SO DOES THE REFERRAL OF PRIME MINISTER MEAN HE IS AUTOMATICALLY SUSPENDED??

By BRYAN KRAMER

Short answer is NO.

So why? The Supreme Court in the case Grand Chief Somare vs Chief Ombudsman Commission ruled a leader who is referred to a leadership tribunal is automatically suspended from duty from the date of his referral. In other words the exact time and date the Public Prosecutor writes to the Chief Justice requesting him to appoint the tribunal. This decision is based on Section 28(1) of Constitution
"Where a matter has been referred to a tribunal the person alleged to have committed misconduct in office is suspended from duty."

However in the cases of the Governor General, Chief Justice and Prime Minister they may only be suspended by decision of the Leadership Tribunal.

This is because of the importance of the office they occupy. The Constitution Section 94 that relates to the GG, Section 182 relates to CJ and Section 142(6) the Prime Minister states that they "may be" suspended pending an investigation into a question of misconduct in office. The word "maybe" in law makes it a discretionary power so a decision has to be made and hence why it cannot be automatic.
So in this case the Leadership Tribunal once appointed and announced by the Chief Justice in the coming weeks will convene (meet) and the first order of business will be to accept the charges of misconduct and Ombudsman Commission's statement of reasons presented to them by the Public Prosecutor. The second order of business will be whether or not to suspend the Prime Minister while they make enquires or hear the evidence against him.

In the Grand Chief Somare's case in 2011 the tribunal made the decision not to suspend him on the grounds the allegations of misconduct were not serious involving corruption or abuse of office.
The decision whether or not to suspend Peter O'Neill will be determined by whether the Tribunal are of the opinion the allegations charged against him are described as serious offences of misconduct in office and whether there is serious culpability (guilt). In my opinion there is, because they relate to abuse of office raising issues of conflict of duty and interest as well as lacking in integrity.
However rather than taking the most noble and respectable approach of stepping aside and allowing the process to clear his name Peter O'Neill said he had no intention to step aside unless asked to. He said he would follow the precedent set by Somare.

What Peter O'Neill fails to realise is Somare actually stepped aside when he was referred by the Public Prosecutor to face the Leader Tribunal on 13th December 2010. He then made an application before the tribunal not to be suspended taking into account the allegations of misconduct were not serious but mere administrative offences. So if O'neill claims he will follow Somare then he should in fact step aside or take leave and make an application to the Tribunal whether or not he should be suspended.

Every other leader implicated in any serious misconduct allegations must immediately vacate that public office and allow investigations to take place so as to clear his name without tarnishing the good name and image of the leadership office that he occupies.
The next article will cover the process of the tribunal and likely efforts of the Prime Minister to delay or stay the Leadership Tribunal from hearing the allegations of misconduct against him.

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