosecution was ever commenced and no fine was ever charged until the appointment of Superintendent Rakau on 18 April 1995. The Superintendent became responsible for following up the Nambawan Bottle Shop and wrote to the Nambawan Bottle Shop a letter on 24.05.95 requesting to see the Liquor licence and requesting them to produce it or on before the 5.06.95.
The first official licence was issued by the Minister of Home Affairs on 31.05.95.
FINDING NO 7 BREACH OF SECTION 9(1)(b) OF THE PHYSICAL PLANNING ACT
- BY MINISTER CHARLIE NAKO
It appears that the Minister of Home Affairs was in breach of Section 9(1)(b) of the Physical Planning Act.
The Act recommends that the Minister should not entertain any appeal if the permission which "has been refused could not have been granted by the Council or could not have been granted by the Council otherwise than subject to the conditions imposed upon it".
In this case it was obvious that the Municipal Council could not legally have issued such a licence and therefore the Minister should have taken this into consideration, but he did not, nor did he even contact the Municipality at the time of the appeal.
[4.2] ALLEGED VIOLATIONS OF CONSTITUTIONAL PROVISIONS
[4.2.1] BREACHES OF THE LEADERSHIP CODE
- BY FORMER MINISTER WILLIE JIMMY AND
- BY MINISTER CHARLIE NAKO
The breaches of the Leadership Code constitute the most serious offences of this whole investigation and involve mainly Minister Willie Jimmy and to a lesser extent Minister Charlie Nako.
Minister Willie Jimmy violated almost every aspect of the Leadership Code as outlined in Article 66 of the Constitution.
FINDING NO 8 PLACING HIMSELF IN A POSITION OF CONFLICT OF INTEREST IN BREACH OF ARTICLE 66 (1)(A) OF THE LEADERSHIP CODE
- BY FORMER MINISTER WILLIE JIMMY
Minister Willie Jimmy breached of the leadership code:
(1) "Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to:
(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised."
Minister Willie Jimmy abused his ministerial position to further his own interest and placed himself in a situation of conflict of interest.
Philippe Luankon, the first Manager of Nambawan Bottle Shop declared in writing to the Office of the Ombudsman:
"The setting up of the operation was made possible because of the Minister’s political interventions to the Ministry of Home Affairs, the Police Force, the Licensing Office, Rates and Taxes, the Municipality of Port Vila".
1] Minister Willie Jimmy telephoned the Municipal Town Clerk on 18.09.94, 2 days after receiving the Municipal Council’s refusal for the 24 hour liquor licence application, threatening him that he would not grant duty exemptions to the imports of the Municipality because of their refusal of a 24 hour liquor licence.
2] Mr Willie Jimmy applied to Minister Willie Jimmy through a nominee, Philippe Luankon for a business licence without disclosing his interest in the entity applying for the licence:
On the one hand Mr Willie Jimmy is the Minister responsible for business licences, setting up the licence committee and the procedures.
On the other hand, he was the hidden applicant (the principal partner of Nambawan Bottle Shop as admitted by himself in his letter dated 02.06.95 to the Ombudsman) using his position as Minister to contravene these procedures (for example signing and stamping personally the application brought to him by C. Pakoa on 26/08/94 before the Minutes of the licence committee were actually forwarded to him for approval on 29/08/94).
3] Granting to Nambawan Bottle Shop of an import licence(D1) by Minister Willie Jimmy that was never applied for by the applicant.
When on 2/8/94 Philippe Luankon submitted his application, there was no mention of licence D(1).
However on 26/8/94, when the application reached the Minister of Finance, the licence D(1) was hand-written in the section reserved for official use only where the Minister affixed his seal and signed.
This example clearly shows that, at all times, during this business licence application, the Minister was acting simultaneously as main shareholder of the Nambawan Bottle Shop, considering the needs of the business that the applicant, Philippe Luankon, had omitted to include in his application and also as Minister of Finance. This situation demonstrates unambiguously a conflict of interest for the Minister of Finance.
4] On 26.08.94 the Minister of Finance affixed his official ministerial seal on the business licence application with his signature approving it. This was an unusual procedure (in that applications are usually handled by the Licence Committee and the Chairman of the Licence Committee, and the application returns to the Customs Department and Rates Taxes for payment). This form was then forwarded through Charlie Pakoa, political appointee, to Mr Philippe Luankon, the Manager, who was then told to go and pay his licence fee (contrary to normal procedure).
The result, as can be expected from a direct intervention of the Minister in charge was that when Philippe Luankon brought the form to the Customs Agent, Mr Warren, he was duly satisfied and accepted the payment for all three licences and did not check the registration of the business name, or whether the liquor licence was signed or not. The Customs Agent during his interview with the Ombudsman said that when he saw the Minister’s signature, he assumed everything was proper.
5] Minister Willie Jimmy abused his ministerial position to further his own interest by writing the 21.09.94 Nambawan Bottle Shop letter of appeal to the Minister of Home Affairs on his Ministerial letterhead.
6] Minister Willie Jimmy was the Minister responsible for the Business Licence Act and under this Act offences should have been prosecuted and penalties should have been enforced under sections 4(2), 5(1)(a), 8(a) 18, 19 of the Business Licence Act.
The Minister of Finance, as Minister responsible for the enforcement of this Act, had the power to:
- request prosecution for breaches of the Act such as sections 4(2) and 5(1);
- cancel a licence under sections 8 (a) and 19 of the Business Licence Act in cases of breaches like the ones committed (breaches of section 4(2) and 5(1) of this Act;
- However, in this case, even though the whole matter of the opening of the Nambawan Bottle Shop became quite a controversial matter in the community, none of the anomalies or breaches were prosecuted at the request of the Minister of Finance whose duty it was to enforce the Business Licence Act.
This situation represents a clear and significant conflict of interest for the Minister of Finance who was both the licensee having committed breaches of the Business Licence Act and the Minister in charge of enforcing sanctions for these breaches against himself.
7] The personnel of the Ministry and of the Department of Finance also have powers to either refuse to issue the licences if the proper procedures are not followed or if the licences do not fulfil the proper conditions. However the enforcement of these rules and regulations against the Minister of Finance’ s own business is difficult as the Minister is their "boss" and holds considerable power over their conditions of employment.
CONCLUSION:
Minister Willie Jimmy should not have directly approved the Business Licences whilst at the same time having an undisclosed pecuniary interest in the matter. He should not have breached the normal procedures as quite clearly he was in a position of conflict of interest, when discharging his official duties of office, in apparent contravention of to the principles of good leadership enunciated in Chapter 10 (Article 66) of the Constitution.
FINDING NO 9 FAILURE TO EXERCISE FAIRLY HIS PUBLIC OR OFFICIAL DUTIES IN BREACH OF ARTICLE 66 1(A) OF THE CONSTITUTION:
- BY FORMER MINISTER WILLIE JIMMY
Minister Willie Jimmy did not exercise fairly his public or official duties by:
- handling his application for Nambawan Bottle Shop in a different way from the other licences through his direct intervention and affixing of seal and signature on the application which facilitated the granting of the licences in contradiction with the normal requirements and procedures;
- using his Ministerial letter-head in matters relating to his personal business (appeal to the Minister of Home Affairs);
- not taking any punitive measures against Nambawan Bottle Shop for their breaches of the Business Licence Act.
FINDING NO 10 BREACH OF ARTICLE 66 (1) (a)(b) (c) AND (d) OF THE LEADERSHIP CODE
- BY FORMER MINISTER WILLIE JIMMY
- For ABUSING HIS MINISTERIAL POSITION AND POWER
(b) demean his office or position;
(c) allow his integrity to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the Government of Vanuatu."
Minister Willie Jimmy demeaned his office and allowed his integrity to be called into question because:
1. By pressuring the Minister of Home Affairs to grant him the 24 hours liquor licence, Minister Willie Jimmy intimidated his ministerial colleague, Mr Charlie Nako, through repeated telephone calls and by making a personal visit to him in order to obtain the granting of the appeal. In his discussions with the Ombudsman, the Minister of Home Affairs (in common with other interviewees from the Municipality, the Police and the Ministry of Finance itself) conveyed the impression that in opposing the wishes of the Minister of Finance, he, like the others, would be exposing himself to some vaguely undefined form of retaliation or reprisal.
2. By threatening the Town Clerk and the Municipality not to grant duty exemptions to the Municipality.
As indicated above, the Minister abused his ministerial power to grant duty exemptions by attempting to coerce the Municipality into granting his personal business a special liquor licence.
The Ombudsman wrote to the Minister on 07.12.94 requesting to know the reasons for refusing the exemption, but did not receive any answer.
FINDING NO 11 ENGAGING IN A COMMERCIAL ACTIVITY CONTRARY TO ARTICLE 66(2) OF LEADERSHIP CODE OF THE CONSTITUTION.
- BY FORMER MINISTER WILLIE JIMMY
Article 66 (2) states:
"in particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying or has carried out the duty imposed by subarticle (1)."
On 20.10.94, the Minister of Finance wrote to the Prime Minister to notify him of his interest in Nambawan Bottle Shop adding that he was only a sleeping partner as he did not want to "act further actively in the operation in order to uphold his interest and reputation to serve the Government".
It was found during this inquiry that the Minister of Finance was not a "sleeping partner" in Nambawan Bottle Shop but that he was effectively managing the bottle shop from his ministerial office.
A sleeping partner, as the term implies usually describes a person who has put some money in a business, but who does not take any part in the actual running of the business, however, Minister Willie Jimmy was not a sleeping partner according to the findings of this report:
Minister Willie Jimmy admitted in his letter of 02.06.95 to the Ombudsman that he negotiated the bank overdraft for the newly created business with NBV and according to Philippe Luankon, he was following directly the account with NBV on a regular basis.
From December 1994 the signatories on the accounts were Minister Willie Jimmy and Philippe Luankon. According to Philippe Luankon this meant that everyday Charlie Pakoa came to Nambawan Bottle Shop to collect the cheques to be signed by the Minister and returned them to Philippe Luankon. This was confirmed by Charlie Pakoa during his interview with the Ombudsman on 12.07.95.
In January 1994, Mr Luankon said that as he had not been able to control the overdraft, Minister Willie Jimmy decided to remove Mr Luankon as a signatory of the account. Minister Willie Jimmy therefore become the sole signatory on the account.
At the beginning of February 1995, Philippe Luankon was fired as Manager by the Minister of Finance and Alick Kokone took his place. According to Charlie Pakoa, Alick Kokone goes to the Minister’s office to bring the Nambawan Bottle Shop’s cheques to be signed by the sole signatory, Minister Willie Jimmy.
According to Philippe Luankon, Minister Willie Jimmy and Charlie Pakoa were responsible for all the paper work of the licences applications.
Minister Willie Jimmy dealt directly both with the Municipality and the Ministry of Home Affairs.
Mr Luankon stated that the work concerning all the original applications for the business licences and liquor licence was the responsibility of the Minister and Charlie Pakoa and that Mr Pakoa was responsible for the "paper work" of the Nambawan Bottle Shop.
In his letter of appeal to the Minister of Home Affairs on 21.09.94, Minister Willie Jimmy refers to phone calls he made to him concerning his personal business of Nambawan Bottle Shop. This means that during his working time, Minister Willie Jimmy was dealing with his private business and participating in the management of Nambawan Bottle Shop, contrary to what he stated to the Prime Minister.
What example should a Minister set?
The question here is what conduct might be expected from a Minister as far as a commercial activity is concerned:
Section 57(1) of the Constitution states that:
"Public Servants owe their allegiance to the Constitution and to the people of Vanuatu" and in the Public Service Manual are not entitled to have any commercial activity at all.
Minister Willie Jimmy does not have the status of Civil Servant but the public has a right to expect from Senior Public figures a higher level integrity and conduct.
Furthermore it is fully expected of a Minister that his whole time is at the disposal of the Government or the Nation, as that he would "owe allegiance to the Constitution and the people of Vanuatu" as requested from the civil servants under the Constitution.
As a Minister, Willie Jimmy is a Leader as defined in the Leadership Code and it is to be expected from him as with any other minister that he sets an appropriate example to the Public Servants working under him who are themselves strictly prohibited from involvement in any commercial activity or to conduct private business during their official working hours.
[4.2.2] FUNDAMENTAL RIGHTS AND LEADERSHIP CODE
FINDING NO 12 BREACH OF ONE OF THE FUNDAMENTAL RIGHTS OF THE CONSTITUTION OF EQUAL TREATMENT UNDER THE LAW AND ADMINISTRATIVE ACTION BY THE MINISTER OF HOME AFFAIRS (ART. 5 1 (K) OF THE CONSTITUTION)
BREACH OF THE LEADERSHIP CODE (ARTICLE 66 (1) (a)&(b) OF THE CONSTITUTION )
- BY MINISTER CHARLIE NAKO
1 - ARTICLE 5 1 (K) OF THE CONSTITUTION
The Minister of Home Affairs used his power of discretion under Section 18(5) of the Liquor Licensing Act [CAP 52] by:
Only one business obtained this 24 hour licence and the special hour licence, namely the Nambawan Bottle Shop.
Ministerial discretion is governed by the Constitution. Ministers must not exercise their discretion so as to breach the constitutional guarantee to all citizens of "equal treatment under the law and administrative action".
Minister Willie Jimmy received preferential treatment and a monopoly on the sale of alcohol at shop prices (as opposed to nightclub prices, from 9 p.m. to 7.30 a.m.) when the other stores were closed. Nambawan Bottle Shop was the only place in the whole country authorised to sell alcohol from 3 a.m. to 7.30 a.m. from September 1994 until mid 1995. When the Minister of Home Affairs renewed the Nambawan Bottle Shop’s licence for 1995, it was the only shop to be granted "special hours" of opening, this time from 9.00 pm to midnight on Fridays and Saturdays which once more created a monopoly for the Nambawan Bottle Shop during these hours.
Other licensees were not granted such privileges or scope to operate and therefore did not receive equal treatment by the administrative action of the Minister of Home Affairs.
If section 18 (5) of the Liquor Licensing Act could be interpreted to allow the Minister of Home Affairs to believe there were reasonable grounds to accept the Minister of Finance’s appeal on 21.09.94, and that it was legal for him to grant the appeal under the Liquor Licensing Act, there would seem to be no reason not to grant other extended licences to these who requested them, especially around the festive reason, but this never occurred.
These circumstances appear to constitute a breach of one of the fundamental constitutional rights of equality in front of the Law or action by Minister Charlie Nako for no other purpose but to please or appease Minister Willie Jimmy.
2 - ARTICLE 66(1) (a)&(b)
In doing this, Minister Charlie Nako also committed a breach of the Leadership Code which requires the leaders not to "place himself in a position in which the fair exercise of his public or official duty might be compromised". This type of unique treatment of a fellow Minister appears to be an unfair exercise of his official duty.
Respect for the Minister is not enhanced by such actions of favouritism but in fact it does the opposite in the eyes of the Public and as a result the Minister does "demean his position" as Minister, affecting the trust and confidence in the Government. In this case Minister Nako was not representing the National Interest but the interest of one colleague-Minister.
FINDING NO 13 BREACH OF THE LEADERSHIP CODE (ARTICLE 66 (1) (b)(c)&(d) OF THE CONSTITUTION)
BY MINISTER CHARLIE NAKO
Minister Charlie Nako through his handling of the Nambawan Bottle Shop Appeal "demeaned his office or position, he allowed his integrity to be called into question and diminished respect for and confidence in the integrity of the Government of Vanuatu".
These actions can be analysed and divided into 3 areas:
1. MINISTERIAL REASONS FOR ACCEPTING THE APPEAL AGAINST THE GRANTING OF A LIQUOR LICENCE TO NAMBAWAN BOTTLE SHOP
In a meeting on 14/12/94, the Ombudsman asked the Minister of Home Affairs why he had accepted the appeal. The reasons the Minister gave verbally to the Ombudsman seem hardly credible and did not reflect well on the Minister’s leadership (see 2.2.22).
The allegation or the fact of being pressured, no matter by whom, should not be a reason to take a government decision as Minister. Ultimately ministerial decisions must be made in the National Interest, and above all they must comply with the law.
The difficulty to control the other shops is also hardly a reason to allow the operation of another such premises. Surely the reverse decision would result from such a reason.
The Council of Ministers had already refused (01/08/94) a project of extension of the opening hours of liquor licences.
2. ALLEGED ILLEGAL USE OR MISUSE OF HIS POWER OF DISCRETION
The Minister of Home Affairs has the power of discretion to prescribe special hours of opening to licensed premises in section 18 (5), but not to grant a 24 hour liquor licence.
The main difficulties here arise from the Minister of Home Affairs misuse of his discretionary powers in accepting the appeals concerning the location and the material change of use, in that:
Even though the Minister of Home Affairs was warned repeatedly by the Attorney General and the Ombudsman concerning his potential illegal use of the discretionary section 18 of the Liquor Licensing Act, the Minister totally ignored the warnings and never answered either to the Attorney General or to the Ombudsman to officially explain or justify himself and his actions therefore constitute breaches to the Leadership Code as mentioned above.
3. MINISTER CHARLIE NAKO ALLOWED MINISTER WILLIE JIMMY TO PRESSURE HIM INTO SIGNING THE APPEAL IN FAVOUR OF NAMBAWAN BOTTLE SHOP
In his appeal letter to Minister Nako on 21 September 1994, Minister Willie Jimmy wrote:
"Further to our various discussions and subsequent telephone conversation today concerning the above matter subject..."
In his meeting with the Ombudsman on 13 December 1994, the Minister of Home Affairs admitted that one of his three reasons for granting the 24 hour licence was "the pressure by his colleague", the Minister of Finance, who telephoned him and came in person to his office to have his request accepted by him and signed directly by Minister Nako on the Nambawan Bottle Shop appeal letter so that the Minister of Finance could leave with it.
By his own admission, Minister Nako failed to act in a way that preserved the integrity and respect that both the Leadership Code demands of one in his position and that the Public has the right to expect.
[4.3] INACTION OF OFFICIALS
FINDING NO 14 FAILURE TO TAKE PROPER ADMINISTRATIVE STEPS BY THE MINISTER OF HOME AFFAIRS TO CONTROL THE LIQUOR OPERATION:
BY MINISTER CHARLIE NAKO
The Minister of Home Affairs could have imposed conditions upon the granting of the appeal by the Nambawan Bottle Shop as is the procedure in an appeal situation but he did not, he simply affixed his seal and signed his name with the words "approved" granting an unconditional 24 hour liquor licence.
The Minister of Home Affairs, when he became aware of all the complaints through the petitions and the serious social problems created by the Nambawan Bottle Shop, could have at any time used the same discretionary powers he used to grant this licence to cancel the "special hours" authorisation that he granted on 21.09.94 on appeal under section 18 (5) of the Act. The Minister of Finance had based his appeal on the condition that the operation would be effective and under control. However, considering the number and type of complaints, it appears clear that the business partners did not properly control the business of selling alcohol 24 hours per day.
Even though the Minister of Home Affairs assured the Ombudsman in meetings on 14.12.94 and on 10.04.95 that his intention was to withdraw the licence, he did not do so. He only wrote a warning letter to the Minister of Finance asking him to take better care, and on 31.05.95, he granted another unique "special hours" licence.
The Minister admitted his inability to control the operation of the other liquor licensees and justified to the Ombudsman his granting of this special liquor licence to Nambawan Bottle Shop by saying that the other licensees could not be controlled.
FINDING NO 15 INACTION
BY THE MEMBERS POLICE FORCE
Numerous allegations and complaints were made against the Nambawan Bottle Shop especially while it was operating on a 24 hour basis. These allegations could easily have been checked and prosecuted if the police, given the high number of complaints they received, proceeded with some form of regular control checks at different times and checked the condition of the clients of the Bottle Shop when they came on the premises.
However any such monitorings have proven very difficult to obtain from the Police as, an unfortunate degree of lethargy has characterised the Police reaction until Superintendent Rakau assumed charge of the matter from April 1995 to June 1995.
Following queries from the Ombudsman, Chief Inspector S.K. Willie advised some precise steps to take in his brief report on Nambawan Bottle Shop dated 17.01.95.
Inspector Karie stated on 17.01.95:
"Nine reports have been received and entered in the register. It seems that not much is being undertaken by Police in dealing with these reports.
I will advise O.C.P.S to instruct N.C.O.S to take more serious steps in dealing with reports of the Bottle Shop".
However the advice was not followed and on 24.05.95, Superintendent Rakau wrote to the Ombudsman:
"I regret to inform you that there is no report recorded in the Police Occurrence Book (POB) to justify what the Force have previously guaranteed "to instruct N.C.O.S to take more serious steps etc..." and "that on special weekends a police truck would be patrolling every two hours or so in the area of Nambawan Bottle Shop".
The members of the Vanuatu Police Force have also shown very little diligence and initiative in their actions.
No action was taken under any law, even though they were advised that the Nambawan Bottle Shop did not have the proper liquor licence. The Nambawan Bottle Shop has continued to open after hours with the last complaint about such being put to Willie Jimmy M.P. on the 23rd day of April 1996 concerning the shop being open after hours.
Police Action seems only to have taken place when Mr Vake Rakau was appointed as Force Legal Officer on 18 April 1995. Superintendent Vake Rakau requested information from the Financial Services Commission (20.05.95), and wrote to the Manager of Nambawan Bottle Shop giving him 7 days to produce their liquor licence in accordance with section 38 of the Police Act.
Mr Rakau was transferred to the Prisons Administration at the beginning of June by the Police Service Commission. The Commission cancelled the appointment on the basis that such a position of Force Legal Officer did not exist in the Police Chart.
It was very regrettable that the cancellation of Mr Rakau’s appointment came when some action was at last being taken against the Nambawan Bottle Shop for the first time since the beginning of the Ombudsman’s inquiry as it reinforces the feeling and fear that the Ombudsman has found during her inquiry, ie. that it is preferable not to oppose Minister Willie Jimmy, otherwise unwelcome consequences will be experienced by the person who has stood in his way.
FINDING NO 16 INACTION UNDER THE LAND LEASES ACT
BY MINISTER OF NATURAL RESOURCES PAUL TELUKLUK
The Office of the Ombudsman wrote to the Minister of Natural Resources on 18th January 1995 and 15th March 1995 to inform him of the Ombudsman's inquiry on the Nambawan Bottle Shop and requesting to know what actions the Minister had taken concerning the complaints of breach of lease made by neighbours of the Nambawan Bottle Shop, and warning the Minister that if the Ministry took no action, this lack of action would need to be noted in the Ombudsman's final report.
According to the Land Leases Act the Minister of Natural Resources should have informed the lessee and sub lessee of the complaint and of the breach of lease and request them to remedy the breach.
If the lessee or sub lessee did not remedy the breach, then a procedure of forfeiture should have commenced.
In this case, the Minister of Natural Resources took no action and did not answer any of the Ombudsman’s letters.
It is difficult not to think that one of the reasons for his apparent reluctance to act, apart from maladministration, is the fact that the person in breach is the Minister of Finance, a cabinet colleague who holds considerable sway in the financial life of all the government departments and Ministries.
FINDING NO 17 INACTION AND DELAYING ACTION
BY THE COMMISSIONER OF THE VANUATU FINANCIAL SERVICES COMMISSION
The Vanuatu Financial Services Commission was aware from the beginning of the operation of Nambawan Bottle Shop that the business name was not registered, but little action was taken for 10 months which appears to be more than a reasonable delay for a straightforward procedure and does not require any other document than a simple form to complete and sign.
The Financial Services Commissioner wrote on different occasions (22.12.94 and 9.3.95 and 9.6.95) to advise the Ombudsman and the partners that appropriate action(ie: prosecution) was going to be taken against the partners of the shop for non-registration of the business name but no file was passed to the Public Prosecution by the Commissioner.
The Commissioner only enforced the penalties under section 18 of the Business Names Act and not section 2(3) of the same Act which is mandatory and involves much heavier penalties.
In fact, only Vt.8,000 was paid for not registering for more than 9 months when, in fact, the total of penalties applicable could have been up to Vt.3,000,000 (300 days at Vt.10,000 per day in accordance with section 2(3) of this Act).
CHAPTER 5
SUMMARY OF MISCONDUCT
[5.1] FORMER MINISTER WILLIE JIMMY
Former Minister Willie Jimmy committed the following breaches of the Law and of the Constitution, misconducts, offences.
1. Breach of Article 66(1)(A) of the Constitution (Leadership Code) (conflict of interest).
2. Breach of Article 66(1)(A) of the Constitution (the Leadership Code) (exercise of his public or official duties).
3. Breach of Article 66(1) (A)(B)(C)(D) of the Constitution (Leadership Code) (demean office - integrity called into question - respect and confidence in the integrity of the Government of Vanuatu).
4. Breach of Article 66(2) of the Constitution ("use of the office for personal gain").
5. Breach of section 4(2) of the Business Licence Act (false declaration).
Penalty: fine not exceeding Vt. 100.000 or imprisonment not exceeding 3 months or more.
6. Breach of section 5(1) of the Business Licence Act (non-registration of business name).
Penalty: fine not exceeding Vt. 50.000 or imprisonment not exceeding 3 months or to both.
7. Breach of section 3(1) of the Liquor Licensing Act (CAP52) (no licence)
Penalty: under section 24 fine not exceeding Vt50,000.
8. Breach of section 2(1) of the Business Names Act No.6 of 1990.
Penalty: maximum of Vt. 10.000 per day for now registering the business name.
9. Breach of lease 11/OF23/022 under the Land Lease Act.
Penalty: forfeiture of the lease or sublease.
As a result of the above breaches, offences, I am of the opinion that the leader, Minister Willie Jimmy, has breached his duties and responsibilities of office imposed on him under article 66 sub-articles (1)and (2) as a consequence the leader is guilty of misconduct in office in accordance with section 23 of the Ombudsman Act No.14 of 1995 and of Chapter 10 of the Constitution.
[5.2] MINISTER CHARLIE NAKO
1. Breach of Article 5(1)(k) of the Constitution (equal treatment under the Law and Administrative Action);
2. Breach of Article 66(1)(a) and (b) of the Leadership Code (Constitution);
3. Breach of Article 66(1)(b)(c)(d) of the Leadership Code (Constitution);
4. Breach of section 9(1)(b) of the Physical Planning Act;
5. Maladministration - Failure to take proper administrative steps to control the liquor operation. and breaches of the set procedure of appeal against decisions of the Municipal Council.
As a result of the above breaches, offences, I am of the opinion that the leader, Minister Charlie Nako, has breached his duties and responsibilities of office imposed on him under article 66(1) of the Constitution and as a consequence the leader is guilty of misconduct in office in accordance with section 23 of the Ombudsman Act No.14 of 1995 and of Chapter 10 of the Constitution.
[5.3] CHARLIE PAKOA
Charlie Pakoa as an Office Supervisor in the Ministry of Finance committed the following offences:
1. Breach of section 4 (2) of the Business Licence Act (false declaration).
Penalty: fine not exceeding Vt. 100.000 or imprisonment not exceeding 3 months or more.
2. Breach of section 5(1) of the Business Licence Act.
Penalty: fine not exceeding Vt. 50.000 or imprisonment not exceeding 3 months or to both.
3. Breach of section 3(1) of the Liquor Licensing Act (CAP52) (no licence).
Penalty: under section 24 fine not exceeding Vt50,000.
[5.4] PHILIPPE LUANKON
Even though Philippe Luankon was mentioned by the Minister of Finance as being a shareholder in his letter to the Ombudsman dated 02.06.95, there was no evidence that he ever had this status, either in the declaration of the business name where Alick Kokone appears instead and in the manner Philippe Luankon was terminated as manager of the Nambawan Bottle Shop, like an employee and not like a partner.
Therefore Philippe Luankon, as an employee, does not carry the same responsibility as the shareholders Minister Willie Jimmy and Charlie Pakoa and is guilty only of the following:
1. Breach of section 4(2) of the Business Licence Act.
Penalty: fine not exceeding Vt. 100.000 or imprisonment not exceeding 3 months or more.
2. Breach of section 3(1) of the Liquor Licensing Act (CAP52) (no licence).
Penalty: under section 24 fine not exceeding Vt50,000.
CHAPTER 6
RECOMMENDATIONS
[6.1] NO POSITION OF LEADERSHIP FOR MR WILLIE JIMMY.
Former Minister Willie Jimmy being in serious breach of the Leadership Code and having committed numerous breaches of the Law has shown himself to be unworthy of his leadership position he formally occupied or of any position of leader.
[6.2] REPRIMAND OF MINISTER CHARLIE NAKO and recommendations to any minister of home affairs
1. Minister Charlie Nako should be reprimanded by the Prime Minister and warned against abusing his power of discretion and to be directed to the advice of the Attorney General who has previously stated:
"the discretion given to a Minister by an Act is a discretion to be exercised in accordance with the overall principles of the Act, not to simply act contrary to its principles if he feels like doing so"."
2. Minister Charlie Nako should be made aware by the Prime Minister that it is a fundamental part of Ministerial duties not to "cave in" to pressure from a fellow Cabinet Minister, or from any other person or company, and instead to bear in mind at all times that he is an elected guardian of the public interest.
3. The Minister of Home Affairs should not accept to consider favourably appeals under the Physical Planning Act or the Liquor Licensing Act if the Municipal Council has cited sound reasons for refusing the application in the first place.
4. In considering the appeals against the Municipal Council decisions, the Minister of Home Affairs should be acutely aware of the importance of section 9 of the Physical Planning Act, with particular emphasis on the dangers of contravening this section, namely undermining the integrity of the Municipal Council, causing serious inconsistencies and irregularities in town planning which affect the population as a whole; and perhaps the most alarming consequence of all, that of eroding the spirit and resolve of the Municipal Council to maintain the standards required of them by creating the impression that the Minister may for whatever spurious or improper reasons overturn any decision they make.
[6.3] CANCELLATION OF THE SPECIAL HOURS OF THE NAMBAWAN BOTTLE SHOP LIQUOR LICENCE.
The Minister of Home Affairs has cancelled the special authorisation given under section 18 of the Liquor Licensing Act to Nambawan Bottle Shop to operate after legal opening hours on Fridays and Saturdays. I recommend that this situation remain as the Minister has not got the discretionary power to grant such an authorisation and on the basis that any special authorisation is in breach of the one of the fundamental rights of the Constitution of equality of treatment under the law .
[6.4] CANCELLATION OF BOTH BUSINESS LICENCES OF NAMBAWAN BOTTLE SHOP; OR RELOCATION OF THE BUSINESS TO ANOTHER LOCATION AS ORIGINALLY ADVISED
The current Minister of Finance should cancel the two business licences.
The business licences of Nambawan Bottle Shop should be withdrawn in accordance with either section 8A or with section 19 of the Business Licence Act because of the breaches and offences committed.
Or the business licences could be re-issued on the basis that:
The location of the business be changed to a more appropriate location (commercial) as suggested by the Minister of Home Affairs in his letter to the Minister of Finance on 19.12.94:
"Long personal lukluk blong me, se bai ikut more sapos yufala isave faenem wan place an removem shop I go aotsaed long midel eria blong taon"
The liquor licence be an "urban general off licence" with normal opening hours like the other shops.
[6.5] PROSECUTIONS AGAINST THE HON. MINISTER WILLIE JIMMY MP AND CHARLIE PAKOA FOR THEIR RESPECTIVE BREACHES OF THE LAW
The Public Prosecutor should proceed with the following prosecutions;
4.1 The original partners of Nambawan Bottle Shop (Philippe Luankon, Charlie Pakoa and Minister Willie Jimmy), should be prosecuted under the mandatory section 2(3) of the Business Names Act. Therefore the Commissioner of the Vanuatu Financial Services Commission should forward a report to the Public Prosecutor’s Office in order for the Public Prosecutor to proceed with the prosecution.
4.2 The shareholders/partners of Nambawan Bottle Shop are in breach of section 5(1) of the Business Licence Act and are liable to be prosecuted under section 18 of the Business Licence Act for not registering their business name from October 1994 to 21st June 1995.
4.3 Philippe Luankon, Charlie Pakoa and Minister Willie Jimmy should be prosecuted for their false declaration on their application of business licence under section 4(2) of the Business Licence Act.
[6.6] REVIEW OF THE LEASE No 11/OF23/022
Urban lease title No.11/OF23/022 should be reviewed by the Minister of Natural Resources.
The Minister of Natural Resources should require the surrender of this residential lease for the purpose of creating a commercial lease if the lease is to be used principally as the site for commercial activity
The Ministry of Natural Resources should warn the main lessee, Mr Nguyen Ba Wing that he could be in a position of forfeiture of his lease if, as lessee of the land title, he continues to permit the nuisances caused by his tenants.
[6.7] GENERAL POINTS
[6.7.1] INACTION OF THE POLICE FORCE
The Minister of Police (ie: the Prime Minister) and the Commissioner of Police must ensure that the Law and Order are respected in the country especially in matters related to licensed premises and openings hours.
Inaction of the Police allowed the Minister of Home Affairs to say that liquor licensees could not be properly controlled, therefore the Police should charge liquor licenses who open after their official opening hours.
The police should be instructed to properly register in the existing Occurrence Book all complaints and all actions taken by them in response to such complaints.
The Ombudsman’s Office will continue to investigate alleged inaction of the Police Force.
[6.7.2] PRIVATE BUSINESS, MINISTERS AND POLITICAL APPOINTEES
The Prime Minister should require his ministers and political appointees to sign a document committing themselves and their close family members not to enter into new private business themselves while they are in office, and to declare any existing business interest in the private sector to the Prime Minister and to the Ombudsman.
The Prime Minister should issue guidelines for a Code of Conduct for political appointees.
CHAPTER 7
CONCLUSION
In accordance with Article 63(1) of the Constitution and Section 22 of the Ombudsman Act No.14 of 1995, the Ombudsman requests the Prime Minister and the appropriate authorities involved in this case, the Minister of Home Affairs, the Minister of Natural Resources, the Public Prosecutor, the Commissioner of the Vanuatu Financial Services Commission, the Police Commissioner to put the above recommendations into effect and to notify this Office within 21 days of the date of receipt of this report and recommendations outlining what steps have been taken.
Dated this 20th August 1996.
MARIE-NOËLLE FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU.
8 APPENDIX A
NAMBAWAN BOTTLE SHOP - PRELIMINARY REPORT
NOTICE OF COMPLAINTS
REPLY BY HON. WILLIE JIMMY MP
INTRODUCTION
The complaints received by the Ombudsman referred to in the introduction of the Preliminary Report concerning the issuance of a licence to operate a 24 hour liquor shop (Nambawan Bottle Shop) in the heart of residential area (Melcoffee) had never been directed to me for comments in the first instance.
I would kindly request to see the copies of any written complaint which had been submitted to the Ombudsman and request her to investigate into the Nambawan Bottle Shop just approximately one (1) month after it came into operation.
The Nambawan Bottle Shop is not a bar. Clients are not permitted to buy beer or spirits and consume them in the shop premises or around the leased compound. Public notice warning our clients to respect the nature upon which the shop was licensed to operate under was put up in front of the door step which can be clearly seen at any time.
The idea to operate a 24 hour liquor shop only came about and developed due to what I've seen elsewhere e.g. Fiji, New Caledonia, Australia and New Zealand etc. Not everyone can afford to go to a bar or eat in the restaurant and can drink a beer or a spirit outside normal retail and major supermarket, trading hours e.g. Vanuatu Liquor Shop stopped selling beer and spirits from mid-day Saturday until 7.30 am the following Monday each week. Because of this long hours restriction over the weekend, we had over (5) liquor shops previously operating on 24 hours basis illegally but no investigation had been initiated and conducted into the legality of their operations.
When I decided to set up a 24 hour liquor shop as a business, I was quickly questioned by the Ombudsman and came under investigation immediately just one month after our operation. Although this particular premises may be classified under residential lease, it has been in the past operating as a general commercial retail shop which also sells beer, wines and spirits before it was leased out to Nambawan Bottle Shop. I am sure the Ombudsman would agree with me on this point seeing that she lived in the close vicinity of this area, and seem to have the first hand knowledge about what type of activities are going on around that area.
The concerns raised about the serious effect the Nambawan Bottle Shop was having on those who live close by the shop such as:
(a) the disturbance of the peace and quiet of their neighbourhood;
(b) hazardous traffic conditions brought about by flow of traffic;
(c) drunken patrons, invading gardens;
(d) shouting and singing into the night;
(e) vomiting and urine mess in compound to be cleaned up the next day.
I wish to ask the Ombudsman to provide me with first hand evidence including, date, time, months and names of any person or persons who were involved in points (a-e) above, and the name or names of neighbours who live close by that area who had been affected by such unacceptable attitudes and behaviour. I request this evidence because the Nambawan Bottle Shop had more than 3 securities over the weekend and public holidays to control the members of the public who want to buy drinks in the shop, and I had never been informed about those incidents by those security officers in the past. If the allegations above were true, the neighbours including the Ombudsman should have called the police and complained to them in the first place to investigate and prosecute those involved.
Finally, on the introduction concerning alleged irregularities uncovered over procedures employed in the issuance of the business licence and especially my pecuniary interest in the shop, it must be said that Ni-Vanuatu including myself, have very little knowledge about the procedures and requirements of different Acts of parliament which have to be complied with when setting up different types of businesses in Vanuatu.
In the above context I honestly thought that by writing a letter to the Speaker of Parliament and the Prime Minister informing them about my interest in the Nambawan Bottle Shop, I had completed the whole legal requirements after I had approved the Business Licence, and the Minister of Home Affairs (Honourable Charley Nako) had approved the Liquor Licence and the trading hour period as requested. Having lived in Vila for a long time I know for a fact that no Ni-Vanuatu would be prepared to operate a liquor shop, selling nothing else besides beer, wine and spirits at the set times if it cannot trade extra hours. We accepted to go into business because we were granted the licence at the discretion of the Minister of Home Affairs at that time, otherwise I would never operate such a shop.
To conclude my introductory remarks on the Ombudsman Preliminary Report, I respectfully request the Ombudsman to provide me with written evidence and personal concerns of neighbours who live nearby and have been affected badly through the operation of the Nambawan Bottle Shop as requested above.
Answer of the Ombudsman - 1st page.
Para 1 The Honourable Willie Jimmy was first contacted by the Ombudsman in writing on October 24, 1994 notifying him of the complaint. His reply is on record, containing personal and racist innuendo against the Ombudsman.
2 The Honourable Willie Jimmy is not entitled to see such copies.
3 The Nambawan Bottle Shop functioned in all important aspects as a bar. Clients were permitted to buy liquor and did consume them in and around the shop and in surrounding properties. The public notice was ignored and was not enforced.
4 The laws of other countries are entirely irrelevant, regardless of Honourable Willie Jimmy’s charitable concern to increase opportunities for drinking. Regarding other unlicensed activities, the Honourable Willie Jimmy at the time ought to have exercised his duty in taking appropriate action against them.
5 It is irrelevant whether the shop previously sold liquor. The complaint was based on multiple evidence of violation of permitted hours, as well as the illegal granting of permission to the Honourable. Minister of Finance to open a 24-hour license under Vanuatu Law (There is first-hand knowledge of the matters complained of, including shouting, fighting, defecating, urinating at all hours of the night especially during the holy day of the S D A, i.e. Saturday and the holy day of other religious bodies, i.e. Sundays.
7 The evidence sought is available from police records, despite the fact that over and over again they failed to respond promptly or at all. The allegation that The Honourable Willie Jimmy MP was never informed by those security officers is a reflection on their level of irresponsibility, and perhaps some indication of how they regarded The Honourable Willie Jimmy personally.
8 That claim is a sad reflection on the time of the Honourable Willie Jimmy in Government positions.
9 What is alleged as having been "honestly thought" is entirely irrelevant, even if it were true. The license was illegal, and illegally and unethically obtained by duress.
10 The Office of the Ombudsman will not disclose more evidence of the kind requested.
1. JURISDICTION AND PURPOSE OF INVESTIGATION
(1.1) Jurisdiction.
My view here is that before September 1995 the Ombudsman can only conduct an inquiry pursuant to Article 62 (1) and (2) of the constitution, as the Ombudsman Act only came into force after it was passed by parliament in September of 1995.
Answer of the Ombudsman - Disagreed/Refuted.
(1.2) Scope Of The Investigation.
The comments in paragraph 1.1 above are repeated.
My view here is that the purpose of the investigation was to enquire into the procedures upon which the licence was issued to Nambawan Bottle Shop, rather than to determine whether or not the licence should be annulled. The procedures adopted if contrary to law or based on error of law or of fact, unjust or blatantly unreasonable etc, is a matter for the court to decide on its interpretation.
Answer of the Ombudsman - Disagreed/Refuted.
(1.3) Method Of Inquiry.
The comments in paragraph 1.1 above are repeated.
The investigation and any information obtained between November 1994 and August 1995 can only be done in accordance with the provision of Article 62 (3) of the Constitution. Section 17 of the Ombudsman Act cannot be applied here as the method of inquiry was already well established before the Ombudsman Act was passed in Parliament and in fact the inquiry had already been conducted and was almost completed by the time the Act was passed by Parliament.
Answer of the Ombudsman - Disagreed/Refuted.
(1.4) Preliminary Report And Right To Be Heard.
This is where I feel that the Ombudsman had not been fair to give me a reasonable time to respond to her preliminary findings of fact and improper conduct as outlined under paragraph 1.2 above (Scope of the Investigation).
Answer of the Ombudsman - Disagreed/Refuted.
2. PRELIMINARY FINDINGS OF FACT
My view here is that preliminary findings of fact should not only be concerned with the alleged improper conduct and the series of events that led up to the issuance of the licence but should also include complaints received by neighbours who are affected by the operation of the shop.
Answer of the Ombudsman - Disagreed
(2.1) Licences Requested for the Operation of Nambawan Bottle Shop.
It was originally planned that the Bottle Shop will operate as a wholesale and retail liquor shop that is why an application for D3 (C) and D(1) licences were requested, to comply with the provisions required under the Business Licence Act (Cap 173).
Answer of the Ombudsman
2.1 What was allegedly "originally planned" is irrelevant.
(2.1.3) Liquor Licence.
I agree with the comments made by the Ombudsman under this heading. Only the Minister of Home Affairs and the Municipality are responsible to approve or refuse the liquor licence application in accordance with the provisions of the liquor licensing Act (Cap 52).
Answer of the Ombudsman - Gratified/Relieved
(2.1.4) 24 Hour Operation.
As mentioned in my introductory remarks, I am familiar with the operating hours set under the Liquor Licence Act (Cap 52) section 18 (2). We specifically applied to operate a 24 hour liquor shop believing and hoping that the Minister of Home Affairs under his discretionary powers under section 18 (5) of the Liquor Licensing Act can approve our application of which he did. We had no intention whatsoever to deceive the Minister or make him to believe or confuse him, and put him in a position where his position can be called into question in exercising his discretionary power. We honestly believed the Minister was lawfully exercising his discretion under section 18 (5) and we did not regard or take it for granted that the Minister was abusing his power when he approved our liquor licence on a 24 hour basis.
Answer of the Ombudsman
2.1.4 As Minister of Finance, the Honourable Willie Jimmy ought to have known the law before embarking on what is alleged to be "honestly believed". The subsequent coercive actions betray his claim.
(2.2) CHRONOLOGY
(2.2.1) Application for Business Licences.
Mr Philippe Luankon was chosen as one of the directors and shareholders in the Nambawan Bottle Shop. Because of my responsibility in public office, we decided that Mr Philippe Luankon be the first Managing Director of the Nambawan Bottle Shop. He was then told to go about and deal with business licence applications etc. It was first agreed that we would operate the bottle shop at D. Dock (Ballande Centre). However, when we discovered that the present premises at Melcoffee was available for lease we decided to change the location to Melcoffee. We didn't do any trading at the Ballande Centre D. Dock area. I cannot remember whether D3 (C) and D( 1 ) Business Licence Applications were lodged separately or together at the same time.
Answer of the Ombudsman
2.2.1 Even if The Honourable Willie Jimmy were offering evidence to support these claims, they would not mitigate his offence. That his memory serves him so badly is to be regretted.
(2.2.2) The Business Licence Committee has no power under the Act to approve any category of Business Licence application. The Business Licence Committee members are appointed by the Minister as an Advisory Body to the Minister. They screen all the applications that come in and make recommendations to the Minister, for approval or refusal. The Minutes of the Business Licence Committee are merely the record of all the licence applications that are dealt with by the Committee in any meeting held at any specific time or date.
Answer of the Ombudsman
2.2.2 The Honourable Willie Jimmy appears to have detailed knowledge and recall, despite his previous loss of memory.
(2.2.3) The Minister is not obliged to wait for the committees recommendations before he can sign any business licence application. The power to approve, refuse, revoke or not to renew any business licence application is ultimately vested in the Minister in accordance with the provisions of section 8A of the Business Licence Act (Cap 173) as amended. A practice exists whereby sometimes the Minister signs the Business Licence Application and then informs the Business Licence Committee afterwards, only for their records and information. I have honestly followed that practice since I took office as Minister of Finance.
I do not accept that the Minister of Finance Official Seal can be taken in the context as "Personal" matter. The Minister's Seal is an official identity of the Office in which the person occupying such Office is authorised to act in that capacity as the Minister of state responsible for that particular matter.
Answer of the Ombudsman
2.2.3 No Minister is empowered to authorise anything or sign anything whatever which is forbidden by Law or Constitution.
The Minister’s seal should not be used in questionable or compromising correspondence or acts.
(2.2.4) No comment.
Answer of the Ombudsman - Gratified/Relieved
(2.2.5) No comment.
Answer of the Ombudsman - Gratified/Relieved
(2.2.6) No comment.
Answer of the Ombudsman - Gratified/Relieved
(2.2.7) I agree with the comments made here. This is the normal practice after the application has been approved.
Answer of the Ombudsman - Gratified/Relieved
(2.2.8) No comment.
Answer of the Ombudsman - Gratified/Relieved
(2.2.9) Appeal of the Shareholders to the Minister of Home Affairs.
I agree with the content of the letter of appeal to the Municipal Council signed by Charlie Pakoa and Phillip Luankon.
Answer of the Ombudsman - Gratified/Relieved
(2.2.10) Appeal of the Minister of Finance to the Minister of Home Affairs.
My approach to the Minister was based on the fact that I honestly believed he has that discretionary power under section 18 (5) of the Liquor Licensing Act (Cap 52) to prescribe special hours of opening of the premises licensed.
Answer of the Ombudsman
2.2.10 Even if it were true that The Honourable Willie Jimmy "honestly believed" it would not mitigate his culpability.
(2.2.11) I had been told that the petitions were initiated by the Ombudsman herself. I had never seen a copy of the signed petitions by some 23 people who may be going against the operation of the Bottle Shop.
Answer of the Ombudsman
2.2.11 What The Honourable Willie Jimmy had been "told" or what he may not have had disclosed regarding identity of complainants does not constitute any defence of his illegal actions.
(2.2.12) No comment.
Answer of the Ombudsman - Gratified/Relieved
(2.2.13) I agree that the points raised here (No.s 1-11) were what I viewed to be in fairness to my shop, if the Ombudsman had to be fair and be seen to be impartial in carrying out her duties. I request the Ombudsman to justify what cause of action had been taken to address the concerns raised in my letter.
Answer of the Ombudsman
2.2.13 Gratifying, but further justification by Ombudsman neither necessary nor justifiable.
(2.2.14) No other 24 Hour Licensee.
No official licences were approved or issued for a 24 hour liquor shop besides the Nambawan Bottle Shop, but we have what we call the "Black Market". There are shops that were selling beers, wines and spirits on a 24 hour basis without a licence before the Nambawan Bottle Shop came into operation and nothing was done about it. No one cared to correct the procedures according to law, except to carry out an enquiry into Nambawan Bottle Shop after one month of its operations.
Answer of the Ombudsman
2.2.14 This "no one" that is referred to by the former Minister, Willie Jimmy, was Minister Willie Jimmy
(2.2.15) Council of Ministers' Disapproval to Sell Alcohol outside Operating Hours.
The Attorney General may have received complaints, but again the Attorney General never directed the complaints he received to my attention for comment. I suspect he was acting in someone else's interest rather than his own. I am surprised that the Attorney General came into the scenario over the issues concerning the Nambawan Bottle Shop, while there are many other important matters to be more concerned about affecting Government administration etc. I maintain my belief that the exercise of discretionary powers by the Minister of Home Affairs under section 18 (5) of the Liquor Licensing Act was legal, despite the Council of Ministers decision.
Answer of the Ombudsman
2.2.15 This matter should be referred to the Attorney-General.
(2.2.16) No comment.
Answer of the Ombudsman - Gratified Relieved
(2.2.17) The comments in paragraph 2.1.4 above are repeated.
Answer of the Ombudsman - Gratified/Relieved
(2.2.18) No comments.
Answer of the Ombudsman - Gratified/Relieved
(2.2.19) (1) No other applications were received by the Ministry of Finance to operate a 24 hour liquor shop around town. That is the reason why no other licences were approved.
(2) A Government Minister involved in business was a practice done in the past by other former Government Ministers eleven (11) years after independence and this to me is no exception. To my honest belief, I could do the same as long as I declared my interest to the Government and to the Speaker of Parliament which I did.
Answer of the Ombudsman
2.2.19 Possibly, but this was approved and in unethical circumstances.
(2.2.20) Additional Problem.
I request that the location of the premises of the Nambawan Bottle Shop be compared to other sites on lease basis which are involved in the sale of liquor which also cause nuisance to neighbours living nearby:
(a) Seven Star Night Club;
(b) Sun Rise (Simbolo Area) Anaburu;
(c) George (Ambrym) Anaburu;
(d) Salili Store.
Consider the nature of the lease, the population, the nuisance arising from the operation of the business etc and compare to the premises of the Nambawan Bottle Shop and its location.
Answer of the Ombudsman
2.2.20 This is a matter for Constitution or Leadership Code. It was the duty of The Honourable Willie Jimmy as Minister to control them. These matters are within Police jurisdiction to act.
3. RELEVANT LAWS
The comments in paragraph 8 of the Introduction above are repeated.
Without any form of advice all I knew was to complete the Business Licence Act requirements and comply with the provisions of the Liquor Licensing Act, nothing further. I did not believe that I was abusing my powers at all when dealing with this case as I was simply performing the functions of the Minister of Finance in relation to such applications for business licences.
(3.1) LAND LEASE ACT
(3.1.1) Law and Lease.
As mentioned earlier, this particular premises was used in the past as a general retail shop before we moved into it. It was also selling beer, wines to spirits before Nambawan Bottle Shop was given the right to lease it from the owner Mr. Nguyen Ba Wing. Why was it that the Ombudsman had never investigated the nature of the lease at that time if the nature of the lease is not a commercial one?
(3.1.2) Enforcement, Forfeiture.
No comment.
Answer of the Ombudsman - Gratified/Relieved
(3.2) THE BUSINESS NAMES ACT
I agree with the comment here.
(3.2.1) The Managing Director at that time was Mr Philippe Luankon who was responsible to complete all necessary documents for the Shop in order to avoid any inconvenience that may arise after its operation.
Answer of the Ombudsman
3.2.1 The responsibility was The Honourable Willie Jimmy.
(3.2.2) If it is in the opinion of the Ombudsman that Nambawan Bottle Shop had committed an offence by not registering its business name with the Commissioner nine (9) months after its operation, the Ombudsman and the Commissioner should have referred their concerns to the Public Prosecutor to take appropriate action against the Nambawan Bottle Shop. However, whatever the penalty is as of today, the Nambawan Bottle Shop is prepared to cooperate in resolving this problem in accordance with the law. My experience in the area is that the Nambawan Bottle Shop is only a minor thing when compared to many big firms operating on offshore basis and even some local companies have huge amounts outstanding in terms of registration fees, annual fees etc.
Nobody was ever concerned about this in the past until when the Nambawan Bottle Shop came into operation, every body wanted to make sure its establishment and operations were legal.
In pigin (Bislama), forming a company covers whether it is a sole trader, a partnership or a limited company and it all comes under one roof and referred to as a company.
Answer of the Ombudsman
3.2.2 The responsibility was The Honourable Willie Jimmy
(3.3) THE BUSINESS LICENCE ACT (CAP 173)
(3.3.1) Powers Of The Minister.
The comments in paragraph 2.2.2 and 2.2.3 above are repeated.
Answer of the Ombudsman - Irrelevant
(3.3.2) General And Standard Procedures For A Business Licence Application.
I agree with the comments raised here.
Answer of the Ombudsman - Irrelevant
(3.3.3) Normal Procedure For The Payment Of The Liquor Licence Fee.
No comments to make.
Answer of the Ombudsman - Irrelevant
(3.3.4) Improper Procedures Followed In The Case Of Nambawan Bottle Shop
The comments in paragraph 2.2.2 and 2.2.3 above are repeated.
Being the Minister of Finance with a busy schedule everyday to attend to more important state matters I am not aware that the procedures adopted by the Nambawan Bottle Shop were improper. The change of location and names respectively are normal practices that happen to almost any business if the management or the shareholders decide to move to a more convenient location to attract business.
Answer of the Ombudsman - Irrelevant
(3.3.5) Alleged Breaches Of The Business Licence Act.
(a) Charlie Pakoa and Willie Jimmy were the shareholders. We believed that to uphold the integrity of the public office we were occupying, we should not be seen to be directly involved in the business, that is why we recruited Philippe Luankon hoping to give him some shares in the company later. Phillippe Luankon knew about our status in the company. He therefore should have included our names in the Business Licence Application form when lodging the application, as the Managing Director.
(b) No Registration Of Business Name in Infraction Of Business Licence Act.
The comments in paragraph 3.2.1 above are repeated.
(c) Cancellation Of Licence.
The comments in paragraph 2.2.2 and 2.2.3 above are repeated.
No cancellation was made because I was not informed nor advised of any non compliance with the legal procedures at the beginning.
Answer of the Ombudsman - Irrelevant
(3.3.6) Summary Of Breaches And Liabilities Of The Law And Procedures Under The Business Licence Act.
The comments in paragraph 8 of the Introduction and paragraph 3 above are repeated.
The allegations and assertions raised here if substantiated were never intentionally done but occurred as a result of lack of proper advice as we believed what we were doing was right.
Answer of the Ombudsman - Irrelevant
(3.4) THE PHYSICAL PLANNING ACT
(3.4.1) The comments in paragraph 8 of the Introduction and paragraph 3 above are repeated.
The Managing Director Mr Phillippe Luankon, I believe was absolutely ignorant and unaware of the provisions of this Act in relation to the operation of a Liquor Shop. We believed in the discretionary power of the Minister under section 18 (5) of the Liquor Licensing Act.
Answer of the Ombudsman - Irrelevant
(3.4.2) Appeal Procedure Under The Physical Planning Act.
1. Standard Procedure.
No comment.
2. Powers of the Minister as per the Physical Planning Act (Section 9 (1,2,3).
The comments in paragraph 8 of the Introduction and paragraph 3 above are repeated.
Answer of the Ombudsman - Irrelevant
(3.4.3) Procedure Applied In The Appeals Of Nambawan Bottle Shop Both Under The Liquor Licensing Act And The Physical Planning Act.
The comments in paragraph 8 of the Introduction above are repeated.
The investigation and inquiry conducted into the Nambawan Bottle Shop regarding the legality of procedures employed in the issuance of the liquor licence was the first of its kind in the history of Vanuatu. We believed that we were not acting contrary to any provisions of the law that are required to be complied forthwith in order to operate the Liquor Shop. All contrary actions raised on matters related to the procedures and legality of the issuance of licences to the Nambawan Bottle Shop were done in good faith as we honestly believed that we were not doing anything wrong except complying with the law.
Answer of the Ombudsman - Irrelevant
(3.4.4) Summary of Breaches under the Physical Planning Act.
We believe and maintain that the Minister's discretionary power is the supreme decision which was made in good faith in the first instance. His action should not be regarded as misconduct under the Leadership Code as pointed out in paragraph 4.3.2 of this Report.
Answer of the Ombudsman - Irrelevant
(3.5) THE LIQUOR LICENSING ACT
(3.5.1) No comment.
Answer of the Ombudsman - Irrelevant
(3.5.2) Powers of the Minister and Municipality.
No comment.
Answer of the Ombudsman - Irrelevant
(3.5.3) Ministerial Discretion.
We believe and take it in good faith that the Minister's Discretionary power is unlimited.
Answer of the Ombudsman - Irrelevant
(3.5.4) In this case, there were different breaches of the law and irregularities with the Ministry of Finance and the Customs Department.
(a) Irregular payment of fee for the Liquor Licence.
My signature was only affixed to the Business Licence Application form not in the Liquor Licence Application form.
There were two separate fees to be paid to the Department of Rates and Taxes.
(i) The Business Licence Application fee for D (3) C; and
(ii) The Liquor Licence Application after it has been approved by the Municipality or the Minister.
(b) No issuance of the Liquor Licence.
The shop was opened without my consent as I was on a Government mission overseas in Malta when I came back and found out that the shop was operating.
(c) The Act forbids to sell or supply liquor to any person who is in a state of manifest intoxication (section 16 (1)).
If there were complaints raised it should have been brought to the attention of the police in the first instance and then to us. I had not been aware of any complaints brought to my attention by any member of the public.
(3.6) CONSTITUTION
(3.6.1) Fundamental Rights.
My Ministry had never received any other liquor licence application or Business Licence Application to sell and operate a Liquor Shop on a 24 hour basis as the Nambawan Bottle Shop. If we had received an application and refused to approve it, then one would assume that we were acting unfairly to others.
Answer of the Ombudsman - Irrelevant
(3.6.2) Leadership Code.
Section 14 (4) of the Ombudsman Act is irrelevant here because the inquiry had already been conducted before the Act was approved by parliament in September of 1995. Article 66 of the Constitution is clear and I don't think that when Ministers are exercising their powers in good faith are in anyway placing their position to be called into question in accordance with the spirit pointed out here.
Commercial Activity of Leaders.
Public Service Rules.
First I wish to say that I am not a civil servant and I cannot be subject to the provision of the Public Service Staff Manual Chapter 9 (2.)(ii)) as an officer in the Public Service. My term of reference and employment is covered in my letter of appointment signed by the Prime Minister.
However, while my position may be categorised as a Public Officer may I point out that this is not the first time a person being a Minister owned a business in Vanuatu. There has been a practice in the past where all former Government officers including Ministers and Prime Minister did own a business and no-one was bothered to investigate their interest except Willie Jimmy. This is a clear sign of the Ombudsman's action not being impartial.
Sleeping Partner.
The comments in paragraph 2.2.19 (2) and 3.2.1 above are repeated.
I did write to Prime Minister and the Speaker to inform them about my interest in the bottle shop and said that I would be a Sleeping Partner in the business. However, one must understand that a business needs a capital to start off. I deposited one million vatu on fixed deposit with NBV as a security and requested a loan for an overdraft facility with the bank. My signatory to the cheque does not mean that I am in the shop everyday to keep an eye on what’s going on. It was merely to make sure that cheques are made out to pay for proper invoices on all accounts involving the Nambawan Bottle Shop, none other, and I did not sign cheques everyday as stated here. I agreed that on January 1994, I removed Philippe Luankon because of his incapability to keep the overdraft to the agreed limit which was suppose to be at five million vatu (5,000,000 Vt), he went up to eight million vatu (8,000,000 Vt). In February, I decided to terminate his appointment and replaced him with Alick Kokona. My dealing with the Municipality and the Home Affairs Ministry only came about when our application was refused and I was involved on appeal basis. All the paper work involving licences were done by Phillippe Luankon himself.
Answer of the Ombudsman
3.6.2 "Good faith" is not an accurate description of the role of The Honourable Willie Jimmy.
It is of no consequence whether the activities of Honourable Willy Jimmy were a first time, or not. Incidentally if the Ombudsman had done what he suggests in acting against others previously, he would have been raising the same argument that it was illegal for her to act before.
It is not agreed that on the evidence The Honourable Willie Jimmy was a sleeping partner.
Summary of the Ombudsman
It will serve no useful purpose to respond to the ensuing pages of repetition and irrelevances.
The Ombudsman is reminded by Honourable Willie Jimmy’s many pages of a wise comment from the Book of Proverbs Chapter 10 Verse 19: -
"In the multitude of words there wanteth not sin; but he that refraineth his lips is wise"
The legal authorities will rule on The Honourable Willie Jimmy activities and the Ombudsman in due course.
4. PRELIMINARY FINDINGS OF ALLEGED MISCONDUCT
(4.1) ALLEGED VIOLATIONS OF LAWS
(4.1.1) Land Lease Act (Cap 163).
The comments in paragraph 8 of the Introduction and paragraph 3.l.1 above are repeated.
I believe this is a matter for the Lessor, the Minister of Natural Resource to take appropriate action if there was an alleged breach of the Act.
(4.1.2) Liquor Licensing Act (Cap 52).
The comments in paragraph 2.1.4 above are repeated.
As mentioned earlier, we intended to sell liquor on a 24 hour basis by applying for such licence and we believed in the exercise of the Ministers discretionary powers to grant us the Licence to be valid and legal as was our interpretation .
(4.1.3) Business Names Act No. 6 of 1990.
The comments in paragraph 3.2.1 above are repeated.
All paper work including the registration of the business name was the responsibility of the first Managing Director Philippe Luankon.
(4.1.4) Business Licence Act (Cap 173).
The comments in paragraph 3.2.1 above are repeated.
(4.2) ALLEGED VIOLATIONS OF ADMINISTRATIVE RULES AND PROCEDURES
(4.2.1) Payment Of Licence Fees And Issuance Of Licences.
The comments in paragraphs 2.2.2 and 2.2.3 above are repeated.
Only the Minister of Finance is empowered under the Business Licence Act (Cap 173) to sign, refuse, not to renew or revoke any business licence application whether the application goes directly to the Minister or goes before the Business Licence committee. This is not the first case, nor the first time it happened. I have signed a lot of Business Licences for other applicants in the past following the practice that exists as mentioned in paragraph 2.2.3 above and nobody ever complained.
(4.2.2) Appeal Procedure Under The Licensing Act and the Physical Planning Act.
The comments in paragraph 2.1.4 above are repeated.
Again here, I maintain that it was the Minister who has the final say on matters to do with liquor licence application. I believed in his discretionary power to be genuine, legal and valid once approval is given on any matter by the Minister.
(4.2.3) In Action Of Officials
Finding No. 1
No comment.
Finding No. 2
No comment.
Finding No. 3
No comment.
Finding No. 4
No comment.
The Findings in numbers (1) to (4) above are entirely up to each official involved to give their own reasons and justify why they had not acted as expected to deal with this case.
(4.3) ALLEGED VIOLATIONS OF CONSTITUTIONAL PROVISIONS
(4.3.1) Fundamental Rights.
Finding No. 1. The comments in paragraphs 2.2.19 (1) and 3.6.1 above are repeated.
There was never to my knowledge any other applicant wishing to operate legally on a 24 hours basis whose application was received and was turned down.
I believe and maintain that the Minister exercised his discretionary power in good faith and it was up to his decision to grant licences to any person or business whatsoever.
(4.3.2) The Leadership Code
Minister Willie Jimmy.
Finding No. 1. The comments in paragraph 2.2.19 (2) above are repeated.
I was a businessman in the past before I joined the politics in 1983. Being a member of parliament between 1983 - 1987 I was still a businessman (a shop owner).
Between 1987 - 1991 I still did business, I owned a bus and a taxi in Port Vila, with Real Estate (5 apartments) in Tebakor area. Being a member of parliament from 1983 to 1991 and I was still doing business. I thought that starting a new business although I am a Minister, is no exception, as long a I declared my interest to the Speaker and Prime Minister which I did in October of 1994 just one month after operation. Surely this must be a good sign of not being biased and without any intention to wilfully breach Article 66 of the Constitution. If I don't sign the Business Licence, who else will be signing the licence apart from the Finance Minister?
Finding No. 2. The Business Licence Act (Cap 173) has its own penalty provisions for everybody who fail to comply with the requirements contained therein. In my view Article 66 (1) (a) cannot be applied in this context because as Minister of Finance I am the only one who can grant or revoke business licences.
Finding No. 3. The comments in paragraph 2. 1.4 above are repeated.
My approach to the Minister of Home Affairs was done on an appeal basis believing in his discretionary power. I contacted him as my Ministerial colleague for assistance in good faith believing in his discretionary powers. e.g. Minister of Home Affairs, discretionary power to grant liquor licences and special hours of opening is no difference to the Minister of Finances' discretionary power under the Business Licence Act or even under the Customs Tariff Act. I often received requests in the past from Ministers or even the Prime Minister on Ministerial letterheads and phone calls requesting duty exemption on vehicles, boats, outboat motors, petrol etc, and I approved it without question.
Finding No. 4. The comments in paragraph 2.2.3 above are repeated.
I was signing the Business Licence Application as the Minister of State responsible for Finance and the issue of business licences in the Republic of Vanuatu and not simply as Willie Jimmy. Therefore it is absolutely necessary that my Ministerial seal and stamp be fixed on to the Business Licence Application form as is the practice that exists.
Finding No. 5. The granting of Duty Exemptions was solely my discretion as the Minister responsible. I don't believe in what Philippe Luankon said in his letter to Ombudsman about the setting up of the Nambawan Bottle Shop. He was acting in revenge to my decision to terminate him because of his misconduct and incapability.
Finding No. 6. The comments in paragraphs 3.2.1 and 3.3.5 (a) above are repeated.
Finding No. 7. The comments in paragraph 3.2.1 above are repeated.
Finding No. 8. The comments in paragraphs 2.2.19(2) and 4.3.2 Finding No. 1 above are repeated.
Finding No. 9. The comments in paragraphs 2.2.2, 2.2.3, 3.3.5 (c) and 4.3.2 Finding No. l above are repeated.
Minister Charlie Nako
Finding No. 1. The comments in paragraph 2.1.4 above are repeated.
Finding No. 2. The comments in paragraphs 2.1.4 and 4.3.2, Finding No. 3 above are repeated.
Finding No. 3. No comment.
Finding No. 4. The interpretation of technical parts of an Act should be addressed by the experts to the Minister. The lack of understanding the principle meanings of the provisions of an Act should not be blamed on the Minister.
CONCLUSION
This report really addresses a lot of issues which are important to bear in mind when somebody is entreated with state responsibility in the Public Administration. One must be very cautious in decision making about state matters in the future.
In my personal opinion there are more important matters to investigate as priority than this one, for example, the Vulcan Community Development Fund. I feel that this Report is biased and partial.
Honourable Willie Jimmy, MP
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