Is Peter O'Neill's days as PM numbered after Polye, Maipakai and Duma's sacking?
By BRYAN KRAMMER
For those you who think the recent sacking of William Duma, Don Polye and Mark Mapakai will in the short term result in the PM's removal think again.
The following comments were posted in a debate between Sonja and myself back in January 2014.
Actually there will be no interesting days ahead, any suggestion that a reshuffle in Ministry will result in PM's removal again is misconceived. Technically by law PM controls appointments to NEC. NEC has the power to make executive decisions or resolutions on behalf of the Government and the people of PNG.
If in the case where members of the NEC are challenging the PM's decision's or failing to tow the line he has the power to sack them and have them replaced with anyone of his choosing. (Hence Duma and Polyles recent sacking).
In other words the PM could sack every other coalition MP Minister and appoint all PNC MPs. And not a single MP, Party, Parliament, GG or Speaker can do anything about it. He is protected by the 30 month grace period. Come Jan 2105 when the 30 month expires that will be another story when parliament will have powers to remove him.
Those of you who's hopes rely on the arrest of the PM in relation to the Parakagate Saga to force his removal think again. The arrest of the PM will not provide a vacancy his opponents are hoping for. There is no law that provides for it.
To be honest any arrest or charges against PO over the Paraka Saga will go nowhere, arresting someone on allegations of committing an offence is one thing, convicting them for it is another...
If arrested it will only mean the he has been charged by the state for allegedly committing a crime. He will be given the right like any other citizen to defend those charges and will remain in office until proven guilty and convicted of the charges. This process will take a minimum of two years if not longer.
Paul Tiensten was arrested and charged back in Nov 2011 and was found guilty in Nov 2013 exactly two years later. However he is yet to be convicted (judge to sentence him) He was never forced to stand down or suspended from office.
In his case he admitted to signing the documents where as the PM is disputing signing the letter.
A trite principle in law is "he who alleges shoulders the burden of proof and the standard of proof in criminal offences is beyond reasonable doubt" The claim the forensic experts have proven O'neill signed the letter is circumstantial without the benefit of the original letter. The only evidence is a photo copy of it, a simple defence to this evidence is that someone photo-shopped his signature and pasted on the face of the letter.
Further a key element that needs to be proven (which the signed letter cannot ) is "mens rea" or criminal intent, merely signing a letter will not suffice to meet the required standard of proof to proving he knowingly signed it with criminal intent.
If you re-call only recently a prominent businessman Garth McIllwain former CEO of BSP was arrested and charged for purportedly forging a legal document. In the end the court dismissed the charges expressing the view the public prosecutor failed to establish the accused acted with criminal intent knowing that the documents were fraudulent when he signed them.
To secure a conviction against the PM the Public Prosecutor would need to prove that he either acted with criminal intent or benefited from the K71.8m in cash or kind. Without this key element of the offence the charges will ultimately fail.
There is the assertion that during the course of the prosecution of Paraka, Paraka himself will turn State witness to give evidence against the PM and establish the link. Firstly Paraka would have to be found guilty of fraud that process in its self would take more than two years and secondly the payment of K71.8 million is yet to be proven to be illegal.
If I was in the PM's position I would simply walk into the Boroko Police Station make myself available for questioning ask to be arrested if the police believe there is probable cause. Apply for bail and walk out. At the committal hearing before the district judge I would make an no case application confident the magistrate will dismiss the charges putting an end to the whole issue.
When a person is charged of a criminal offence the charges are first heard in the lower court (district court) by a magistrate, as to whether the evidence is capable of a successful prosecution, (prima facie case) If the magistrate does not believe the evidence is sufficient he will dismiss the charges. If the magistrate believes the evidence is sufficient the case will be committed for trial in the National Court.
Without the benefit of the PM's original letter or any witnesses to attest to him signing it the prosecution will fail to establish a prima facie case. As I previously explained the PM's council/lawyer will simply argue that someone forged his signature or copy paste it onto the face of the letter. Even with the benefit of the original letter the prosecution would need to prove there was criminal intent on the PM's part that he knew the transaction was illegal and still knowingly facilitated it. The court is yet to determine the payment of K71.8m to Paraka is illegal.
The moment the magistrate dismisses the charges in the eyes of the public PM will come off looking innocent and two making his opponents look foolish. This would make any future allegations harder to sustain in the minds of the people and law enforcement.
The point of whether the coalition would accept PO continuing in office if arrested is irrelevant. With the 30 month grace period in effect he can't be removed. Unless he chooses to resign or was convicted (more than 2 year process). I can't see that happening any time soon. After the expiry of the 30 month period being Jan 2015, ten months from now yes parliament can vote for change in the PM's post.
Of course there is the current court challenge to the 30 month grace period being unconstitutional. I was in the court on a separate issue when I witness the full bench rule in favour of Illa Geno having standing to challenge the constitutionally of the 30 month grace period. My honest opinion based on the recent the court rulings on OLIPAC and the proposed changes to the Organic Law on Ombudsman Commission being unconstitutional the court will do the same to the 30 month grace period. With the courts having a keen interest on such matters a ruling could be forthwith in three to six months.
So those parties that have a vested interest to remove the PM the only shortest option is to wait until either the Supreme Court strikes out the 30 Month Period or when it expires in Jan 2015.
However don't expect the PM to just sit back and let it happen. It is one thing to achieve an outcome unopposed, its another to achieve an outcome against an opponent with a war chest of funds and the full resources of the PM's office, not to mention being politically ruthless and cunning enough to do whatever it takes to oppose his removal.
I say all of this to put the issues in perspective and to avoid misunderstanding so people are clear about the facts.
The following comments were posted in a debate between Sonja and myself back in January 2014.
Actually there will be no interesting days ahead, any suggestion that a reshuffle in Ministry will result in PM's removal again is misconceived. Technically by law PM controls appointments to NEC. NEC has the power to make executive decisions or resolutions on behalf of the Government and the people of PNG.
If in the case where members of the NEC are challenging the PM's decision's or failing to tow the line he has the power to sack them and have them replaced with anyone of his choosing. (Hence Duma and Polyles recent sacking).
In other words the PM could sack every other coalition MP Minister and appoint all PNC MPs. And not a single MP, Party, Parliament, GG or Speaker can do anything about it. He is protected by the 30 month grace period. Come Jan 2105 when the 30 month expires that will be another story when parliament will have powers to remove him.
Those of you who's hopes rely on the arrest of the PM in relation to the Parakagate Saga to force his removal think again. The arrest of the PM will not provide a vacancy his opponents are hoping for. There is no law that provides for it.
To be honest any arrest or charges against PO over the Paraka Saga will go nowhere, arresting someone on allegations of committing an offence is one thing, convicting them for it is another...
If arrested it will only mean the he has been charged by the state for allegedly committing a crime. He will be given the right like any other citizen to defend those charges and will remain in office until proven guilty and convicted of the charges. This process will take a minimum of two years if not longer.
Paul Tiensten was arrested and charged back in Nov 2011 and was found guilty in Nov 2013 exactly two years later. However he is yet to be convicted (judge to sentence him) He was never forced to stand down or suspended from office.
In his case he admitted to signing the documents where as the PM is disputing signing the letter.
A trite principle in law is "he who alleges shoulders the burden of proof and the standard of proof in criminal offences is beyond reasonable doubt" The claim the forensic experts have proven O'neill signed the letter is circumstantial without the benefit of the original letter. The only evidence is a photo copy of it, a simple defence to this evidence is that someone photo-shopped his signature and pasted on the face of the letter.
Further a key element that needs to be proven (which the signed letter cannot ) is "mens rea" or criminal intent, merely signing a letter will not suffice to meet the required standard of proof to proving he knowingly signed it with criminal intent.
If you re-call only recently a prominent businessman Garth McIllwain former CEO of BSP was arrested and charged for purportedly forging a legal document. In the end the court dismissed the charges expressing the view the public prosecutor failed to establish the accused acted with criminal intent knowing that the documents were fraudulent when he signed them.
To secure a conviction against the PM the Public Prosecutor would need to prove that he either acted with criminal intent or benefited from the K71.8m in cash or kind. Without this key element of the offence the charges will ultimately fail.
There is the assertion that during the course of the prosecution of Paraka, Paraka himself will turn State witness to give evidence against the PM and establish the link. Firstly Paraka would have to be found guilty of fraud that process in its self would take more than two years and secondly the payment of K71.8 million is yet to be proven to be illegal.
If I was in the PM's position I would simply walk into the Boroko Police Station make myself available for questioning ask to be arrested if the police believe there is probable cause. Apply for bail and walk out. At the committal hearing before the district judge I would make an no case application confident the magistrate will dismiss the charges putting an end to the whole issue.
When a person is charged of a criminal offence the charges are first heard in the lower court (district court) by a magistrate, as to whether the evidence is capable of a successful prosecution, (prima facie case) If the magistrate does not believe the evidence is sufficient he will dismiss the charges. If the magistrate believes the evidence is sufficient the case will be committed for trial in the National Court.
Without the benefit of the PM's original letter or any witnesses to attest to him signing it the prosecution will fail to establish a prima facie case. As I previously explained the PM's council/lawyer will simply argue that someone forged his signature or copy paste it onto the face of the letter. Even with the benefit of the original letter the prosecution would need to prove there was criminal intent on the PM's part that he knew the transaction was illegal and still knowingly facilitated it. The court is yet to determine the payment of K71.8m to Paraka is illegal.
The moment the magistrate dismisses the charges in the eyes of the public PM will come off looking innocent and two making his opponents look foolish. This would make any future allegations harder to sustain in the minds of the people and law enforcement.
The point of whether the coalition would accept PO continuing in office if arrested is irrelevant. With the 30 month grace period in effect he can't be removed. Unless he chooses to resign or was convicted (more than 2 year process). I can't see that happening any time soon. After the expiry of the 30 month period being Jan 2015, ten months from now yes parliament can vote for change in the PM's post.
Of course there is the current court challenge to the 30 month grace period being unconstitutional. I was in the court on a separate issue when I witness the full bench rule in favour of Illa Geno having standing to challenge the constitutionally of the 30 month grace period. My honest opinion based on the recent the court rulings on OLIPAC and the proposed changes to the Organic Law on Ombudsman Commission being unconstitutional the court will do the same to the 30 month grace period. With the courts having a keen interest on such matters a ruling could be forthwith in three to six months.
So those parties that have a vested interest to remove the PM the only shortest option is to wait until either the Supreme Court strikes out the 30 Month Period or when it expires in Jan 2015.
However don't expect the PM to just sit back and let it happen. It is one thing to achieve an outcome unopposed, its another to achieve an outcome against an opponent with a war chest of funds and the full resources of the PM's office, not to mention being politically ruthless and cunning enough to do whatever it takes to oppose his removal.
I say all of this to put the issues in perspective and to avoid misunderstanding so people are clear about the facts.
