COURT RESTRAINS PRIME MINISTER AND ACTING OMBUDSMAN
Post Analysis - Cause and Effect
By BRYAN KRAMMER
On Wednesday 6th August 2014, the National Court issued interim injunction (temporary prevention) orders restraining (stopping) the Prime Minister (PM) Peter O'Neill as the Chairman of Ombudsman Appointments Committee and his recent appointee Mr. Howard Maliso as Acting Ombudsman.
The orders were sought by the Ombudsman Commission (OC) after the PM appointed Maliso as Acting Ombudsman on 4th July 2104. The OC initiated court proceedings to challenge Maliso's appointment on the grounds it was improper and illegal.
Both the PM and Maliso are prevented from exercising or implementing any action or decision that may interfere with the work of the OC until the determination of the proceedings.
Maliso is also restrained from taking office as Acting Ombudsman and exercising powers, duties and responsibilities of that office. The matter returns to court on 22 August 2014.
So why did the Prime Minister appoint Maliso Acting Ombudsman, and why does the Ombudsman Commission believe Maliso's appointment is improper and illegal?
Before we answer these questions, I understand many of you are still unclear about the work the office of the OC does. So it’s best I first explain.
The Ombudsman Commission is an independent institution (government agency) established by the Constitution. It is a Constitutional office and therefore answers to nobody. Its purpose is:
(a) to ensure that all governmental bodies or state agencies are responsive to the needs and aspirations of the People; and
(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and
(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and
(d) to supervise the enforcement of leadership code
The OC is sometimes referred to as the government watchdog because its function is to keep an eye on the Government by investigating any governmental body or office, including Members of Parliament. So if you are on the government payroll or hold a government appointed or elected position you’re subject to investigation by the OC.
You could say they are like the Police. They will investigate any complaint made to them or initiate their own investigations. Police are responsible for protecting people and property and investigate crimes committed by any person. OC protects the laws and only investigates the crimes committed by the government. The main difference between them are:
(1) OC protects the laws and public office. Police uphold the laws protecting life (public safety) and property.
(2) OC only investigates public office holders or government bodies, while Police investigate anyone that breaks the law (criminal).
(3) If the OC investigates a person who holds public office and believes they are guilty of misconduct in office they must formally write to them and give them the right to be heard, giving them the chance to respond to the allegations. The Police can arrest anyone on the spot if they have probable cause or reason to believe a person committed a crime or attempted to commit a crime. Police don't need to conduct an interview or give the person the right to be heard to arrest and charge them.
(4) Both OC and Police powers are provided by the Constitution. OC has its own laws, regulated by the Organic Law on Ombudsman Commission, Section 27 of Constitution -Responsibilities of Office and Organic Law on Duties and Responsibilities of Leadership. The Police are regulated by the Police Act and uphold the Criminal Code.
(5) The decision whether a person is investigated or referred to the Public Prosecutor by the OC can only be made with the approval of the Ombudsman Commissioners. In the case of the Police any Police officer has the powers of arrest, they don't require the approval of Commissioner of Police, as long as they have reasonable grounds to believe a person is guilty of committing a criminal offence.
(6) If the OC believes an accused is guilty of misconduct in office it will refer or report them to the Public Prosecutor, who, if after reviewing the OC investigations and findings will refer the case to the Leadership Tribunal. The Police will arrest and charge an accused and refer the case to the Public Prosecutor to prosecute in the Courts.
(7) OC investigations are very thorough and carried out by highly qualified professionals. Their findings are checked and doubled checked by the OC lawyers. Final approval must come by Ombudsman Commissioners before it is referred to the Public Prosecutor. For these reasons the OC has a high success rate with most if not all their cases.
Note: Constitution is the supreme or highest law. Organic laws and Acts of Parliament are like by-laws to the Constitution. The difference between them is an Organic Law is home grown and passed by Parliament after the Constitution was established. An Act of Parliament is usually other countries laws adopted by Parliament (eg: law before Independence under Australian administration).
Other functions of the OC are to investigate any defects in any law or administrative practice. To also challenge any laws passed by Parliament that are unconstitutional or in conflict with the Constitution. In 2008 the Somare Government passed laws restricting the powers of the OC. The OC referred the new laws to the Supreme Court who ruled them unconstitutional and to no legal effect.
The OC also requires persons subject to the leadership code, Members of Parliament, Heads of Department etc to disclose their personal and business incomes and financial affairs including their families and associates. This is to avoid conflict of interest with governmental contracts and benefit through appointments of directorships and similar offices held by them.
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Misconduct in Office Offences
Offences of misconduct in office are covered under both Section 27 of the Constitution - Responsibilities of Office and Organic Law on Duties and Responsibilities of Leadership. The offences of misconduct in office are very broad and a higher standard to ordinary criminal offences.
Section 27 of Constitution (summarized)
(1) A person who holds public office shall not
(a) place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) demean or spoil good name of his office or position; or
(c) allow his public or official integrity, or his personal integrity, to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the government in Papua New Guinea.
(2) use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out his duties.
(3) It is the further duty of a person to whom this Division applies–
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.
(4) Convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(5) fails to comply fails to carry out the obligations imposed
is guilty of misconduct in office.
Organic Law on Duties and Responsibilities of Leadership provides greater detail in the offences and conduct of Public Office holders including Members of Parliament.
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Process of OC Investigations & Referrals.
OC is divided into two main departments, Administration and Leadership. Each has their own staff and investigators.
When a complaint is made to the OC, the complaint whether an administrative or a leadership issue is first assessed to determine if it is a genuine complaint. It is then referred to the respective Department Directors to prepare a preliminary report to OC to investigate. The three Commissioners (Chief Ombudsman plus the two other Ombudsman) will meet to review whether there is sufficient evidence or grounds to justify an investigation. If approved, it will be referred back to the department to conduct a formal investigation. Once complete the findings are then referred back to the Commissioners to establish there is a Prima faice case and that the person is guilty of misconduct in office. "Prima Facie" is Latin and a legal term meaning on the face or first glance at the file there is sufficient evidence.
If the OC is of the opinion there is a prima facie case they will then formally write to the accused person stating the allegations and give them the right to respond within 21 days. After they receive a response either in writing or by formal interview they will then do a final assessment whether they are still satisfied there is prima facie case the person is guilty of misconduct. In some cases the accused can request for an extension of time to respond (7 or 14 days). This is if the person has a busy work schedule or overseas commitments and needs additional time.
Once the OC receives a response they will then assess it against the weight of the evidence. If they still believe the accused is guilty then they will notify them in writing and at the same time refer or report them to the Public Prosecutor. They will also issue a press statement to the media to notify the public.
The Public Prosecutor (PP) will review the OC's investigations and findings and if the PP agrees with the referral he will write to the Chief Justice (CJ) to appoint a Leadership Tribunal to hear the case. The process from when the PP receives the referral from the OC and notifying the CJ can take anywhere from one month to four months. The PP can either refer the file back for further investigations or refuse to prosecute it. If the PP fails to prosecute the matter within a reasonable period being one to four months, the OC may prosecute the case itself and write to the CJ.
The CJ will then appoint a Leadership Tribunal made up of three members, typically current or former judges. From the date the PP writes to CJ to when the tribunal is appointed is usually two weeks. The moment the PP writes to the CJ the accused or Member of Parliament is automatically suspended from office by operation of law, Section 28 of Organic Law on Duties and Responsibilities of Leadership. The only exception to this rule is in the case of the PM. In his case the tribunal must convene and decide whether he should be suspended pending the final determination of the matter (hand down their ruling).
The Tribunal will conduct a trial and after hearing the evidence they will either confirm the person is guilty or innocent. If it is a serious offence and he/she is found guilty of misconduct in office they will be dismissed (sacked) from office. The Tribunal has no powers to sentence a person found guilty of misconduct to jail (prison). If the offences are also criminal in nature then the Police can conduct their own investigations and have the accused charged also prosecuted in the Criminal Court.
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Back to the questions so why did the PM appoint Maliso Acting Ombudsman and why does Ombudsman Commission believe Maliso's appointment is improper and illegal???
The Prime Minister announced the appointment of Maliso as an Acting Ombudsman on 16 July 2014.
Maliso was appointed to fill the vacancy of late Ombudsman John Nero as the third Ombudsman and to join Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari. He was appointed by the Ombudsman Appointments Committee on May 26 and was sworn in on July 16th at the Government House. A gazettal notice dated 11 July 2014 states that the Governor General Sir Michael Ogio, acting with and in accordance with the advice of the Ombudsman Appointments Committee appointed Howard Maliso as Acting Ombudsman with effect from 4 July 2014 until further notice.
The appointments committee is chaired by the PM. The four other members of the committee include:
(1) Opposition Leader (Belden Namah),
(2) Chief Justice (Salamo Inja)
(3) Chairman of Permanent Parliamentary Committee on Appointments (MP Philip Undialu)
(4) Chairman of the Public Services Commission (Dr. Philip Kereme).
Namah claims there was no actual meeting, that only a circular (document) was sent to the Appointments Committee Members to endorse Maliso's appointment.
Prior to his appointment, Mr Maliso was employed by the OC as the Director of Legal Services.
The PM said "Maliso is well qualified and an experienced senior staff at the Commission. His appointment provides the balance necessary for the Commission to discharge its duties and responsibilities in an efficient and diligent manner.”
So why then is the OC challenging Maliso's appointment by the PM on the grounds it is improper and illegal???
Soon after the death of late John Nero the Ombudsman Commission in Jan 2014, the OC applied to the Prime Minister & Appointments Committee to appoint an Acting Ombudsman until the position was filled by a permanent appointment.
If there is a vacancy, an Acting Ombudsman can be appointed until a permanent appointee is made. Accordingly the OC nominated one of their senior directors within the Commission to serve as Acting Ombudsman until such time a permanent appointment. The PM expressed no interest to convene a meeting of the Appointments Committee to fill the vacant position.
In Feb 2014 the PM announced the controversial AUD$1.2 billion (K3.3 billion) USB loan.
On March 14, the OC issued a directive to the PM freezing any further progress on the UBS loan until it completes its own investigations into whether he followed correct legal procedures to obtain the loan.
The position of third Commissioner remained vacant so the OC advertised for a permanent appointee in April 2014. Suitable candidates were interviewed and shortlist of nominees was submitted by the OC to the Appointments Committee chaired by the PM.
By law the OC is made up of three Commissioners. Chief Ombudsman and two other Ombudsman. Section 4 of the Organic Law on Ombudsman Commission obligates of the other two Ombudsmen one shall have professional accountancy qualifications and experience (accountant) and the other shall have such administrative or legal qualifications and experience (lawyer). Both the Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari are lawyers. The late Nero was an accountant by profession.
After three months of investigations into the UBS loan it’s believed the OC held the view the loan was illegal and the PM was guilty of misconduct in office for approving it without complying with proper legal and administrative procedures.
In June the OC wrote to the Prime Minister to answer to the charges against him, that is he was given the right to be heard against the allegations.
Around the same time the PM had already received notice of the shortlist of candidates to fill the vacancy of the third Ombudsman. Rather than confirming a permanent position from the short list of candidates he instead appoint Maliso who is a close associate to the PM’s Chief of Staff Issac Lupari.
The same Issac Lupari who was implicated in the findings of the Commission of Inquiry into the Finance Department for allegedly stealing K3.7 million of public funds through false claims for breach of contract. It was alleged the false claims were drafted and submitted by Guguna Garo, of Paul Paraka lawyers, and were illegally settled by the then Solicitor General, Zachary Gelu. In addition to the K3.7 million, a further K800,000 was paid to Paul Paraka lawyers from public funds for their role in facilitating the fraud. The Commission of Inquiry recommended Isaac Lupari, Zacchary Gelu and Guguna Garo all be investigated by the police with a view to prosecution for fraud and conspiracy.
The same Issac Lupari was is also alleged to be at the centre of the PM’s efforts to avoid or prevent his arrest. The architect behind the appointments of Geoffrey Vaki as Commissioner of Police and Ano Pala's as Attorney General and now Maliso's as Acting Ombudsman. If true, I suspect Lupari is relying on the highly paid advice and services of overseas lawyers. Putting the microscope over our laws looking for every loophole to either circumvent the system or delay the process.
OC is challenging Maliso's appointment on the grounds it was improper and illegal. Insofar as the position was for a permanent appointment not acting. Maliso was never considered or shortlisted for the position but hand-picked by the PM, thus breaching all proper appointment procedures. Further the vacancy can only be filled by a person who possess accountancy qualifications and experience. Maliso is not an accountant and has a Bachelors Degree in Law and Theology and therefore not eligible.
Maliso being former legal council (lawyer) to the OC knew this and should not have accepted the appointment with the knowledge it was highly improper.
So was Maliso's appointment a genuine oversight or by design to compromise and interfere with the OC investigations into the PM???
For now the OC in their own wisdom obtained interim restraining orders against Maliso from taking office thus to protect the integrity of the Commission and its decision-making processes.
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Up until now many believe the PM will be removed from office once he is arrested. This is in fact incorrect. Like every other citizen if arrested he remains innocent until proven guilty. The PM would simply apply for bail and defend his innocence in the Courts. Criminal proceedings against him would take up to two years before the Court would determine if he was guilty or innocent of the charges. Further, even if convicted (found guilty), he would still be afforded the right to appeal. If you recall Paul Tiensten was charged in November 2011 and exactly two years later in November 2013 he was convicted by the National Court. The Court didn't sentence (imprison) him until February 2014. During that period Tiensten remained out on bail and a Member of Parliament. Following the decision Tiensten appealed his conviction, so even after being imprisoned he remains an MP until the Supreme Court rules on his appeal. If the PM is arrested tomorrow in relation to Paraka issue he could remain in office possibily until 2017.
The Prime Minister can only be removed or dismissed from office in the following circumstances.
(1) voted out of office (Section 145(2) of Constitution)
(2) found guilty of misconduct in office by leadership tribunal and dismissed from office (Section 31 & 103(3)(f) of Constitution)
(3) of unsound mind or insane (Section 103(3)(b) of Constitution)
(4) under sentenced to death or imprisonment of more than 9 months (Section 103(3)(c) of Constitution)
(5) insolvent or bankrupt (Section 103(3)(d) of Constitution)
(6) Suspended by NEC for health reasons (Section 6 of Prime Minister & National Executive Act).
The Prime Minister under the guise of political stability convinced Parliament to amended Section 145(2) of Constitution extending the grace period preventing any vote of no confidence from 18 to 30 months.
So for now he cannot be voted out of office until Jan 2015. Ila Geno and Belden Namah filed a Supreme Court Reference challenging the amendments to grace period as unconstitutional. The Supreme Court will hear the matter on 27th August 2014. It is beyond doubt the amendments will be thrown out by the Courts. Even so who would vote against Prime Minister. He enjoys the majority support of Parliament who have been induced with million kina project funding and district funds all to reinsure their own election in 2017.
This is not to say the PM's arrest or the removal of the 30 month grace period is not important. His arrest would damage him politically. Up until now he has been telling all his supporters he will never be arrested and issue will die out. The same was said about the National Court Judge Kariko ruling in favour of the PM's to stay the arrest, which he didn't. This you could say is to avoid the rats jumping ship.
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Conclusion
The only feasible means to remove Peter O'Neill is his dismissal from Office by a Leadership Tribunal.
The OC investigated Peter O'Neil in relation to the UBS loan. They found there was prima facie case for misconduct in office. In June the OC formally wrote to him giving 21 days to answer to the allegations. He requested and was granted a 14 day extension. Reports indicate he has responded and his referral to the Public Prosecutor by the OC is imminent (certain). The only uncertainty will be whether he will be removed in two or four months.
Part 2 of my next article will explain the possible attempts to interfere or delay this process. Bear in mind Peter O'Neill's first attempt through the appointment of Acting Ombudsman has since been stalled. I will also discuss who he will likely appoint as Acting PM in the event his is suspended, also his likely successor should/when he is dismissed from office.
By BRYAN KRAMMER
On Wednesday 6th August 2014, the National Court issued interim injunction (temporary prevention) orders restraining (stopping) the Prime Minister (PM) Peter O'Neill as the Chairman of Ombudsman Appointments Committee and his recent appointee Mr. Howard Maliso as Acting Ombudsman.
The orders were sought by the Ombudsman Commission (OC) after the PM appointed Maliso as Acting Ombudsman on 4th July 2104. The OC initiated court proceedings to challenge Maliso's appointment on the grounds it was improper and illegal.
Both the PM and Maliso are prevented from exercising or implementing any action or decision that may interfere with the work of the OC until the determination of the proceedings.
Maliso is also restrained from taking office as Acting Ombudsman and exercising powers, duties and responsibilities of that office. The matter returns to court on 22 August 2014.
So why did the Prime Minister appoint Maliso Acting Ombudsman, and why does the Ombudsman Commission believe Maliso's appointment is improper and illegal?
Before we answer these questions, I understand many of you are still unclear about the work the office of the OC does. So it’s best I first explain.
The Ombudsman Commission is an independent institution (government agency) established by the Constitution. It is a Constitutional office and therefore answers to nobody. Its purpose is:
(a) to ensure that all governmental bodies or state agencies are responsive to the needs and aspirations of the People; and
(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and
(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and
(d) to supervise the enforcement of leadership code
The OC is sometimes referred to as the government watchdog because its function is to keep an eye on the Government by investigating any governmental body or office, including Members of Parliament. So if you are on the government payroll or hold a government appointed or elected position you’re subject to investigation by the OC.
You could say they are like the Police. They will investigate any complaint made to them or initiate their own investigations. Police are responsible for protecting people and property and investigate crimes committed by any person. OC protects the laws and only investigates the crimes committed by the government. The main difference between them are:
(1) OC protects the laws and public office. Police uphold the laws protecting life (public safety) and property.
(2) OC only investigates public office holders or government bodies, while Police investigate anyone that breaks the law (criminal).
(3) If the OC investigates a person who holds public office and believes they are guilty of misconduct in office they must formally write to them and give them the right to be heard, giving them the chance to respond to the allegations. The Police can arrest anyone on the spot if they have probable cause or reason to believe a person committed a crime or attempted to commit a crime. Police don't need to conduct an interview or give the person the right to be heard to arrest and charge them.
(4) Both OC and Police powers are provided by the Constitution. OC has its own laws, regulated by the Organic Law on Ombudsman Commission, Section 27 of Constitution -Responsibilities of Office and Organic Law on Duties and Responsibilities of Leadership. The Police are regulated by the Police Act and uphold the Criminal Code.
(5) The decision whether a person is investigated or referred to the Public Prosecutor by the OC can only be made with the approval of the Ombudsman Commissioners. In the case of the Police any Police officer has the powers of arrest, they don't require the approval of Commissioner of Police, as long as they have reasonable grounds to believe a person is guilty of committing a criminal offence.
(6) If the OC believes an accused is guilty of misconduct in office it will refer or report them to the Public Prosecutor, who, if after reviewing the OC investigations and findings will refer the case to the Leadership Tribunal. The Police will arrest and charge an accused and refer the case to the Public Prosecutor to prosecute in the Courts.
(7) OC investigations are very thorough and carried out by highly qualified professionals. Their findings are checked and doubled checked by the OC lawyers. Final approval must come by Ombudsman Commissioners before it is referred to the Public Prosecutor. For these reasons the OC has a high success rate with most if not all their cases.
Note: Constitution is the supreme or highest law. Organic laws and Acts of Parliament are like by-laws to the Constitution. The difference between them is an Organic Law is home grown and passed by Parliament after the Constitution was established. An Act of Parliament is usually other countries laws adopted by Parliament (eg: law before Independence under Australian administration).
Other functions of the OC are to investigate any defects in any law or administrative practice. To also challenge any laws passed by Parliament that are unconstitutional or in conflict with the Constitution. In 2008 the Somare Government passed laws restricting the powers of the OC. The OC referred the new laws to the Supreme Court who ruled them unconstitutional and to no legal effect.
The OC also requires persons subject to the leadership code, Members of Parliament, Heads of Department etc to disclose their personal and business incomes and financial affairs including their families and associates. This is to avoid conflict of interest with governmental contracts and benefit through appointments of directorships and similar offices held by them.
//////////////////////////////////////////////////////////////////////////////////////////////////////////
Misconduct in Office Offences
Offences of misconduct in office are covered under both Section 27 of the Constitution - Responsibilities of Office and Organic Law on Duties and Responsibilities of Leadership. The offences of misconduct in office are very broad and a higher standard to ordinary criminal offences.
Section 27 of Constitution (summarized)
(1) A person who holds public office shall not
(a) place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) demean or spoil good name of his office or position; or
(c) allow his public or official integrity, or his personal integrity, to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the government in Papua New Guinea.
(2) use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out his duties.
(3) It is the further duty of a person to whom this Division applies–
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.
(4) Convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(5) fails to comply fails to carry out the obligations imposed
is guilty of misconduct in office.
Organic Law on Duties and Responsibilities of Leadership provides greater detail in the offences and conduct of Public Office holders including Members of Parliament.
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Process of OC Investigations & Referrals.
OC is divided into two main departments, Administration and Leadership. Each has their own staff and investigators.
When a complaint is made to the OC, the complaint whether an administrative or a leadership issue is first assessed to determine if it is a genuine complaint. It is then referred to the respective Department Directors to prepare a preliminary report to OC to investigate. The three Commissioners (Chief Ombudsman plus the two other Ombudsman) will meet to review whether there is sufficient evidence or grounds to justify an investigation. If approved, it will be referred back to the department to conduct a formal investigation. Once complete the findings are then referred back to the Commissioners to establish there is a Prima faice case and that the person is guilty of misconduct in office. "Prima Facie" is Latin and a legal term meaning on the face or first glance at the file there is sufficient evidence.
If the OC is of the opinion there is a prima facie case they will then formally write to the accused person stating the allegations and give them the right to respond within 21 days. After they receive a response either in writing or by formal interview they will then do a final assessment whether they are still satisfied there is prima facie case the person is guilty of misconduct. In some cases the accused can request for an extension of time to respond (7 or 14 days). This is if the person has a busy work schedule or overseas commitments and needs additional time.
Once the OC receives a response they will then assess it against the weight of the evidence. If they still believe the accused is guilty then they will notify them in writing and at the same time refer or report them to the Public Prosecutor. They will also issue a press statement to the media to notify the public.
The Public Prosecutor (PP) will review the OC's investigations and findings and if the PP agrees with the referral he will write to the Chief Justice (CJ) to appoint a Leadership Tribunal to hear the case. The process from when the PP receives the referral from the OC and notifying the CJ can take anywhere from one month to four months. The PP can either refer the file back for further investigations or refuse to prosecute it. If the PP fails to prosecute the matter within a reasonable period being one to four months, the OC may prosecute the case itself and write to the CJ.
The CJ will then appoint a Leadership Tribunal made up of three members, typically current or former judges. From the date the PP writes to CJ to when the tribunal is appointed is usually two weeks. The moment the PP writes to the CJ the accused or Member of Parliament is automatically suspended from office by operation of law, Section 28 of Organic Law on Duties and Responsibilities of Leadership. The only exception to this rule is in the case of the PM. In his case the tribunal must convene and decide whether he should be suspended pending the final determination of the matter (hand down their ruling).
The Tribunal will conduct a trial and after hearing the evidence they will either confirm the person is guilty or innocent. If it is a serious offence and he/she is found guilty of misconduct in office they will be dismissed (sacked) from office. The Tribunal has no powers to sentence a person found guilty of misconduct to jail (prison). If the offences are also criminal in nature then the Police can conduct their own investigations and have the accused charged also prosecuted in the Criminal Court.
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Back to the questions so why did the PM appoint Maliso Acting Ombudsman and why does Ombudsman Commission believe Maliso's appointment is improper and illegal???
The Prime Minister announced the appointment of Maliso as an Acting Ombudsman on 16 July 2014.
Maliso was appointed to fill the vacancy of late Ombudsman John Nero as the third Ombudsman and to join Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari. He was appointed by the Ombudsman Appointments Committee on May 26 and was sworn in on July 16th at the Government House. A gazettal notice dated 11 July 2014 states that the Governor General Sir Michael Ogio, acting with and in accordance with the advice of the Ombudsman Appointments Committee appointed Howard Maliso as Acting Ombudsman with effect from 4 July 2014 until further notice.
The appointments committee is chaired by the PM. The four other members of the committee include:
(1) Opposition Leader (Belden Namah),
(2) Chief Justice (Salamo Inja)
(3) Chairman of Permanent Parliamentary Committee on Appointments (MP Philip Undialu)
(4) Chairman of the Public Services Commission (Dr. Philip Kereme).
Namah claims there was no actual meeting, that only a circular (document) was sent to the Appointments Committee Members to endorse Maliso's appointment.
Prior to his appointment, Mr Maliso was employed by the OC as the Director of Legal Services.
The PM said "Maliso is well qualified and an experienced senior staff at the Commission. His appointment provides the balance necessary for the Commission to discharge its duties and responsibilities in an efficient and diligent manner.”
So why then is the OC challenging Maliso's appointment by the PM on the grounds it is improper and illegal???
Soon after the death of late John Nero the Ombudsman Commission in Jan 2014, the OC applied to the Prime Minister & Appointments Committee to appoint an Acting Ombudsman until the position was filled by a permanent appointment.
If there is a vacancy, an Acting Ombudsman can be appointed until a permanent appointee is made. Accordingly the OC nominated one of their senior directors within the Commission to serve as Acting Ombudsman until such time a permanent appointment. The PM expressed no interest to convene a meeting of the Appointments Committee to fill the vacant position.
In Feb 2014 the PM announced the controversial AUD$1.2 billion (K3.3 billion) USB loan.
On March 14, the OC issued a directive to the PM freezing any further progress on the UBS loan until it completes its own investigations into whether he followed correct legal procedures to obtain the loan.
The position of third Commissioner remained vacant so the OC advertised for a permanent appointee in April 2014. Suitable candidates were interviewed and shortlist of nominees was submitted by the OC to the Appointments Committee chaired by the PM.
By law the OC is made up of three Commissioners. Chief Ombudsman and two other Ombudsman. Section 4 of the Organic Law on Ombudsman Commission obligates of the other two Ombudsmen one shall have professional accountancy qualifications and experience (accountant) and the other shall have such administrative or legal qualifications and experience (lawyer). Both the Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari are lawyers. The late Nero was an accountant by profession.
After three months of investigations into the UBS loan it’s believed the OC held the view the loan was illegal and the PM was guilty of misconduct in office for approving it without complying with proper legal and administrative procedures.
In June the OC wrote to the Prime Minister to answer to the charges against him, that is he was given the right to be heard against the allegations.
Around the same time the PM had already received notice of the shortlist of candidates to fill the vacancy of the third Ombudsman. Rather than confirming a permanent position from the short list of candidates he instead appoint Maliso who is a close associate to the PM’s Chief of Staff Issac Lupari.
The same Issac Lupari who was implicated in the findings of the Commission of Inquiry into the Finance Department for allegedly stealing K3.7 million of public funds through false claims for breach of contract. It was alleged the false claims were drafted and submitted by Guguna Garo, of Paul Paraka lawyers, and were illegally settled by the then Solicitor General, Zachary Gelu. In addition to the K3.7 million, a further K800,000 was paid to Paul Paraka lawyers from public funds for their role in facilitating the fraud. The Commission of Inquiry recommended Isaac Lupari, Zacchary Gelu and Guguna Garo all be investigated by the police with a view to prosecution for fraud and conspiracy.
The same Issac Lupari was is also alleged to be at the centre of the PM’s efforts to avoid or prevent his arrest. The architect behind the appointments of Geoffrey Vaki as Commissioner of Police and Ano Pala's as Attorney General and now Maliso's as Acting Ombudsman. If true, I suspect Lupari is relying on the highly paid advice and services of overseas lawyers. Putting the microscope over our laws looking for every loophole to either circumvent the system or delay the process.
OC is challenging Maliso's appointment on the grounds it was improper and illegal. Insofar as the position was for a permanent appointment not acting. Maliso was never considered or shortlisted for the position but hand-picked by the PM, thus breaching all proper appointment procedures. Further the vacancy can only be filled by a person who possess accountancy qualifications and experience. Maliso is not an accountant and has a Bachelors Degree in Law and Theology and therefore not eligible.
Maliso being former legal council (lawyer) to the OC knew this and should not have accepted the appointment with the knowledge it was highly improper.
So was Maliso's appointment a genuine oversight or by design to compromise and interfere with the OC investigations into the PM???
For now the OC in their own wisdom obtained interim restraining orders against Maliso from taking office thus to protect the integrity of the Commission and its decision-making processes.
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Up until now many believe the PM will be removed from office once he is arrested. This is in fact incorrect. Like every other citizen if arrested he remains innocent until proven guilty. The PM would simply apply for bail and defend his innocence in the Courts. Criminal proceedings against him would take up to two years before the Court would determine if he was guilty or innocent of the charges. Further, even if convicted (found guilty), he would still be afforded the right to appeal. If you recall Paul Tiensten was charged in November 2011 and exactly two years later in November 2013 he was convicted by the National Court. The Court didn't sentence (imprison) him until February 2014. During that period Tiensten remained out on bail and a Member of Parliament. Following the decision Tiensten appealed his conviction, so even after being imprisoned he remains an MP until the Supreme Court rules on his appeal. If the PM is arrested tomorrow in relation to Paraka issue he could remain in office possibily until 2017.
The Prime Minister can only be removed or dismissed from office in the following circumstances.
(1) voted out of office (Section 145(2) of Constitution)
(2) found guilty of misconduct in office by leadership tribunal and dismissed from office (Section 31 & 103(3)(f) of Constitution)
(3) of unsound mind or insane (Section 103(3)(b) of Constitution)
(4) under sentenced to death or imprisonment of more than 9 months (Section 103(3)(c) of Constitution)
(5) insolvent or bankrupt (Section 103(3)(d) of Constitution)
(6) Suspended by NEC for health reasons (Section 6 of Prime Minister & National Executive Act).
The Prime Minister under the guise of political stability convinced Parliament to amended Section 145(2) of Constitution extending the grace period preventing any vote of no confidence from 18 to 30 months.
So for now he cannot be voted out of office until Jan 2015. Ila Geno and Belden Namah filed a Supreme Court Reference challenging the amendments to grace period as unconstitutional. The Supreme Court will hear the matter on 27th August 2014. It is beyond doubt the amendments will be thrown out by the Courts. Even so who would vote against Prime Minister. He enjoys the majority support of Parliament who have been induced with million kina project funding and district funds all to reinsure their own election in 2017.
This is not to say the PM's arrest or the removal of the 30 month grace period is not important. His arrest would damage him politically. Up until now he has been telling all his supporters he will never be arrested and issue will die out. The same was said about the National Court Judge Kariko ruling in favour of the PM's to stay the arrest, which he didn't. This you could say is to avoid the rats jumping ship.
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Conclusion
The only feasible means to remove Peter O'Neill is his dismissal from Office by a Leadership Tribunal.
The OC investigated Peter O'Neil in relation to the UBS loan. They found there was prima facie case for misconduct in office. In June the OC formally wrote to him giving 21 days to answer to the allegations. He requested and was granted a 14 day extension. Reports indicate he has responded and his referral to the Public Prosecutor by the OC is imminent (certain). The only uncertainty will be whether he will be removed in two or four months.
Part 2 of my next article will explain the possible attempts to interfere or delay this process. Bear in mind Peter O'Neill's first attempt through the appointment of Acting Ombudsman has since been stalled. I will also discuss who he will likely appoint as Acting PM in the event his is suspended, also his likely successor should/when he is dismissed from office.
