PUBLICIZE WHAT MORE EVIDENCE IS REQUIRED
By NEMA YALO
On 17 September 2014 this writer through the media (The National and
the Post Courier) called on the Public Prosecutor (PP) to decide on the
leadership referral relating to the Prime Minister. This was because by
then 35 days had passed and there was no word from the PP that he was
attending to the matter. According to recent media report (Post Courier,
10.10.14) the PP has requested the Ombudsman Commission (OC) provide
further relevant evidentiary material to assist him make his decision.
At least the nation can be rest assured that the PP is deliberating on
the matter.
As of Friday 10 October 2014 when the PP had made that request to the OC, 59 days had lapsed and we’re still counting. That computes to two months. According to the media report (Pacific Business Review, 27.09.14) there were three allegations against the Prime Minister: (1) that the Prime Minister failed to comply with administrative and financial processes, including the usual overseas financial borrowing processes in approving AU$1.239 billion (K3.3b) loan from the Union Bank of Switzerland (UBS Australian branch); and (2) the Prime Minister issued misleading and false statements in the media about the real reasons behind his sacking of the former treasurer Don Polye when in fact the sacking was for Mr Polye in his capacity as the Treasurer allegedly refusing to sign off on the loan because the Parliament had not approved the loan in the 2014 budget under Section 209 of the Constitution; and (3) the Prime Minister made misleading and false statements whilst addressing the nation on EMTV that he had obtained legal advice from the relevant State agencies such as the Bank of PNG to obtain the loan when in fact the Governor of BPNG had denied giving any advice on the loan.
To the average person these allegations are fairly straight forward. They do not appear to be complex. So the same average person concerned about the timely administration of the Leadership Code aimed at strengthening leadership in Papua New Guinea can be forgiven for asking why it has taken 59 days for the PP to realize that he needs more evidence to assist him. It is public knowledge that the Prime Minister has not denied obtaining the loan. For the sake of transparency and therefore public confidence in the independence of the two independent constitutional offices and in the administration of the Leadership Code at the broader standpoint, the OC must now reveal to the public what more evidence the PP requires. The issue is no longer under the legally “confidential” domain as stipulated by the Constitutional Laws. The ‘cat has been let out of the bag’ by operation of the same laws when the investigation conducted in confidence was referred to the PP on 12 August 2014. For the sake of transparency, the PP has made his position public and so the OC must do likewise for the same reason.
The purpose of this article is that whilst the allegations are against the Prime Minister they inevitably bring into serious doubt the public confidence and public respect for in the integrity of the office of the Prime Minister. (The term “public” as used in the Constitution, section 27(1) should be given a broader interpretation to mean that the public comprises citizens and non-citizens whether in PNG or abroad.) In that connection why are these allegations being left for so long with apparently little sense of urgency accorded to them given the nature of the office affected? These allegations affect one of the highest offices on the land. It is immaterial who occupies the office at any one time. It is the People’s office. A Prime Minister usually holds it in trust for the People at any given time. This is the office that the governments of other nations, their leaders and their representatives look at and interact with first and foremost. Why is the PP not seeing the importance of the People’s Office in the same way the People see it? Why is there little sense of urgency in order to preserve the integrity of that office? These are legitimate questions the People are asking. The risk of unnecessary negative public perception regarding the efficiency in the administration of the Leadership Code and regarding its key players must be avoided under all circumstances.
The administration of the Leadership Code is a serious business. It forms part of the integral mechanics of government that enables the nation’s leadership and the integrity in the leadership and the leadership offices work and it aims to ensure strength to withstand forces that might make it weak. It also forms part of the core pillars under our Constitution that make our nation stand upright and move forward. Therefore the role of each key player in the administration of the Leadership Code is an onerous one.
The OC must reveal the nature of the evidence the PP has requested of it. The nation is entitled to know if the OC omitted the evidentiary material that the PP is seeking. It attracts questions regarding the efficiency or the lack of it in its administrative processes. In addition, and with respect, the Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari themselves being lawyers of standing and their in-house lawyers having considerable wealth of experience in this particular area of law have their professionalism placed under scrutiny. So are these relevant material already included in the OC’s “Statement of Reasons” (SoR) presented to the PP at the date of referral? In any case, are they material evidence pertinent to the allegations that have a bearing on the exercise of the PP’s discretion which he cannot do without? Or are they material evidence even if omitted the PP could do without and make his decision?
Why should these question be posed? In this writer’s experience the OC’s SoR usually contains all the relevant evidentiary material that supports its findings against the allegations put to any leader concerned. It usually contains the allegations against the leader, the leader’s response to the allegations and the OC’s analysis, findings and its conclusions. The standard of proof the relevant Constitutional Law imposes on the OC is “prima facie” evidence or evidence “on the face of it”. It must satisfy this test in order to make a referral to the PP. However it usually takes itself lower in its investigations and collation of evidence and satisfies any test higher than mere ‘prima facie” evidence prior to making a referral. In allegations that are criminal in nature it usually ensures that the evidence upon which it basis its findings and conclusions are the same standard that a leadership tribunal will apply, that is, ‘beyond a reasonable doubt’.
Applying this experience to the nature of allegations against the Prime Minister none is criminal in nature. So the questions posed earlier regarding the PP’s request are relevant. From experience this writer will not be surprised if the OC has omitted very little pertinent evidentiary material, if any, in compiling its SoR.
But the counter position must be considered. The Office of the Prime Minister is important. The PP must ensure there is evidence that warrants a decision to prosecute the matter or else he exercises his prerogative to decline to prosecute. He has a wealth of experience in prosecuting leadership matters as well as criminal prosecutions. He has reviewed the file and has made the request accordingly. The public should be reminded that the PP has absolute discretion in that regard. The PP is not subject to direction or control by any person or authority. In addition the Supreme Court enunciated in a Special Reference by the OC relating to the PP’s powers to request a leadership tribunal interpreted and applied Constitution Section 29(2) that the PP must make decision to prosecute or decline to prosecute a leader referred to him by the OC “… within a period of one to four except where special circumstances of a particular case requires a longer period” (decision dated 29.08.08).
In this instance the unique circumstances of the case requires much less than four months if the PP appreciates and extends the necessary curtesy to the importance of the People’s Office of the Prime Minister. In the meantime it seems that a serious matter of immense public interest is, with the greatest respect, not given the urgent attention it rightly deserves.
As of Friday 10 October 2014 when the PP had made that request to the OC, 59 days had lapsed and we’re still counting. That computes to two months. According to the media report (Pacific Business Review, 27.09.14) there were three allegations against the Prime Minister: (1) that the Prime Minister failed to comply with administrative and financial processes, including the usual overseas financial borrowing processes in approving AU$1.239 billion (K3.3b) loan from the Union Bank of Switzerland (UBS Australian branch); and (2) the Prime Minister issued misleading and false statements in the media about the real reasons behind his sacking of the former treasurer Don Polye when in fact the sacking was for Mr Polye in his capacity as the Treasurer allegedly refusing to sign off on the loan because the Parliament had not approved the loan in the 2014 budget under Section 209 of the Constitution; and (3) the Prime Minister made misleading and false statements whilst addressing the nation on EMTV that he had obtained legal advice from the relevant State agencies such as the Bank of PNG to obtain the loan when in fact the Governor of BPNG had denied giving any advice on the loan.
To the average person these allegations are fairly straight forward. They do not appear to be complex. So the same average person concerned about the timely administration of the Leadership Code aimed at strengthening leadership in Papua New Guinea can be forgiven for asking why it has taken 59 days for the PP to realize that he needs more evidence to assist him. It is public knowledge that the Prime Minister has not denied obtaining the loan. For the sake of transparency and therefore public confidence in the independence of the two independent constitutional offices and in the administration of the Leadership Code at the broader standpoint, the OC must now reveal to the public what more evidence the PP requires. The issue is no longer under the legally “confidential” domain as stipulated by the Constitutional Laws. The ‘cat has been let out of the bag’ by operation of the same laws when the investigation conducted in confidence was referred to the PP on 12 August 2014. For the sake of transparency, the PP has made his position public and so the OC must do likewise for the same reason.
The purpose of this article is that whilst the allegations are against the Prime Minister they inevitably bring into serious doubt the public confidence and public respect for in the integrity of the office of the Prime Minister. (The term “public” as used in the Constitution, section 27(1) should be given a broader interpretation to mean that the public comprises citizens and non-citizens whether in PNG or abroad.) In that connection why are these allegations being left for so long with apparently little sense of urgency accorded to them given the nature of the office affected? These allegations affect one of the highest offices on the land. It is immaterial who occupies the office at any one time. It is the People’s office. A Prime Minister usually holds it in trust for the People at any given time. This is the office that the governments of other nations, their leaders and their representatives look at and interact with first and foremost. Why is the PP not seeing the importance of the People’s Office in the same way the People see it? Why is there little sense of urgency in order to preserve the integrity of that office? These are legitimate questions the People are asking. The risk of unnecessary negative public perception regarding the efficiency in the administration of the Leadership Code and regarding its key players must be avoided under all circumstances.
The administration of the Leadership Code is a serious business. It forms part of the integral mechanics of government that enables the nation’s leadership and the integrity in the leadership and the leadership offices work and it aims to ensure strength to withstand forces that might make it weak. It also forms part of the core pillars under our Constitution that make our nation stand upright and move forward. Therefore the role of each key player in the administration of the Leadership Code is an onerous one.
The OC must reveal the nature of the evidence the PP has requested of it. The nation is entitled to know if the OC omitted the evidentiary material that the PP is seeking. It attracts questions regarding the efficiency or the lack of it in its administrative processes. In addition, and with respect, the Chief Ombudsman Rigo Lua and Ombudsman Phoebe Sangetari themselves being lawyers of standing and their in-house lawyers having considerable wealth of experience in this particular area of law have their professionalism placed under scrutiny. So are these relevant material already included in the OC’s “Statement of Reasons” (SoR) presented to the PP at the date of referral? In any case, are they material evidence pertinent to the allegations that have a bearing on the exercise of the PP’s discretion which he cannot do without? Or are they material evidence even if omitted the PP could do without and make his decision?
Why should these question be posed? In this writer’s experience the OC’s SoR usually contains all the relevant evidentiary material that supports its findings against the allegations put to any leader concerned. It usually contains the allegations against the leader, the leader’s response to the allegations and the OC’s analysis, findings and its conclusions. The standard of proof the relevant Constitutional Law imposes on the OC is “prima facie” evidence or evidence “on the face of it”. It must satisfy this test in order to make a referral to the PP. However it usually takes itself lower in its investigations and collation of evidence and satisfies any test higher than mere ‘prima facie” evidence prior to making a referral. In allegations that are criminal in nature it usually ensures that the evidence upon which it basis its findings and conclusions are the same standard that a leadership tribunal will apply, that is, ‘beyond a reasonable doubt’.
Applying this experience to the nature of allegations against the Prime Minister none is criminal in nature. So the questions posed earlier regarding the PP’s request are relevant. From experience this writer will not be surprised if the OC has omitted very little pertinent evidentiary material, if any, in compiling its SoR.
But the counter position must be considered. The Office of the Prime Minister is important. The PP must ensure there is evidence that warrants a decision to prosecute the matter or else he exercises his prerogative to decline to prosecute. He has a wealth of experience in prosecuting leadership matters as well as criminal prosecutions. He has reviewed the file and has made the request accordingly. The public should be reminded that the PP has absolute discretion in that regard. The PP is not subject to direction or control by any person or authority. In addition the Supreme Court enunciated in a Special Reference by the OC relating to the PP’s powers to request a leadership tribunal interpreted and applied Constitution Section 29(2) that the PP must make decision to prosecute or decline to prosecute a leader referred to him by the OC “… within a period of one to four except where special circumstances of a particular case requires a longer period” (decision dated 29.08.08).
In this instance the unique circumstances of the case requires much less than four months if the PP appreciates and extends the necessary curtesy to the importance of the People’s Office of the Prime Minister. In the meantime it seems that a serious matter of immense public interest is, with the greatest respect, not given the urgent attention it rightly deserves.
Nema Yalo is a former Council to Ombudsman Commission & former Acting Judge, Constitutional Lawyer
