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Uproar over foreign judges to hear Somare’s case

The Chief Justice of Papua New Guinea Sir Salamo Injia has brought in three foreign judges to sit on the leadership tribunal to hear the misconduct charges against Prime Minister Sir Michael Thomas Somare.
It will be the first time in the history of Papua New Guinea since it gained independence on 16 September 1975 that a Prime Minister has been charged by the Ombudsman Commission for breaching the Leadership Code, which applies to all leaders.

Somare was the chairman of the Constitutional Planning Committee which drew up PNG’s constitution and now he will face the same law he wrote for the newly emerging nation state.

The tribunal will consist of Roger Gyles AO, QC, a former judge of the Federal Court of Australia, as chairman; and the members are Sir Bruce Robertson, a former Judge of the Court of Appeal and the high Court of New Zealand; and Sir Robin Auld, a former Lord Justice of Appeal of the Court of Appeal of England and Wales.

Injia said the appointments of the three senior judges were made in consultation with the Chief Justices of the three countries—Australia, New Zealand and England.
Injia said the appointments are provided for in Section 27(7)(d)(111) and 98) of the Organic Law on Duties and Responsibilities of Leadership.

The allegations against Somare will be presented to the Leadership Tribunal by the Public Prosecutor on March 10 at the Waigani Supreme Court building.
Injia said that having considered the request made by the Acting Public Prosecutor on 16 December 2010, there was no impediment which stood in the way of an appointment of a Leadership Tribunal to enquire into the allegations and therefore he appointed the tribunal.

Anger over foreign judges
But the appointment of the three foreign judges has angered former Attorney-General Dr Allan Marat. 
Dr Marat, who is the Member for Rabaul in the East New Britain Province, was sacked by Somare last year for speaking out against the government. He questioned why no Papua New Guinean judges were appointed to handle the Prime Minister’s case.

Dr Marat said the decision by the Chief Justice was a discouragement and not a good way to develop Papua New Guinea judges by giving them high profile cases. “It goes to show we don’t have confidence in our own judges and we assume they are biased,” Dr Marat said. The Post-Courier newspaper reported that Somare was not likely to step down from office while the tribunal hears the charges despite having said he would do so. His office said Somare will remain in office subject to the law. The law differentiates between Ministers and Prime Minister faced with leadership breach charges.

Ministers facing the leadership tribunal are automatically suspended from office under Section 144(3) of the PNG Constitution. The Prime Minister’s own daughter and media adviser, Betha Somare said: “The process is taking its course and the Prime Minister is acting within the law and will therefore continue to fully comply with the law.” On December 9, 2010, Somare made a commitment that he would step down from office once a tribunal was set up to hear the charges against him.

Prominent private lawyer Loani Henao said the law relating to the automatic suspension of leaders facing the leadership tribunal should also apply to the Prime Minister.
Henao, son of a former moderator of the United Church of Papua New Guinea and Solomon Islands, said the effect of the referrals under Sections 27 and 28 of the Organic Law on Duties and Responsibilities of Leadership applied to “all leaders.” “It does not matter if they are Ministers, the Prime Minister or departmental heads,” Henao said. “Sections 27 and 28 mean that the leader or Prime Minister is automatically suspended from office with full pay by the chairman of the tribunal,” Henao said.

Henao said the bottom line under the Organic Law was that once a person’s integrity under the Organic Law was called into question, that person should not continue to perform his duties, responsibilities and functions as a constitutional office holder. But the First Legislative Counsel for the PNG Government, Hudson Ramatlap, disputed Henao’s statement. Ramatlap said the constitution gives the tribunal authority to exercise its discretion, it is not mandatory, it is up to the tribunal. He added that the Prime Minister is dealt with separately under the constitution and that Henao’s views are incorrect.

While the Chief Justice has appointed a tribunal to determine the charges against Somare, his lawyers have filed a reference in the Papua New Guinea Supreme Court to review the manner in which the Ombudsman’s Commission went about handling the matter against him. The reference was filed by Somare’s lawyers Posman Kua Aisi Lawyers seeking the high court’s opinion on how their client’s case was examined, investigated and subsequently referred to the Public Prosecutor by the Ombudsman’s Commission. On 26 June 2008, the Ombudsman Commission referred Somare to the Public Prosecutor on allegations of misconduct in office.

The commission alleged that he failed to furnish annual statements for the period 16 May 1993 to 15 May 1994, 16 May 1995 to 15 May 1996 and 16 May 1996 to 15 May 1997.
He also failed to submit five annual statements when due. These are for 16 May 1998 to 15 May 1999, 16 May 1999 to 15 May 2000, 16 May 2000 to 15 May 2001, 16 May 2001 to 15 May 2002 and 16 May 2003 to 15 May 2004. The Ombudsman Commission also alleged that the Prime Minister submitted incomplete annual statements for the periods 16 May 1992 to 15 May 1993, 16 May 1993 to 15 May 1994, 16 May 1997 to 15 May 1998, 16 May 1999 to 15 May 2000, 16 May 2000 to 15 May 2001, 16 May 2001 to 15 May 2002, 16 May 2002 to 15 May 2003, 16 May 2003 to 15 May 2004 and 16 May 2004 to 15 May 2005.

The Ombudsman Commission stated that the Prime Minister was given his right to be heard which he exercised. “The commission duly considered and deliberated on the matter and found that it was not satisfied that the leader had discharged the allegations. “The commission further found that there is a prima facie evidence that the leader is guilty of misconduct in office in relation to all three categories of allegations.
The Prime Minister was informed of the commission’s decision through his lawyers.

Since then, Somare has mounted a legal challenge to permanently restrain the commission from continuing with its investigations. The courts on 24 June 2008 refused an application by the Prime Minister to temporarily restrain the commission from carrying out its Constitutional functions. One 13 December 2010 the Prime Minister’s Media Office issued a statement which stated: “The Prime Minister Sir Michael Somare said he will now voluntarily step aside and allow the deputy prime minister Sam Abal to assume full function and responsibility of the Office of the Prime Minister while he attends to clearing his name. 

“Somare made this decision in light of the referral by the Acting Public Prosecutor, Jimmy Wala Tamate to the Chief Justice, Sir Salamo Injia, asking him to establish a tribunal in reference to the alleged non lodgement of three annual returns.
“While the Supreme Court has yet to give the prime minister an opportunity to be heard on his reference, the public prosecutor has proceeded to make a referral.
“However, the Prime Minister respects the due processes and will continue to avail himself to the hearings.
“Somare has not been given any opportunity as a citizen and as a prime minister to be heard since the filing of his substantive case in 2008 until today.

Gross injustice
“Over the past few days, no judges had been assigned or availed themselves to hear his application for an injunction. “This is gross injustice to any citizen who is deprived of their basic right to be heard in a competent forum. “Somare’s voluntary action will ensure the proceedings take place unhindered.”

Five weeks later, another statement was issued announcing that Somare was resuming duties from recreational leave. The media and the general public reached for their dictionaries to find the definition of ‘stepping aside’ and taking ‘recreational leave.’

PNG goes to the polls next year—and if Somare decides to retire from politics—then a new question arises as to whether the leadership tribunal can still proceed to hear the charges against him.
He will no longer hold a substantive leadership position within the meaning of the Organic Law on the Duties and Responsibilities of Leadership. The question would be whether he can still be subjected to the tribunal hearing.

His lawyers may then have to go back to court to get an interpretation. The current law states that once a leader resigns from office or retires and no longer holds a leadership position, he is no longer subjected to the Organic Law and therefore cannot be subjected to the tribunal hearing.

Oseah Philemon is a PNG veteran journalist and the former long time editor of the South Pacific Post's Post Courier Newspaper in Papua New Guinea, this article was first published on the Island Business Magazine and can be accessed here