PNG Court Finds Referral Of Prime Minister To Leadership Tribunal Unconstitutional

Public Prosecutor referrall of O'Neill over UBS loan was improper

PORT MORESBY, Papua New Guinea (PNG Post-Courier, Sept. 5, 2016) – Prime Minister Peter O’Neill’s referral to a Leadership Tribunal by the Public Prosecutor on his involvement in the controversial UBS loan is unconstitutional.

That’s the interpretation of a five-man Supreme Court bench, following three separate references put before it for their clarification.

The references were filed by the Attorney- General Ano Pala and two national Court judges Justice Collin Makail and Justice David Cannings.

The five Supreme Court Judges comprising Deputy Chief Justice Gibbs Salika, Justices AmbengKandaksi, PanuelMogish, Stephen Kassman and Terence Higgins in a 90-page decision all unanimously agreed that the Public Prosecutor’s referral of the Prime Minister to a Leadership Tribunal and the Ombudsman Commissions directions pertaining to the UBS loan were unconstitutional.

According to the Court, each of the three references cover the same factual and legal issues.

Central to the factual circumstances was the approval by the Prime Minister and the NEC of a proposal to borrow K3 billion from the Union Bank of Switzerland (USB) on 6 March 2014.

The Loan was for the purpose of purchasing for the State a significant shareholding in Oil Search Limited, the largest resource development company in PNG.

In relation to the Ombudsman Commissions directive the Court stated that the letter containing the directions on 14 March 2014, does not identify any wrong doing on the part of the leaders referred to except that; "Legal and financial process and procedures may nothave been complied with."

"Regrettably, the Ombudsman Commission failed to identify the persons or bodies who or which were not consulted and the law or laws mandating such consultation.

It did not identify the manner in which the lack of consultation alleged gave rise or might give rise to a breach of the Leadership Code"

That according to the court was necessary for it to be clear that the Ombudsman Commission was notmerely seeking to prevent the implementation of a policy decision of government with which it disagreed, even if to the extent of fearing that it was not in the public interest.

"The failure by the Ombudsman Commission to provide reasons for its decision to issue directions as it has done deprives the leaders so directed of any opportunity to judge whether the Ombudsman Commission is exceeding its powers and, in any event, to answer the implicit allegation that there are grounds to suspect impropriety, invalidity or misconduct."

On the Prime Ministers referral by the Public Prosecutor and the subsequent setting up of a Leadership Tribunal by the Chief Justice the court stated that the allegations referred by the Public Prosecutor differed fromthose made even in the first allegation as originally referred by the Ombudsman Commission.

This was because the Public Prosecutor had to request for further evidence from the Ombudsman Commission.

Justice Higgins in his decision said "The amendment to thatallegation by referring to the purchase of Oil Search shares as the purpose of the loanadds little to the allegation though it still lacks particularity.

That fatal flaw was not remedied by the provision of any supporting material.

That view is supported by the consideration that the Public Prosecutor’s role issimply to prosecute or not the allegations referred by the Ombudsman Commission.

TheOmbudsman Commission marshals the evidence. The Public Prosecutor has noinvestigatory role.To apply those principles to the present situation, the ‘matter’ starts with thereferral by the Ombudsman Commission to the Public Prosecutor.

The opinion of the Supreme Court will now be referred back to the two National Court proceedings to be applied accordingly.

PNG Post-Courier
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