PM LIKELY TO BE DISMISSED FROM OFFICE - LEGAL EXPERT
"Section 28 (1) of the Organic Law on Duties and Responsibilities of Leadership is that the person alleged to have committed misconduct in office is suspended from duty. Suspension is automatic. The so called precedent in Somare's case was wrong in law and not a proper precedent. THE ACTUAL WORDINGS OF S 27 (1) IS: Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty. So the normal and proper practice is that when the charges are presented to the Tribunal, the suspension automatically takes effect. The Somare precedent was wrong in law."
The decision to suspend the then Prime Minister & Regional member for East Sepik Province Sir Michael Somare for 14 days without pay starting from April 4th 2011 was made by a three-member Leadership Tribunal on March 24th 2011. Three foreign Judges (from Australia, New Zealand & the UK) Roger Gyles, Sir Bruce Roberts, and Sir Robin Auld who were brought in especially from overseas to preside over the matter reportedly found Sir Michael Somare guilty on March 21st 2011 of 5 counts of filing late statements (annual returns) and guilty of eight counts of filing incomplete statements. On three counts of allegedly failing to lodge an annual return at all in the 1990’s, Sir Michael Somare was found not guilty. Sir Robin Auld wanted Sir Michael Somare dismissed from office, however Tribunal chairman Roger Gyles and Sir Bruce Roberts ruled in favor of suspension, when suspension should have occurred automatically in the first place as per the provision under the Organic Law on Duties and Responsibilities of Leadership.
Next up, following his father was Arthur Somare, the then member for Angoram and Public Enterprises Minister, who was suspended from office on July 4, 2011 (the date the inquiry started) by a Leadership Tribunal hearing 11 allegations of official misconduct against him after initially being referred to the Public Prosecutor in 2006. Arthur Somare's suspension by a three-member Tribunal chaired by Justice Salatiel Lenalia was said to have been in accordance with section 27(2) of the Organic Law on Duties and Responsibilities of Leadership. The Tribunal also reportedly "consolidated the provision of section 28 of the Organic Law that a leader, once referred to a tribunal, is automatically suspended from office". After losing his seat in the 2012 National General Elections Arthur Somare, on July 24th, 2012, was found not guilty of failing to comply with a direction by the Ombudsman Commission under Section 27 (4) of the Constitution and not guilty of misappropriating his District Support Grant. Two days later on July 26th Arthur Somare, who pleaded guilty to three charges of failing to submit annual statements over a period of three years (1998 -2001) to the Ombudsman Commission, was fined K1500 by the Tribunal.
The case against Aitape-Lumi MP & current Treasurer Patrick Pruaitch, who was also initially referred to the Public Prosecutor in 2006 over several charges such as allegedly misappropriating district support grant funds and double-dipping is still pending - presumably because the stay he obtained in 2010 from the Supreme Court has not yet been lifted. Pruaitch was suspended as Treasurer in 2010 but then in March 2011 was appointed Minister of State assisting Prime Minister Somare. Deputy Opposition Leader & Bulolo MP Sam Basil said at the time “This is in direct contempt of the orders of the Supreme Court in the case of Pruaitch v Manek [2010] PGSC 7;SCl052 (31 May 2010) where theSupreme Court declared that Pruaitch was automatically suspended when the charges were served on the Tribunal. The highest Court of the land constituting Kirriwom J, Gavara-Nanu and Davani JJ declared that Pruaitch was suspended forthwith.”
Although North Fly MP, Boka Kondra and Manus Open MP, Ronny Knight were also recently referred by the Ombudsman Commission to the Public Prosecutor, no public announcement on their impending prosecution before a Tribunal has been made yet by the Public Prosecutor, Pondros Kaluwin; and it therefore appears likely that a Leadership Tribunal will be convened firstly to hear the charges against Prime Minister Peter O'Neill in the new year after the new legal year begins, as the courts are due soon to go into recess. A primary charge levelled against Prime Minister Peter O'Neill by Opposition Leader Belden Namah, which is expected to go before the Leadership Tribunal to deliberate upon, is that the Prime Minister breached Section 209 of the Constitution in procuring the K3 BILLION Kina UBS Loan, which the Opposition as well as the public has strongly opposed.
In April this year, the Opposition Leader Hon. Belden Namah who exposed the loan during a press conference to the Nation (following which Don Polye perhaps decided there was no need to remain silent any longer about it) described the loan as "absolutely unnecessary, risky and highly questionable" and also alleged "the K3 Billion Loan has been executed and obtained by the Prime Minister in violation of the express letter of the National Constitution under section 209 and in breach of seven other Laws of Papua New Guinea".
“Section 209 (1) is in the following terms: Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament,” the Opposition Leader said; and also pointed out the following:
“The Act of Parliament referred to here is the Loans (Overseas Borrowings) Act. It is very clear, that the raising of finance, and in particular the raising of loans, must have the prior authorization or approval of the National Parliament. The act of authorization and control by Parliament is performed through an appropriation law, which comes in the form of an Annual Budget or a Supplementary Budget. The 2014 Budget Appropriation Act does not have any provision for a K3 Billion loan. No Supplementary Budget providing for the K3 Billion Loan has been approved by Parliament. The Executive Government has powers only to initiate loans, under section 210 for budgetary purposes. It has no other power(s) under the Constitution to obtain loans outside of the budgetary process. The Constitution has therefore been violated in two respects; first there was no budgetary authorization given by Parliament, and second, the PM or the NEC has no constitutional authority to obtain a loan outside of the budgetary process."
The Opposition Leader alleged that the loan is in violation of: (i) The Loans (Overseas Borrowings) Act, (ii) The Fiscal Responsibility Act, (iii) The 2014 Budget Appropriation Act, (iv) The Public Finance Management Act, (v) The Organic Law on Sovereign Wealth Fund, (vi) The IPBC Act, (vii) The Attorney General Act.
“Papua New Guineans must take note of the following facts,” the Opposition Leader stated:
1. This is the first time in Papua New Guineas history that a loan of this magnitude has been obtained for a purpose other than for funding development. This will result in greater inflation and depreciation of the value of the Kina.
2. The loan will go down in the history books of Papua New Guinea as a loan that has been negotiated with lightning speed. This calls for a major and thorough investigation into how this deal was struck and the parties involved, including Oil Search Ltd, Inter Oil Ltd and UBS International.
3. The total debt of this country has now more than doubled.
4. The return on this massive loan which now exposes Papua New Guineans to all manner of risk is very minimal and will take years to recover. It is not worth the pain that the people will experience for years to come.
The Opposition demands answers to the following questions from the Prime Minister and Oil Search to answer:
1. Why wasn’t there a public disclosure of the issuance of 10.1 percent Oil Search share prospectus?
2. Why weren’t other shareholders given the opportunity to buy shares as Oil Search is a public company?
3. How did Oil Search make available 10.1 percent of the shares in the company; is it through a dilution of all existing shares or did somebody off-load their shares for Government to purchase?
4. As the State has got no call option remaining in Oil Search after it originally took up 18 percent shares which is now owned by the Arabs, why was the State given a preferential treatment and why was the sale negotiated and transacted in complete secrecy?
5. Why was this transaction concluded at lightning speed and without the approval of the Securities Commission?
6. Can the Bank of Papua New Guinea be an independent assessor when one of its Board Members in Bart Philemon, is also a Director on the Oil Search Board of Directors?”
In view of the very serious allegations raised by the Opposition and filed against the Prime Minister with the Ombudsman Commission which has led to the referral of the Prime Minister, it is our view that there is a very strong possibility that the Prime Minister may create history, to the dismay of his supporters & Ialibu-Pangia voters, by becoming the first incumbent Prime Minister to be dismissed from public office after first being suspended in accordance with the Organic Law on Duties and Responsibilities of Leadership although it may be argued that Section Section 28 (1) of the Organic Law on Duties and Responsibilities of Leadership is applicable only to ordinary Members of Parliament and not to the Prime Minister.
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