REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

false annual return declaration made by
(former) MP
barak sope maautamate
on 1 March 2001

6th June 2003

1155/2003/11

-------------------------------------------

PUBLIC REPORT
ON THE
FALSE DECLARATION
OF ANNUAL RETURN
BY MP (FORMER) BARAK SOPE MAAUTAMATE
ON 1 MARCH 2001

SUMMARY

The Ombudsman is issuing this Public Report to illustrate how Honourable Barak Sope Maautamate, as leader at that particular time, filed his annual return in 2001 knowing that he had failed to declare a substantial amount of money that was received by his spouse.

In 2001, when Honourable Maautamate was Prime Minister, Global Trade and Development Project paid an amount of US $ 20,000.00 into Mrs Mildred Sope’s account. Global Trade is a company that belongs to Mr Amahandra Nath Gosh, former Consul for Vanuatu in Thailand. When making his annual return declaration in 2001, Honourable Maautamate failed to declare this substantial amount of money that was received by his spouse. 

Section 31 (3)(b) of the Leadership Code Act says that a leader must file annual returns with the details of the assets and liabilities of the leader’s spouse.

The Ombudsman finds that, the transaction that took place between Mrs Sope and Mr Ghosh occurred on 16 February 2001. The dateline for leaders to submit their annual returns to the Clerk of Parliament is by 1 March. However, Honourable Maautamate only submittied his 2001 annual returns to the Clerk of Parliament on 13 July 2001 

The Ombudsman finds that Honourable Maautamate may have breached the Leadership Code because he failed to declare in his annual return that his wife received US $ 20,000.00 from Global Trade Ltd. 

The Ombudsman therefore recommends that the Public Prosecutor consider this report within 14 days of receiving it in accordance with section 35 of the Code.

-------------------------------------------

TABLE OF CONTENTS

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

1.	JURISDICTION

1.1	The Constitution, the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes Members of Parliament like Honourable Barak Sope Maautamate (hereinafter referred to as Honourable Maautamate) whose conduct has been investigated in this enquiry.

2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1	The purpose of this report is to show how a former leader may have breached the Leadership Code Act for filing a report that he knew was false in material.

2.2	The scope of this investigation is to establish facts about Honourable Maautamate not submitting the details about the amount of money that was paid by Mr Gosh to Mrs Mildred Sope’s bank account in the ANZ Bank. 

2.3	This Office collected information and documents by informal request, summons, letters, interviews and research.

3.	RELEVANT LAWS, REGULATIONS AND RULES

3.1	CONSTITUTION OF THE REPUBLIC OF VANUATU

	Article 66 of the Constitution states how leaders should conduct themselves. Article 67 provides a definition of who our leaders are under this Chapter. Please refer to Appendix ‘A’ for the full text of these sections.

(4)	LEADERSHIP CODE ACT NO.2 OF 1998

Section 7 (2) of the Leadership Code provides a definition of the term ‘conflict of interest’ which may apply in this case. 

Section 13 of the Code states the duties of all leaders. 

Section 19 of the Code requires all leaders to comply with Part 2, 3, or 4 or they will be guilty of a breach of the Code and liable to punishment under Part 6.

Section 24 of the Code states that a leader who has a conflict of interest in relation to a matter must not act in relation to that matter.

Section 28 of the Code also states that a leader who fails to abide by an enactment that imposes on the leader a duty, obligation, or responsibility is in breach of the Code.

Section 31 of the Code states that all leaders must complete an annual return for the preceding year and forward it to the Clerk of Parliament by 1 March each year or within 2 months of becoming a leader. The annual return shall set out details of the leader’s assets and liabilities in accordance with the form in the Schedule of the Code.

Section 32 of the Leadership Code (Amendment) Act No.7 of 1999 states that the Clerk of Parliament shall keep the annual return confidential unless there is an investigation under Part 5 of the Act or an investigation authorised by or under any other Act or law. 

Section 33 states that any leader who fails to file a return is guilty of a breach of the Code.

The full text of the above states sections can be viewed in Appendix ‘B’.

4.	OUTLINE OF EVENTS

4.1	On 26 April 2001, the Ombudsman was informed that sometimes in February 2001, Mrs Mildred Sope, Honourable Barak Sope Maautamate’s wife, went to the ANZ bank in Port Vila and paid off part of their outstanding loan. She paid VT 14 million in cash to ANZ. Prior to this, Honourable Maautamate was alleged to have returned from an official visit to Laos with US $ 200,000.00.

4.2	On 22 May 2001, the Ombudsman received documents to prove that an amount of US $ 20,000.00 was paid into an account held at a certain bank in Port Vila in the name of Mrs Mildred Sope. This payment was made by Global Trade and Project Development, a company belonging to Mr Amahandra Nath Gosh, the former Consul General for Vanuatu in Thailand.

4.3	On 14 August 2001, the Ombudsman issued a letter of enquiry to Honourable Maautamate. In this letter, the Ombudsman requested Honourable Maautamate to provide the following information:

(i)	to confirm that they received an amount of US $ 20,000.00 from the Global Trade and Project Development;
(ii)	was the money accepted in his capacity as the Prime Minister or was it for his private use;
(iii)	if the money was accepted as public money, was it later deposited into a government account in accordance with the Financial Regulations of this country? If the answer to this was yes, then it was requested that relevant documents be provided as proof.
(iv)	If the money was accepted for private use, is he aware that he may be in breach of the Leadership Code as stipulated by the Constitution?
(v)	To provide any other information or documents relevant to this matter.

4.4	On 5 September 2001, a reminder letter was issued by the Ombudsman to Honourable Maautamate as he had not responded to the letter of 14 August 2001. Honourable Maautamate was given until 21 September 2001 to respond.

4.5	On 19 September 2001, the Ombudsman received a response from Honourable Maautamate. In his response, Honourable Maautamate stated that during his term as Prime Minister, Global Trade and Project Development had made several payments to the Government of Vanuatu. All payments were made by cheques to the Government of Vanuatu and were made through the Bank of Hawaii. 

All cheques paid to the Prime Minister’s Office were then handed to the Ministry of Finance and were later deposited into a Government account in the Reserve Bank of Vanuatu. According to the Public Finance Act, signatories to this account were made by the Director of Finance and others who had the authority to do so. Honourable Maautamate advised that he did not have any records or copies of relevant documents relating to the cheques as he only accepted the funds on behalf of the Government.

Honourable Maautamate further stated that he had never received any money from the Global Trade and Project Development for his private use.

4.6	On 27 September 2001, the Ombudsman issued another letter to Honourable Maautamate. In that letter, the Ombudsman advised Honourable Maautamate that he had received confirmation from a certain bank in Port Vila that Global Trade and Project Development had made a payment of US $ 20,000.00 into an account that is held by his spouse, Mrs Mildred Sope. This deposit was made at the time when Honourable Maautamate was Prime Minister.

The Ombudsman requested Honourable Maautamate to explain why this amount was deposited into his spouse’s account given his earlier explanation that all cheques were paid to the Government of Vanuatu. Honourable Maautamate was also requested to provide evidence that this money was forwarded to the Ministry of Finance. Honourable Maautamate was given until 15 October 2001 to respond.

4.7	On 17 October 2001, the Ombudsman issued a reminder letter to Honourable Maautamate to respond to the letter of 27 September 2001 as he had not responded to the letter. Honourable Maautamate was given until 31 October 2001 to respond.

4.8	On 15 November 2001, the Ombudsman issued a letter to Mr Lino Sacsac, Clerk of Parliament, to provide him with the Annual Return declaration that was made by Honourable Maautamate on 1 March 2001. This request was made in accordance with section 32, sub-section 2 (a) of the Leadership Code (Amendment) Act No 7 of 1999 (Please refer to Appendix ‘B’).

4.9	On 22 November 2001, the Ombudsman received a response from Hon Maautamate. He apologized for his late response and proceeded to state that his wife has confirmed that by verbal agreement, US $ 20,000.00 was deposited into the ANZ loan account by Global Trade and Project Development. This deposit was for 25% ownership of the Talimoru Hotel by Global Trade and Project Development.

The funds were non-refundable, however since the termination of Mr Amahandra Gosh as Consul General of Vanuatu in Thailand and Natapei’s Government’s opposition for Global Trade and Project Development to invest in Vanuatu, the purchase of Talimoru shares has been abandoned. Hon Maautamate further stated that ANZ bank should be able to provide more information on the matter.

4.10	On 7 January 2002, the Ombudsman issued a reminder letter to Mr Sacsac to furnish him with Honourable Maautamate’s annual return declaration for 1 March 2001.

4.11	From 7 January 2002 to March 2003, there was some confusion on the part of the Clerk of Parliament as to which annual return declaration the Ombudsman had requested. The Clerk forwarded the annual return declaration made by Honourable Maautamate on 1 March 2000 and then 1 March 2002 respectively.

4.12	On 31 March 2003, the Ombudsman received from the Clerk of Parliament, Honourable Maautamate’s annual return declaration for 1 March 2001.

4.13	In his annual return declaration, Honourable Maautamate failed to declare that his spouse had received an amount of US $ 20,000.00 from the Global Trade and Project Development through her account at ANZ bank.

5.	RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1	Prior to issuing this public report, a Working Paper was issued on 30 April 2003 to all parties implicated in this enquiry. Below are the responses that were received as a result of this Working Paper.

5.2	On 8 May 2003, a response was received from the Managing Director of ANZ, Mr Malcolm Tilbrook. In his response, Mr Tilbrook stated that ANZ has no knowledge or record of the cash payment that the Ombudsman referred to in section 4.1 of this report. He does not believe that information on this payment came from ANZ and there s no record of outstanding loans being reduced by any cash payment.

Mr Tilbrook also stated that ANZ was not aware that Global Trade and Project Development is a company associated with Mr Ghosh.

The Ombudsman would like to state here that section 4.1 of this report outlines the allegation that was received by the Ombudsman which initiated this investigation. It does not necessarily imply that this information came from ANZ.

5.3	On 16 May 2003, the Ombudsman received a response from Mr John Caldwell Malcolm from Geoffrey Gee & Partners who acts for Mr Sope and was instructed to respond on his behalf. In the response, Mr Malcolm stated the following points:

•	his client is unsure of the date he filed his 2001 return. His belief is that, it was filed at or about the same time as this transaction was made between Mrs Mildred Sope and Mr Ghosh. It was written he believes prior to the transaction.

•	Mr Sope was not part of nor knowledgeable about the transaction at the time. Subsequently it became irrelevant.

•	Given the alleged time frame (26th April 2001 – 1st March 2001 a total of 4 days) with respect it is not open to declare the 1st March 2001 was "knowingly false" and we have seen not a shred of evidence to support such assertion.

•	it follows the recommendation cannot be supported.

•	Pursuant to s.30 you are invited to issue a report suggesting insufficient evidence. In the event you wish to publish regardless of this response.

	Due to the above, the Ombudsman would like to provide the following comments. The transaction that took place between Mrs Sope and Mr Ghosh occurred on 16 February 2001. Section 31 (2) (b) of the Leadership Code Act states that all leaders must file their annual return to the Clerk of Parliament by 1 March in each year. Mr Sope was therefore required to submit his annual return to the Clerk of Parliament by 1 March 2001.

	Section 31 (3) (b) of the Leadership Code further states that the annual return must set out details, listed in subsection (4), of the assets and liabilities of the leader’s spouse and children where feasible. In 2001, the Clerk of Parliament received Mr Sope’s annual return on 13 July 2001. Even though Mr Sope was required by law to declare the assets and liabilities of his spouse, Mr Sope failed to declare this substantial amount of money that was received by his wife from Global Trade and Development Project. The Ombudsman maintains his stand that had Mr Sope continued to be the Prime Minsiter, his family would benefit immensely from Mr Ghosh which is contrary to section 24 of the Leadership Code Act (please refer to Appendix ‘B’ for the full text of this section).

5.4	The Ombudsman did not receive any response from the Clerk of Parliament and the Public Prosecutor to whom the Working Paper was also sent to.

6.	FINDINGS

Finding 1:	HONOURABLE BARAK SOPE MAAUTAMATE MAY HAVE BREACHED THE LEADERSHIP CODE ACT

6.1	The Ombudsman found that when filing his annual return in 2001, Honourable Maautamate failed to state in his return that Global Trade and Project Development had deposited an amount of US $ 20,000.00 into his spouse’s account. This is a substantial amount of money and even though it was a private agreement between his spouse and Global Trade and Project Development, it may have put Honourable Maautamate in a position of conflict of interest in his official dealings as the Prime Minister. Had Honourable Maautamate continued to be the Prime Minister, his family would have continued to benefit from this company as well as the Government. This is contrary to section 24 of the Leadership Code (please refer to Appendix ‘B’ for the full text of this section)

	Due to the above, the Ombudsman finds that Honourable Maautamate may have breached the Leadership Code especially Section 33 (b), which states that a leader who files an annual return knowing that it is false in a material particular is guilty of a breach of the Code.

7.	RECOMMENDATION

	Based on the above finding, the Ombudsman makes the following recommendation:

7.1	Recommendation 1:	The Public Prosecutor should carefully consider this report and decide whether there are sufficient grounds to lay charges against Honourable Maautamate.

Dated the 6th day of June 2003

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8.	INDEX OF APPENDICES

A	Constitution of the Republic of Vanuatu

B	Leadership Code Act No. 2 of 1998 and Leadership Code (Amendment) Act No.7 of 1999.

Appendix ‘A’

	Constitution of the Republic of Vanuatu

CHAPTER 10

LEADERSHIP CODE

	CONDUCT OF LEADERS

66.(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;

(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 the Republic of Vanuatu.

 (2)	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 subarticle (1).

	DEFINITION OF A LEADER

67.	For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

Appendix ‘B’

	Leadership Code Act No. 2 of 1998

CONFLICT OF INTEREST

7. (2)	A leader has a conflict of interest in a matter if the leader, or a member of the leader’s close family, could benefit directly or indirectly from a decision on the matter, except as a member of a community or group.

PART 2 – DUTIES OF LEADERS

DUTIES OF LEADERS

6	(1) A leader must:

(a)	comply with and observe the law;
(b)	comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution;
(c)	comply with and observe the duties, obligations and responsibilities established by this Code or any other enactment that affects the leader; and
(d)	not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.

BREACH OF LEADERSHIP CODE

19. A person who does not comply with Part 2, 3 or 4 is guilty of a breach of this Code and is liable to punishment in accordance with Part 6.

CONFLICT OF INTEREST

24.	A leader who has a conflict of interest in relation to a matter must not act in relation to the matter, or arrange for someone else to act in relation to the matter, in such a way that the leader or a member of his or her close family benefits from the action.

OBEYING THE LAW

28.	A leader acting in his or her capacity as a leader who fails to abide by an enactment that imposes on the leader a duty, obligation, or responsibility is in breach of this Code.

PART 4 – ANNUAL RETURNS

ANNUAL RETURNS

31.	(1) Every leader must complete an annual return for the preceding year setting out details of the leader’s assets and liabilities in accordance with the form in the Schedule.

(2)	The annual return must be given to the clerk of Parliament:

(a)	within 2 months of becoming a leader; and
(b)	by 1 March in each year.

	(3)	The annual return must set out details, listed in subsection (4), of the assets and liabilities of:

(a)	the leader; and
(b)	the leader’s spouse and children where feasible;
(c)	any trust of which the leader or the leader's spouse or children are beneficiary where feasible.

(4) The details to be set out in the annual return are:

(a)	all land and other property (except one family home);
(b)	all vehicles (except one family vehicle);
(c)	all shares in public or private companies;
(d)	all income;
(e)	all liabilities;
(f)	directorships in corporations;
(g)	all directorships or other office held in unincorporated bodies;
(h)	any assets acquired or disposed of during the period covered by the return;
(i)	any liabilities acquired or discharged during the period covered by the return.

(5)	The details must include assets within and outside Vanuatu.

(6)	The leader is not required to include:

(a)	any liabilities in respect of the family home; or
(b)	the personal effects of the leader and his or her spouse and children.

Leadership Code (Amendment) Act No.7 of 1999

REPEAL OF SECTION 32 AND SUBSTITUTION OF NEW SECTION

Section 32 of the Principal Act is repealed and the following section substituted:

"ANNUAL RETURNS CONFIDENTIAL EXCEPT FOR INVESTIGATIONS AND PROSECUTIONS"

32.	(1) Subject to subsection (2), the Clerk must keep confidential all annual returns given to the Clerk by leaders.

(2)	The Clerk must not make a part of an annual return, or the whole of an annual return available to another person unless the Clerk is satisfied that the part or annual return is necessary for:

(a)	an investigation under Part 5 of this Act, or an investigation authorised by or under any other Act or law; or
(b)	a prosecution under Part 5 of this Act, or a prosecution authorised by or under any other Act or law.

(3)	The Clerk must publish in the Gazette on or before 14 March in each year a list of the leaders who have given or failed to give the Clerk an annual return. The list must set out the leader’s name and the position the leader holds.

(4)	This section applies to an annual return required to be given to the Clerk on or after the day on which this section commences.

(Leadership Code Act No.2 of 1998)

FAILURE TO FILE ANNUAL RETURN

33. A leader who:

(a) 	does not file an annual return as required by section 31, and after having been warned by the Clerk in writing of his failure to do so, fails to file the return within a further 14 days; or
(b) 	 files a return knowing that it is false in a material particular;

is guilty of a breach of this Code.