SO WHEN WILL THE PUBLIC PROSECUTOR REFER THE PRIME MINISTER TO FACE THE LEADERSHIP TRIBUNAL?
By BRYAN KRAMER
Three weeks ago (6 October 2014) I posted an article on whether the Public Prosecutor (PP) would refer the Prime Minister (PM) to the Leadership Tribunal to face allegations of misconduct in office, for his part in facilitating the K3 Billion UBS Loan. The prediction was that the PM’s referral would be no later than Friday of the week that followed my post. This presumption was founded on independent intel, extensive research and informed analysis. Unfortunately that was not so and the PP instead issued a Press Statement on the Thursday of that week announcing he required "certain vital evidence" from Ombudsman Commission (OC) before he decides whether to ask the Chief Justice (CJ) to set up a Leadership Tribunal to investigate the PM.
Such action by the PP was not only extraordinary it was unprecedented. This caused me to retrace my sources and re-evaluate what led the PP to make such an uncharacteristic judgement: Firstly for taking so long to make a relatively straightforward decision; secondly inquiring into the evidence and thirdly issuing a press statement publicly requesting OC to investigate further and collect that evidence.
A further concern was that I received information that the PP had changed his view as to whether the PM was guilty of misconduct in office relying on the advice from a legal firm involved in the structure of the UBS Loan.
So what or who changed the PP's mind causing him to act outside standard practice and procedure? Insofar as to:
(1) Taking considerable time to decide whether or not to prosecute the case considering the public interest and the fact that it affected the highest office in our country;
(2) Making further inquiries into the evidence after OC has established that there is a prima facie case;
(3) Issuing a press statement publically requesting OC to further investigate the matter to obtain critical vital evidence; and
(4) Allegedly seeking advice from a legal firm that has a conflict of interest in the matter?
Question 1 - Why is it taking so long??
The decision by PP on whether to refer a person subject to the leadership code is actually quite straightforward. Unlike the OC that is burdened with the functions of investigating, conducting interviews and collecting evidence to establish a prima facie case (sufficient evidence) that a person is guilty of alleged misconduct in office, the PP needs only review the findings of OC's investigation to confirm the same opinion and decide whether or not to prosecute the matter. Taking into account all the relevant evidence is documented, summarised and provided in the file for his convenience.
The OC took just over three months to conduct their investigations and establish there was a case for PM O’Neill to answer to. They then gave the PM a month and a half to respond to the allegations before they finally referred him to PP on 12th August 2014.
PP is not required to inquire or conduct any further investigation; in fact he is prohibited from doing so. His only function is to review the file provided by the OC and decide whether or not there is sufficient evidence to prosecute the case. After all the PP’s role is to prosecute!
This decision by PP is actually not that complicated a competent experienced prosecutor need only take week to review the file and evidence to make an informed decision taking into account OC's findings are always thorough and diligent.
If PP decides to prosecute, then he must write to Chief Justice (CJ) requesting him to appoint a leadership tribunal to hear the case against PM. The CJ is required by law to then appoint an appropriate leadership tribunal.
If PP decides not to prosecute, because he is concerned the prosecution will fail then he need only refer it back to OC. The OC may then decide to exercise its powers under Section 29(2) of Constitution to prosecute the case itself. The decision by PP not to prosecute would be unprecedented and of course be an embarrassment should the OC be successful in its prosecution of the matter.
In this case the PP announced in his press statement on 10th October 2014 that he has fully considered the material referred to him by the OC against PM. So the only issue left is the decision whether or not to prosecute.
He instead requested the OC to collect further vital evidence. This decision is concerning taking into account the PP does not have the powers to request the OC to carry out further investigations and his actions may be deemed ultra-vires (latin acting beyond one's powers).
In his own press statement he said "I am of the view that there are certain vital evidence that are required for me to make an informed opinion on whether or not to refer the Prime Minister to the appropriate tribunal to conduct enquiries into allegations of misconduct in office."
It is clear the PP is not convinced after fully considering the material referred to him by the OC that the PM is guilty of misconduct in office for facilitating the K3 Billion overseas UBS loan. His reason being that there is no serious culpability or act of corruption on the part of PM nor has he directly benefited from the transaction.
Those who support the PM argue the referral is absurd, PM is the CEO of the Country and the decision to approve the UBS loan was not his alone but that of his full cabinet or NEC. The loan was for the benefit of the Country and not for any individual. They argue the PM was merely acting within his powers as Minister of Treasury and Prime Minister recommending to NEC to approve the loan, the decision was ultimately theirs. If he is guilty then in principle so is the whole of NEC.
In the context of criminal prosecutions the PP's view that there is no evidence of corruption or criminal culpability (guilt) would be correct. In such proceedings a criminal offence must be proven to the criminal standard of proof which is beyond reasonable doubt, where strict legal forms and technicalities of the evidence apply. This high standard is to ensure innocent persons unjustly accused of criminal offences are not wrongfully imprisoned.
However a leadership prosecution does not have the same scope or focus. It is only concerned if a person is guilty of conduct that is both unethical and immoral and if such actions demean or spoil the high office he holds. In other words the purpose of the leadership code is to protect the peoples office from abuse by the person who holds it. If he is found to be guilty of abusing that office he should be dismissed from it.
So the key issue is what constitutes Misconduct in Office in the context of law??
In 2008 a five-man bench of the Supreme Court heard constitutional reference on Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal. In its ruling the Supreme Court provided its interpretation of what constitutes misconduct in office.
"The word misconduct in ordinary language has the same meaning as misbehaviour. In particular, misbehaviour refers to conduct which may be regarded as wrong and unacceptable and offends against accepted standards of social, moral and ethical behaviour which may be established by practice or convention, or by a Code of Conduct."
"Such conduct need not involve an element of corruption or breach of any law as in the case of misconduct in office. Acts of misbehaviour are many and varied. They would include abusive behaviour and acts of insubordination, gross negligence or carelessness."
The leadership tribunal that presided over the Grand Chief Sir Michael Somare's referral back in March 2011 found him guilty of misconduct in office for failing to lodge his annual reports that was required by law, Section 4 of Leadership Code. The tribunal was required to determine the appropriate penalty whether or not to dismiss him from office dependent on the seriousness of the offence of misconduct.
The tribunal was made up of three highly experienced overseas high court judges from Australia, New Zealand and United Kingdom. In their judgement they canvassed the issue of "serious culpability" or serious guilt of misconduct.
They explained that misconduct in office is defined in section 27 of the Constitution and the definition mostly prohibits conduct which is corrupt, lacking in integrity or places a leader in a position of conflict between duty and interest.
They also noted Section 28 (1A) of the Constitution that also recognizes that there will be situations in which a person who has been found guilty of misconduct in office will not be seriously culpable. In other words, a person found guilty of misconduct in office does not necessarily establish serious guilt on the part of the person found guilty.
Other factors to be considered include the circumstances surrounding the offences and the connection of the Leader with them. Culpability is to be judged by considering the circumstances of the offence and the offender. The office held by an offender may be relevant on penalty in a normal sentencing exercise. The higher the office - the higher the penalty.
In Somare's case although he was found guilty of misconduct in office for failing to file his annual returns there has been no suggestion of personal gain, abuse of position or undermining of public confidence in what was alleged and established before the Tribunal. In short, there is no suggestion of dishonest intent, unethical or immoral behaviour.
So let’s review this interpretation of misconduct in the context of the allegations against the current Prime Minister Peter O'Neill.
The central allegation of misconduct in office against PM relates to his intentional failure to comply with the administrative and financial processes prescribed by law for the approval of K3 Billion overseas loan from Union Bank of Switzerland (UBS). In other words the OC suggests he abused his office by bulldozing his own policy submission to approve the loan through NEC without first consulting and obtaining approval from appropriate state agencies required by law.
These allegations also extend to the following related misconduct offences:
(1) Intentionally misleading the public that the decision to sack the former Minister of Treasury Don Polye was in the best interest of the country because he was causing instability in the Government. When in fact the real reason was because Polye refused to sign the approval for the loan raising legitimate concerns whether proper legal procedures were complied with. The PM then appointed himself the Treasury Minister to ensure the loan was approved.
(2) Intentionally misleading the public on an EMTV interview that he obtained advice and clearance from the Bank of PNG and relevant state agencies to obtain the K3 Billion loan from UBS.
(3) Lastly that the loan is in the interest of a private company rather than that of the State of PNG. His close association with persons from the private company may constitute a conflict of interest.
So the simple issue at this point is whether the PM abused his office acting with dishonest intent in facilitating his own submission to obtain K3 Billion Loan from UBS to purchase 10% equity in Oil Search. To achieve his own objective sacking the former Ministry of Treasury and intentionally misleading the public of the real reason, and further claiming he had obtained proper approvals from relevant state agencies thus complying with legal and financial processes.
This decision may also have offended against Section 13 of Leadership Code which states a person whom the leadership code applies who intentionally applies any money forming part of any fund under the control of PNG to any purpose to which it cannot be lawfully applied or intentionally agrees to any such application of any such monies is guilty of misconduct in office.
In this case the PM failed to follow the proper legal process thus he unlawfully applied the funds of K3 Billion UBS Loan.
On the face of the record a reasonable person may conclude without reasonable doubt the alleged conduct of PM in facilitating the K3 Billion UBS loan and circumstances surrounding it constitute misconduct in office. His alleged conduct of dishonest intent was both unethical and immoral also constitutes serious culpability.
The issues are quite straightforward so the question then is why is PP acting outside his powers requesting vital evidence from the OC and why has it taken two months for him to make this request? Why is it taking almost three months for PP to make a decision whether or not to prosecute after he has publicly confirmed considering all the material in the file.
The most concerning issue raised in respect of this matter is the allegation that PP sought independent legal advice from a legal firm that has direct interest in providing advice to the PM to obtain the UBS Loan.
The firm’s legal opinion is that PM did not breach any legal requirements to obtain the loan. If this allegation is true then the question is, who recommended the firm to PP and why has he adopted the practice of seeking legal advice from a private firm that does not have any legal experience or background in prosecuting leadership cases. It gives rise to the critical question is PP being pressured not to prosecute the case against the PM.
Taking into account the Leadership Tribunal that presided over Somare's case also expressed the view "Mr. Kaluwin for the Public Prosecutor initially submitted that there was no serious culpability on the part of the Leader based upon what had occurred in other cases. Later, "under some pressure", he appeared to change his position, and submitted that the Leader's special position as Prime Minister made all the difference and tipped the balance in favour of serious culpability."
Ironically the PP has taken the reverse position in this case where it was alleged he initially submitted there was serious culpability and now appears to have change his position.
In conclusion it is also important to note that the PP is a constitutional office holder and also subject to the leadership code. Given his action or inaction in this case may give rise to OC to make inquires or investigate whether his own possible conduct breaches Section 27(1)(c) insofar as to allow his public or official integrity, or his personal integrity, to be called into question.
In the end I have no doubt the PP will refer the PM to the leadership tribunal and I would hope such a decision should be done within a three month period.
Bear in mind the ultimate decision of whether PM is guilty of misconduct in office is not for the PP to make but that of the Leadership Tribunal.
What is also more than certain is that once the PP refers the PM to the Leadership Tribunal the PM will file urgent court proceedings to challenge, frustrate, delay or stay the process of his prosecution. I will cover this issue in my next article.
Three weeks ago (6 October 2014) I posted an article on whether the Public Prosecutor (PP) would refer the Prime Minister (PM) to the Leadership Tribunal to face allegations of misconduct in office, for his part in facilitating the K3 Billion UBS Loan. The prediction was that the PM’s referral would be no later than Friday of the week that followed my post. This presumption was founded on independent intel, extensive research and informed analysis. Unfortunately that was not so and the PP instead issued a Press Statement on the Thursday of that week announcing he required "certain vital evidence" from Ombudsman Commission (OC) before he decides whether to ask the Chief Justice (CJ) to set up a Leadership Tribunal to investigate the PM.
Such action by the PP was not only extraordinary it was unprecedented. This caused me to retrace my sources and re-evaluate what led the PP to make such an uncharacteristic judgement: Firstly for taking so long to make a relatively straightforward decision; secondly inquiring into the evidence and thirdly issuing a press statement publicly requesting OC to investigate further and collect that evidence.
A further concern was that I received information that the PP had changed his view as to whether the PM was guilty of misconduct in office relying on the advice from a legal firm involved in the structure of the UBS Loan.
So what or who changed the PP's mind causing him to act outside standard practice and procedure? Insofar as to:
(1) Taking considerable time to decide whether or not to prosecute the case considering the public interest and the fact that it affected the highest office in our country;
(2) Making further inquiries into the evidence after OC has established that there is a prima facie case;
(3) Issuing a press statement publically requesting OC to further investigate the matter to obtain critical vital evidence; and
(4) Allegedly seeking advice from a legal firm that has a conflict of interest in the matter?
Question 1 - Why is it taking so long??
The decision by PP on whether to refer a person subject to the leadership code is actually quite straightforward. Unlike the OC that is burdened with the functions of investigating, conducting interviews and collecting evidence to establish a prima facie case (sufficient evidence) that a person is guilty of alleged misconduct in office, the PP needs only review the findings of OC's investigation to confirm the same opinion and decide whether or not to prosecute the matter. Taking into account all the relevant evidence is documented, summarised and provided in the file for his convenience.
The OC took just over three months to conduct their investigations and establish there was a case for PM O’Neill to answer to. They then gave the PM a month and a half to respond to the allegations before they finally referred him to PP on 12th August 2014.
PP is not required to inquire or conduct any further investigation; in fact he is prohibited from doing so. His only function is to review the file provided by the OC and decide whether or not there is sufficient evidence to prosecute the case. After all the PP’s role is to prosecute!
This decision by PP is actually not that complicated a competent experienced prosecutor need only take week to review the file and evidence to make an informed decision taking into account OC's findings are always thorough and diligent.
If PP decides to prosecute, then he must write to Chief Justice (CJ) requesting him to appoint a leadership tribunal to hear the case against PM. The CJ is required by law to then appoint an appropriate leadership tribunal.
If PP decides not to prosecute, because he is concerned the prosecution will fail then he need only refer it back to OC. The OC may then decide to exercise its powers under Section 29(2) of Constitution to prosecute the case itself. The decision by PP not to prosecute would be unprecedented and of course be an embarrassment should the OC be successful in its prosecution of the matter.
In this case the PP announced in his press statement on 10th October 2014 that he has fully considered the material referred to him by the OC against PM. So the only issue left is the decision whether or not to prosecute.
He instead requested the OC to collect further vital evidence. This decision is concerning taking into account the PP does not have the powers to request the OC to carry out further investigations and his actions may be deemed ultra-vires (latin acting beyond one's powers).
In his own press statement he said "I am of the view that there are certain vital evidence that are required for me to make an informed opinion on whether or not to refer the Prime Minister to the appropriate tribunal to conduct enquiries into allegations of misconduct in office."
It is clear the PP is not convinced after fully considering the material referred to him by the OC that the PM is guilty of misconduct in office for facilitating the K3 Billion overseas UBS loan. His reason being that there is no serious culpability or act of corruption on the part of PM nor has he directly benefited from the transaction.
Those who support the PM argue the referral is absurd, PM is the CEO of the Country and the decision to approve the UBS loan was not his alone but that of his full cabinet or NEC. The loan was for the benefit of the Country and not for any individual. They argue the PM was merely acting within his powers as Minister of Treasury and Prime Minister recommending to NEC to approve the loan, the decision was ultimately theirs. If he is guilty then in principle so is the whole of NEC.
In the context of criminal prosecutions the PP's view that there is no evidence of corruption or criminal culpability (guilt) would be correct. In such proceedings a criminal offence must be proven to the criminal standard of proof which is beyond reasonable doubt, where strict legal forms and technicalities of the evidence apply. This high standard is to ensure innocent persons unjustly accused of criminal offences are not wrongfully imprisoned.
However a leadership prosecution does not have the same scope or focus. It is only concerned if a person is guilty of conduct that is both unethical and immoral and if such actions demean or spoil the high office he holds. In other words the purpose of the leadership code is to protect the peoples office from abuse by the person who holds it. If he is found to be guilty of abusing that office he should be dismissed from it.
So the key issue is what constitutes Misconduct in Office in the context of law??
In 2008 a five-man bench of the Supreme Court heard constitutional reference on Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal. In its ruling the Supreme Court provided its interpretation of what constitutes misconduct in office.
"The word misconduct in ordinary language has the same meaning as misbehaviour. In particular, misbehaviour refers to conduct which may be regarded as wrong and unacceptable and offends against accepted standards of social, moral and ethical behaviour which may be established by practice or convention, or by a Code of Conduct."
"Such conduct need not involve an element of corruption or breach of any law as in the case of misconduct in office. Acts of misbehaviour are many and varied. They would include abusive behaviour and acts of insubordination, gross negligence or carelessness."
The leadership tribunal that presided over the Grand Chief Sir Michael Somare's referral back in March 2011 found him guilty of misconduct in office for failing to lodge his annual reports that was required by law, Section 4 of Leadership Code. The tribunal was required to determine the appropriate penalty whether or not to dismiss him from office dependent on the seriousness of the offence of misconduct.
The tribunal was made up of three highly experienced overseas high court judges from Australia, New Zealand and United Kingdom. In their judgement they canvassed the issue of "serious culpability" or serious guilt of misconduct.
They explained that misconduct in office is defined in section 27 of the Constitution and the definition mostly prohibits conduct which is corrupt, lacking in integrity or places a leader in a position of conflict between duty and interest.
They also noted Section 28 (1A) of the Constitution that also recognizes that there will be situations in which a person who has been found guilty of misconduct in office will not be seriously culpable. In other words, a person found guilty of misconduct in office does not necessarily establish serious guilt on the part of the person found guilty.
Other factors to be considered include the circumstances surrounding the offences and the connection of the Leader with them. Culpability is to be judged by considering the circumstances of the offence and the offender. The office held by an offender may be relevant on penalty in a normal sentencing exercise. The higher the office - the higher the penalty.
In Somare's case although he was found guilty of misconduct in office for failing to file his annual returns there has been no suggestion of personal gain, abuse of position or undermining of public confidence in what was alleged and established before the Tribunal. In short, there is no suggestion of dishonest intent, unethical or immoral behaviour.
So let’s review this interpretation of misconduct in the context of the allegations against the current Prime Minister Peter O'Neill.
The central allegation of misconduct in office against PM relates to his intentional failure to comply with the administrative and financial processes prescribed by law for the approval of K3 Billion overseas loan from Union Bank of Switzerland (UBS). In other words the OC suggests he abused his office by bulldozing his own policy submission to approve the loan through NEC without first consulting and obtaining approval from appropriate state agencies required by law.
These allegations also extend to the following related misconduct offences:
(1) Intentionally misleading the public that the decision to sack the former Minister of Treasury Don Polye was in the best interest of the country because he was causing instability in the Government. When in fact the real reason was because Polye refused to sign the approval for the loan raising legitimate concerns whether proper legal procedures were complied with. The PM then appointed himself the Treasury Minister to ensure the loan was approved.
(2) Intentionally misleading the public on an EMTV interview that he obtained advice and clearance from the Bank of PNG and relevant state agencies to obtain the K3 Billion loan from UBS.
(3) Lastly that the loan is in the interest of a private company rather than that of the State of PNG. His close association with persons from the private company may constitute a conflict of interest.
So the simple issue at this point is whether the PM abused his office acting with dishonest intent in facilitating his own submission to obtain K3 Billion Loan from UBS to purchase 10% equity in Oil Search. To achieve his own objective sacking the former Ministry of Treasury and intentionally misleading the public of the real reason, and further claiming he had obtained proper approvals from relevant state agencies thus complying with legal and financial processes.
This decision may also have offended against Section 13 of Leadership Code which states a person whom the leadership code applies who intentionally applies any money forming part of any fund under the control of PNG to any purpose to which it cannot be lawfully applied or intentionally agrees to any such application of any such monies is guilty of misconduct in office.
In this case the PM failed to follow the proper legal process thus he unlawfully applied the funds of K3 Billion UBS Loan.
On the face of the record a reasonable person may conclude without reasonable doubt the alleged conduct of PM in facilitating the K3 Billion UBS loan and circumstances surrounding it constitute misconduct in office. His alleged conduct of dishonest intent was both unethical and immoral also constitutes serious culpability.
The issues are quite straightforward so the question then is why is PP acting outside his powers requesting vital evidence from the OC and why has it taken two months for him to make this request? Why is it taking almost three months for PP to make a decision whether or not to prosecute after he has publicly confirmed considering all the material in the file.
The most concerning issue raised in respect of this matter is the allegation that PP sought independent legal advice from a legal firm that has direct interest in providing advice to the PM to obtain the UBS Loan.
The firm’s legal opinion is that PM did not breach any legal requirements to obtain the loan. If this allegation is true then the question is, who recommended the firm to PP and why has he adopted the practice of seeking legal advice from a private firm that does not have any legal experience or background in prosecuting leadership cases. It gives rise to the critical question is PP being pressured not to prosecute the case against the PM.
Taking into account the Leadership Tribunal that presided over Somare's case also expressed the view "Mr. Kaluwin for the Public Prosecutor initially submitted that there was no serious culpability on the part of the Leader based upon what had occurred in other cases. Later, "under some pressure", he appeared to change his position, and submitted that the Leader's special position as Prime Minister made all the difference and tipped the balance in favour of serious culpability."
Ironically the PP has taken the reverse position in this case where it was alleged he initially submitted there was serious culpability and now appears to have change his position.
In conclusion it is also important to note that the PP is a constitutional office holder and also subject to the leadership code. Given his action or inaction in this case may give rise to OC to make inquires or investigate whether his own possible conduct breaches Section 27(1)(c) insofar as to allow his public or official integrity, or his personal integrity, to be called into question.
In the end I have no doubt the PP will refer the PM to the leadership tribunal and I would hope such a decision should be done within a three month period.
Bear in mind the ultimate decision of whether PM is guilty of misconduct in office is not for the PP to make but that of the Leadership Tribunal.
What is also more than certain is that once the PP refers the PM to the Leadership Tribunal the PM will file urgent court proceedings to challenge, frustrate, delay or stay the process of his prosecution. I will cover this issue in my next article.
