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‘waste of time, abuse of court process’

PORT MORESBY, Papua New Guinea (PNG Post-Courier, July 6, 2011) - The Prime Minister Sir Michael Somare’s bid to stop the Ombudsman Commission from investigating and referring him to the Leadership Tribunal was waste of the court’s time and an abuse of the process of both the National and Supreme Courts.

This is the verdict handed down by the Supreme Court last Friday when the three-man bench comprising of Deputy Chief Judge Justice Gibbs Salika, Justice Nicholas Kirriwom and Justice Ambeng Kandakasi, handed down its decision of proceedings launched by Sir Michael from 2008 up to this year.

The Supreme Court was highly critical of all the legal challenges mounted by Sir Michael through his lawyers, declaring that the proceedings "were all improper and were needless attempts at preventing a necessary and proper legal process from taking its proper course".

The court challenges Sir Michael mounted through his lawyers included the interim injunctive orders sought by Sir Michael on May 5, 2008, as well as a summons for the Ombudsman Commission to produce documents relating to his referral, both of which were refused on June 16 and 24 ,2008. Sir Michael then filed the appeals against those decisions.

On June 26, 2008, the Ombudsman Commission referred Sir Michael to the Public Prosecutor and on the same day Sir Michael filed for a stay order of the decision by the National Court, pending the hearing into his appeal against the refusal of his application for an interim injunction.

On June 27 and July 4, 2008, Sir Michael withdrew his appeals. Also on July 4, Sir Michael filed an application in the National Court seeking leave to amend his initial case to join the Public Prosecutor as a party and then restrain him from requesting the Chief Justice to appoint a Leadership Tribunal to hear charges of leadership breaches. On July 12, the court granted only the application to do the changes.

Then on October 3, Sir Michael filed a new proceeding, raising the same issues as in the previous proceedings. In light of those proceedings, the National Court on October 27, stayed with the consent of the parties. Almost two months later, on December 13, the then acting Public Prosecutor requested the Chief Justice to appoint a tribunal. Around the same time, the Supreme Court stayed Sir Michael’s fresh proceedings pending a decision in another Supreme Court reference by Ken Mondiai and others.

Eventually on December 17, the Supreme Court handed down the decision, saying an individual is not entitled to bring a Supreme Court reference but could file an originating process. The Chief Justice appointed the Leadership Tribunal. Soon after the appointment of the tribunal, on March 5, 2011, Sir Michael filed another proceeding, two days later on March 7, he withdrew the first matter. On March 11, the Ombudsman Commission filed an application to dismiss the proceedings for abuse of process of the court.

The Supreme Court declared that it was proper and appropriate for Sir Michael to raise all questions concerning the Ombudsman investigations into possible breaches of the Leadership Code, through to the appointment of the Leadership Tribunal and only at the tribunal.

"If he did not succeed at the Leadership Tribunal level it was open for him to challenge that through a judicial review in the National Court and if still not satisfied, to the Supreme Court on appeal. That was the appropriate and correct forum and processes available to him. The Leadership Tribunal has completed its task and since disbanded with no formal reviews filed and sought against it. Outside a proper judicial review application against the tribunal’s decision, Sir Michael is thus at no liberty to challenge effectively what was concluded with the leadership tribunal," the court declared. All the other steps Sir Michael took through his lawyers and or legal counsel were all improper and were needless attempts at preventing a necessary and proper legal process from taking its proper course. The process albeit with much delay, has now been concluded with no direct challenge against its conclusion by Sir Michael. These proceedings therefore have no utility and hence been a total waste of the court’s time. Besides, we find that these proceedings are a culmination of history of unnecessary, improper and inappropriate steps being taken by Sir Michael through his lawyers without having any factual and or legal foundation and merit."

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