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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 180 OF 1997
IER">IN THE MATTER OF:
An application Under s 17(7) of the Ombudsman Act
requiring attendance of witness summonsed by Ombudsman
to attend Court to furnish information.BETWEEN:
THE OMBUDSMAN
ApplicantAND:
ETIENNE KOMBE
Respondent
Coram: Mr Justice Oliver A. SAKSAK.
Counsel: Mrs Heather Lini Leo for the Ombudsman.
Mr Etienne Kombe in person unrepresented.LIGN=ER">REASONEASONS FOR ORDERS
The Ombudsmbudsman made application to this Court on 10th March 1998 under the provi of section 17(7) of the Ombudsman Act No. 14 of 1995 to require the attendance of thef the Respondent to attend Court and furnish information relating to Santo International Airport Project. The Ombudsman sought the following Orders:-
(1) That the Respondent be summonsed to attend the Supreme Court to furnish, in relation to an enquiry by the Ombudsman Office about various Council of Ministers decisions regarding the feasibility study of Santo International Airport and potential Leadership code breaches, the following documents:-
(a) Copy of Council of Ministers Decision (Decision No. not known) and all related documents on or about October 1996.
(b) Copy of Council of Ministers Decision No. 187 dated on or about 20th October 1997 and all related documents.
(c) Copy of Council of Ministers Decision No. 203 dated on or about 20th October 1997 and all related documents.
(d) Copy of Council of Ministers Decision No. 233 dated on or about 14th November 1997 and all related documents.
(2) That the Respondent be fined pursuant to sections 17(8) and 45 of the Ombudsman Act. (the Act).
(3) That the costs and disbursements of and incidental to the application be paid by the Respondent to the Applicant.
The Order sought in paragraph 1 was granted.
It is clear from the affidavit evidence of the Ombudsman herself sworn 17th December 1997 that an enquiry has begun and she needs information to complete the enquiry. The Ombudsman is empowered under Article 62 of the Constitution and sections 16 and 17 of the Act to do that. Further, the Ombudsman is empowered by Article 62(3) of the Constitution to request any Minister, public servant, administrator, authority concerned or any person likely to assist him to furnish him with information and documents needed for his enquiry.
Mr Kombe argued that the documents requested by the Ombudsman were classified materials within the meaning of the term in section 1 of the Official Secrets Act CAP. 111. Firstly I saw no evidence that Mr Kombe has subscribed to the Declaration as required by section 3(1) of the Official Secrets Act. Secondly I saw no evidence that the documents requested by the Ombudsman are classified materials. The onus of proof was on the Respondent and he failed to discharge that duty. Therefore he could not claim that he was privileged by the provisions of the Official Secrets Act.
Mr Kombe asked the Court specifically to rule in view of the Ombudsman Act as to which Act prevails. In her submissions in response, Mrs Leo submitted that the Ombudsman Act is derived from the Constitution. She submitted that section 17(7) of the Act is a supplement of Article 62(2) of the Constitution. Further, as by Article 2 the Constitution is the Supreme Law in Vanuatu and having established the Ombudsman and her powers of enquiry and reporting, the Ombudsman Act prevails over the Official Secrets Act. This Court agrees and accepts that submissions and therefore hereby rules that the Ombudsman Act overrides the Official Secrets Act.
It is becoming all too common that persons in high positions in government harbour fear that they would be breaching confidentiality if they complied with the Ombudsman's requests to furnish information. It bears to mention that the Ombudsman and the officers of the office are also subject to the provisions of the Official Secrets Act. Section 18 of the Act is clear on that point. Further section 19(3) and (4) of the Act provide for limited disclosure of information during the course of an enquiry. Section 20 of the Act provides for a heavy fine or imprisonment of secrecy is not preserved. These provisions should afford comfort to those with tendencies to harbour fears of breaching confidentiality that whatever information they provide to the Ombudsman, they do so under confidence so that if somehow or the other, that confidence is breached, it is the Ombudsman who would stand to answer for that breach and not the provider of such information.
The Court considered and applied the decision of the Court of Appeal in Leymang -v- Ombudsman, Appeal Case No. 3 of 1997 as regards confidentiality. As regards the imposition of a fine, Counsel for the Ombudsman argued that because the Respondent had failed to respond to the summon of the Ombudsman, that he should be fined pursuant to section 17(8) read in conjunction with section 45 of the Act.
The Respondent told the Court that at the time when he was first summonsed to appear before the Ombudsman he could not do so because the Council of Ministers to which the Respondent is Secretary was sitting and considering certain Bills in relation to the Comprehensive Reform Program. On the second occasion the Respondent told the Court that he merely forgot about the appointment. The Court accepted these as sufficient excuses which did not amount to blatant refusal or neglect on the Respondent's part and therefore in my Judgment, there was no need to impose a penalty.
Finally as regards the application for costs the Court ordered that the Respondent pays to the Applicant a total of VT26.000.
The Respondent gave an undertaking that he would pay this sum in three instalments. No period of payment was given because there was uncertainty as to his employment status. But the Court made it clear to the Respondent that as long as the sum remained unpaid, it amounted to a civil debt for which the Ombudsman was entitled to sue for recovery.
This Order was necessary because the omission of the Respondent resulted in the case being filed, affidavits prepared and filed and the hearing of the application. All these involved monetary expenses which could have easily been avoided. It was therefore just and proper in the Court's view that the Respondent should pay the costs and it so ordered.
On one final point argued by the Respondent who told the Court that he was terminated as Secretary to the Council of Ministers as of 5th March 1998. He submitted therefore that it was not possible for him to have access to the documents requested.
Again the Court could not accept that submission because there was no evidence to show that this was in fact the case. He referred to a letter and yet was not able to produce the letter as was onerous on him to do.
PUBLISHED at Port Vila, this 13th day of March 1998.
BY THE COURT
Oliver A. SAKSAK
Judge of the Supreme Court.
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