SOMARE TRIBUNAL MIRED IN LEGAL CHALLENGE

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PNG Prime Minister cites right to defend himself

By Todagia Kelola PORT MORESBY, Papua New Guinea (PNG Post-Courier, Feb. 18, 2011) – The appointment of a Leadership Tribunal by the Chief Justice Sir Salamo Injia into Prime Minister Sir Michael Somare’s alleged misconduct in office may not be possible at this stage because of a pending Supreme Court reference.

Prime Minister’s lawyers Posman Kua Aisi (PKA) had filed this Special Supreme Court reference in 2008 basically seeking the highest court’s opinion on how their client’s case was examined, investigated and subsequently referred to the Public Prosecutor by the Ombudsman Commission.

The matter was listed for directions before the Chief Justice Sir Salamo Injia on Monday and it was adjourned to March 7.

Prime Minister’s Chief of Staff, Paul Bengo, had released a full page advertisement in the newspapers this week explaining the facts.

"It is important that the public is aware that Sir Michael as a citizen of Papua New Guinea has equal rights to defend himself, using the legal options available to him. I therefore wish to make it clear that Sir Michael has not obstructed the course of justice and all actions by his lawyer Kerenga Kua and Posman Kua Aisi Lawyers to date have been conducted within the laws of Papua New Guinea," stated Mr Bengo

Mr Bengo further pointed out that in December 2010 and January 2011, PKA lawyers wrote to the Chief Justice, copied to both the Ombudsman Commission and the Public Prosecutor, requesting the deferral of the appointment of a Tribunal.

"The reason being that where both the Supreme Court and the Tribunal convene simultaneously, there was the potential that conflicting decisions will be made by both."

The questions that the Prime Minister is referring to the Supreme Court are;

- Do the words "Ombudsman Commission" in section 19 of the OLDRL have the same meaning as in Constitution 217(1), namely, the Chief Ombudsman and two Ombudsmen?

- Was the Chief Ombudsman acting ultra vires and in excess of his jurisdiction within the meaning of section 217(6) of the Constitution when he alone purported to make a decision under section 19 of the OLDRL refusing the Applicant’s request to appoint another constitutional office-holder to carry out any examination or investigation?

- On their true construction do the words in section 19 of the ORDRL which refer to the Ombudsman Commission being "unable for any reason to conduct an examination or investigation referred to in section 17" include, or are they capable of including, circumstances in which the Ombudsman Commission is biased or there is a reasonable apprehension of bias.

- Was the decision to appoint another constitutional office-holder under section 19 of the ORDRL made ultra vires and in excess of his jurisdiction under section 217(6) of the Constitution, and therefore void and of no effect -

(i) for failure to take into account a relevant consideration, namely, the allegation of apprehended bias; or

(ii) for mistake of law as to the circumstances in which the Commission may be "unable to act"?

- Have the Applicant’s rights and protection under Constitution section 37 (protection of the law), or section 59 (natural justice) or any other constitutional provision been contravened in the circumstances referred to above.

- Are the Ombudsman Commission’s examination and investigation, and subsequent referral to the Public Prosecutor, unlawful and therefore null and void by reason of any of the matters referred to above?

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