POST ANALYSIS: NATIONAL COURT STAYS LEADERSHIP TRIBUNAL
By Bryan Kramer
On 8th January 2015 the National Court (NC) Judge Justice Cannings granted interim injunction (temporary stop order) preventing the Public Prosecutor (PP) and Leadership Tribunal (LT) from convening on 26th January 2015 to inquire into allegations of misconduct against the Prime Minister.
The request to stay (stop) the LT was made by the PM's lawyers on the grounds that PP exceeded his Constitutional powers in the manner in which he referred the PM to the LT. They argued the LT should be stayed until the Supreme Court (SC) first determines (answers) the Constitutional questions whether PP exceed his Constitutional powers in the manner or procedure in which he referred the PM to face the LT.
The Court upheld the PM's request to stay the LT and it remains in effect until the Supreme Court (SC) first interprets a number of Constitutional questions to assist the National Court to determine whether the PM is correct or not.
I'm sure many are asking the questions WHY? Why would the Judiciary agree to such a request knowing it's the Modus Operandi (typical practice) of our PM to avoid, frustrate any and all proceedings that would bring him to face the law like every other person. There are many that have expressed their disappointment to the Courts decision and now questioning it's impartiality and integrity. With limited understanding of the judicial process and details surrounding the decision one can't entirely blame them.
However having read Justice Cunnings ruling in detail the decision has some merit in the special circumstances of this case. Like me you will be both shocked and disturbed to understand why?
Before discussing the central issues lets first review background facts.
In March 2014 Ombudsman Commission (OC) investigated the Prime Minister (PM) for his part in facilitating the approval of the K3 Billion overseas loan from Union Bank of Switzerland (UBS) on behalf of the State of Papua New Guinea (7 million people).
Following the findings of their investigations the OC established there was sufficient evidence to believe the PM was guilty of three charges of misconduct in office.
1) He failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of the K3 Billion loan from UBS.
2) Having made media release on the sacking of Don Polye as the Minister of Treasury by saying that Mr. Polye caused instability in the Government, when the actual reason was to do with Mr. Polye's refusal the UBS Loan Deal which the PM had unilaterally approved on 6th March 2014.
3) He made misleading statement on EMTV that he had obtained advice from the State Agencies including Bank of PNG on UBS Loan was contrary to evidence the OC received.
In June 2014 OC wrote to the PM giving him 21 days to respond to the allegations against him. This practice is referred to as the right to be heard. It ensures natural justice where the accused in this case the PM is given the right to be notified of the allegations of misconduct against him and given the opportunity to respond to them (either in writing or by interview). This procedure is a requirement by law and OC must comply with it before it can refer a person to the PP to be prosecuted before a LT.
On 11th August 2014 OC after giving the PM the right to respond to the allegations and still being satisfied that there is a prima facie case (sufficient evidence) that PM has been guilty of misconduct in office the OC referred the matter to the PP to decide whether or not prosecute it. The OC handed over the file containing statement of reasons and the evidence to support the allegations. PP must then review the file to confirm the OC's findings and decide whether or not to prosecute the matter before the LT. This procedure is also required by Law and stipulated in Section 20(4) of the Leadership Code and Section 29(1) of Constitution.
Section 20(4) of Leadership code is in the following terms:
If, after an investigation, the Ombudsman Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."
Having received the file from the OC the PP's only responsibility is to then decide whether he agrees that there is sufficient evidence to prosecute the PM. If he does then he is required to refer the PM's matter or case to the Leadership Tribunal.
Section 27(2) of Leadership Code states if the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the OC to the Leadership Tribunal.
PP must make this decision "within a reasonable time" after receiving the file from the OC. Section 29(2) of Constitution states that if he fails to prosecute the matter within a reasonable period, the Commission may prosecute it instead.
In 2008 Supreme Court interpreted Public Prosecutor's constitutional powers to request the Chief Justice to Appoint a Leadership Tribunal. The Court ruled that a reasonable time would be one to four months.
Section 27 of Leadership Code also states if the PP fails to act on the OC's referral then the OC may refer the matter to the LT.
So if the OC were to refer a person to the PP to prosecute, the PP has one to four months to make the decision whether or not to prosecute them. If he takes more than four months to make a decision or refuses to prosecute then the OC can invoke it's powers under Section 27 of Leadership Code or Section 29(2) of Constitution and prosecute the matter itself.
On 14th November 2014 (after 3 months) the PP finally made the decision to prosecute the PM by referring his matter to face the LT. The PP as required by law formally wrote to the Chief Justice (CJ) to notify him of his decision to prosecute the PM before the LT and requested the CJ to appoint the members of the Tribunal. He also wrote to the PM and notify him he has made the decision to prosecute him before the LT.
The role of the LT is to convene and conduct hearings to inquire into the allegations of misconduct in office by PM and confirm whether or not he is guilty. If found guilty they will then decide whether or not the misconduct offences are serious enough to justify removing him from office. Where the misconduct is not serious then the LT may impose a fine or short suspension as was the case in Grand Chief Somare's matter.
After formally referring the PM to face the LT the PP's office issued a press statement informing the public of his decision. The press statement was in the following terms:
"The request arises out of the referral to the Public Prosecutor by the OC in relation to allegations that as the Member of Ialibu Pangia Open and Prime Minister of Papua New Guinea the leader failed to comply with the administrative and financial processes including the normal overseas borrowing process in approval of K3 Billion loan from the Union Bank of Switzerland (Australian Branch) to purchase share in Oil Search Limited and not in the interest of the Independent State of Papua New Guinea."
Kaluwin said he perused (examined) the file and found that there is sufficient and credible evidence to refer the matter to the Leadership Tribunal to hear and inquire into the allegations.
On 27th November the Chief Justice in accordance with Section 27(7) of Leadership Code appointed the Leadership Tribunal, announcing the date of tribunal was to convene was on 26th January 2015, 9:30am Court Room 1 National Court Waigani.
So the whole process seems straight forward so why is the PM challenging his referral to LT claiming the PP has exceeded his Constitutional powers.
On 20th November 2014 only after five days earlier claiming he welcomed the opportunity to clear his name before LT the PM rushed to Court and filed proceedings challenging the PP decision to refer him.
PM is seeking declarations (orders) from the Court that the PP is not entitled to refer "that matter" or bring "such proceedings" against him before the LT. The LT is also not entitled to inquire into and determine "that matter" and a permanent stay against the Tribunal's proceedings in "that matter".
In other words the PM is claiming that the PP failed to follow the proper legal procedures when he referred him to the LT therefore "that referral" by the PP is unconstitutional. The LT was appointed to inquire into the matter referred to it by the PP which the PM's believes was improper therefore the LT was improperly appointed because of the PP failed to follow the proper process.
On 6th January 2014 the PM's lawyers filed application in the same case seeking to refer Constitutional questions to the Supreme Court by invoking Section 18(2) of Constitution and secondly sought an interim injunction preventing the PP from proceeding with PM's referral to LT and to stay the LT from convening on 26th January 2015 until the Supreme Court first resolves the Constitutional issues raised by the PM.
At the hearing of the PM's application the Private Lawyer representing the PP (Kubak & Kubak Solicitors and Barristers) argued against the interim injunction on the grounds it was an abuse of process, as the question of whether any constitutional question should be referred to the Supreme Court was properly a matter for the Tribunal which is the proper forum in which the question of referral to the Supreme Court of any constitutional questions should be raised. The PM's application for Constitutional questions and an injunction to stay the LT proceeding was simply an attempt to prevent the tribunal from convening on 26th January 2014.
So what are these Constitutional Issues raised by the PM claiming the PP is not entitled to refer or prosecute the PM on "that matter" referred to the LT.
1) Whether the PP exceeded his powers when he sought further evidence from the OC before considering whether "the matter or case" should be referred to the LT.
2) Whether the PP exceeded his powers when he amended the allegations or charges referred to him by the OC.
So how did these questions arise?
If you recall on 12th August 2014 OC referred the matter or case to the PP which consisted of three allegations. They were documented in the statement of reasons as well as the file containing the evidence.
On 10th October 2014 while the matter was still before the PP to make a straight forward decision he instead made an unprecedented decision to issue a public press statement to the media requesting the OC provide vital evidence into the allegations of misconduct in office by the PM.
Following his press release I published article in response raising serious concerns to such a decision. Extracts from my article include:
"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)."
"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 publically confirmed considering all the material in the file."
Funny enough in the same article I concluded by stating
"What is also more than certain is that once the PP refers the PM to the Leadership Tribunal the PM will most certainly file urgent court proceedings to challenge, frustrate, delay or stay the process of his prosecution. ...."
And yet here we are...
The second constitutional question has arisen after the PP has without constitutional authority altered the allegations referred to him by the OC. He has reworded one allegation and dropped two others which are critical to the case.
The OC referred the PM on three allegations as discussed above. However he only referred one allegation to the LT stated in his press statement.
"He (PM) had failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of a Three Billion Kina Loan from the Union Bank of Switzerland Ag (Australian Branch) to purchase shares in Oil Search Limited. It is further alleged the purchasing of the shares was in the interest of Oil Search and not in the independent state of Papua New Guinea."
PM's lawyers have now seized on these two issues claiming the PP has exceed or failed to properly exercise his powers under the Constitution when referring the matter to the LT. In that he was not entitled to firstly seek further evidence from the OC in relation to the allegations and secondly not entitled to alter the allegations referred to him by the OC. Therefore "the matter" or case referred to the LT by the PP failed to comply with the legal procedures of Constitution and Leadership Code and therefore unlawful and should not be allowed to proceed.
So the Court was left to make a decision on two issues raised by the PM's Lawyers
1) Whether the Constitutional issues raised by the PM are serious and not trivial and require interpretation.
2) Whether or not grant an interim injunction or stay against the PP and LT until the SC interprets these Constitutional issues.
On the first issue the Court believed there was serious issues raised by the PM's Lawyers because on the face of the evidence provided by him the PP sought evidence from the OC (press release) and secondly he altered the OC statement of reasons when it is not clear whether the Constitution procedures allow him to do so.
Having found that there are serious constitutional questions for interpretation the Constitution Section 18(2) obligates the National Court shall unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
So the National Court Judge Cannings was obligated by Section 18(2) of Constitution to refer these constitutional two issues to the SC to interpret and adjourned the National Court proceedings until the SC hands down its ruling.
On the second issue having considered the evidence the National Court ruled in favour of a stay on the grounds that if the LT were to proceed with the matter and finding PM guilty but then only to have the Supreme Court rule that the Constitutional process was not followed therefore any findings of Tribunal including its own appointment were unconstitutional therefore null and void or to no legal effect. Thus making the whole exercise a waste of time and money.
So the questions now left to ask are:
Why did the PP act outside normal practice and procedure to publicly request evidence from the OC. Thus providing evidence to the PM's lawyers which they relied on???
Why did the PP alter the Statement of Reasons by the OC removing two key allegations against the PM???
Knowing that the PM lawyers would be looking for every and any opportunity to avoid facing the Leadership Tribunal why didn't he just comply with the straightforward Constitutional procedures and refer the OC findings to the LT or refuse to and let the OC prosecute the case themselves???
Opposition Leader Don Polye has now asked for the Public Prosecutor to stand down. Polye has called on Pondros Kaluwin to resign in order to preserve public confidence in the office of the Public Prosecutor. Polye says he is concerned about Kaluwin’s conduct on O’Neill’s misconduct allegations which has given rise to constitutional issues now before the courts. He questioned if Kaluwin was genuine in the manner he has handled the Prime Ministers case leading up to the tribunal.
There is one legal avenue left to get the LT back on track correcting the issues raised by the PP but for obvious reasons I won't publicly discuss it in this forum to avoid the PM's lawyers seizing on it.
The request to stay (stop) the LT was made by the PM's lawyers on the grounds that PP exceeded his Constitutional powers in the manner in which he referred the PM to the LT. They argued the LT should be stayed until the Supreme Court (SC) first determines (answers) the Constitutional questions whether PP exceed his Constitutional powers in the manner or procedure in which he referred the PM to face the LT.
The Court upheld the PM's request to stay the LT and it remains in effect until the Supreme Court (SC) first interprets a number of Constitutional questions to assist the National Court to determine whether the PM is correct or not.
I'm sure many are asking the questions WHY? Why would the Judiciary agree to such a request knowing it's the Modus Operandi (typical practice) of our PM to avoid, frustrate any and all proceedings that would bring him to face the law like every other person. There are many that have expressed their disappointment to the Courts decision and now questioning it's impartiality and integrity. With limited understanding of the judicial process and details surrounding the decision one can't entirely blame them.
However having read Justice Cunnings ruling in detail the decision has some merit in the special circumstances of this case. Like me you will be both shocked and disturbed to understand why?
Before discussing the central issues lets first review background facts.
In March 2014 Ombudsman Commission (OC) investigated the Prime Minister (PM) for his part in facilitating the approval of the K3 Billion overseas loan from Union Bank of Switzerland (UBS) on behalf of the State of Papua New Guinea (7 million people).
Following the findings of their investigations the OC established there was sufficient evidence to believe the PM was guilty of three charges of misconduct in office.
1) He failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of the K3 Billion loan from UBS.
2) Having made media release on the sacking of Don Polye as the Minister of Treasury by saying that Mr. Polye caused instability in the Government, when the actual reason was to do with Mr. Polye's refusal the UBS Loan Deal which the PM had unilaterally approved on 6th March 2014.
3) He made misleading statement on EMTV that he had obtained advice from the State Agencies including Bank of PNG on UBS Loan was contrary to evidence the OC received.
In June 2014 OC wrote to the PM giving him 21 days to respond to the allegations against him. This practice is referred to as the right to be heard. It ensures natural justice where the accused in this case the PM is given the right to be notified of the allegations of misconduct against him and given the opportunity to respond to them (either in writing or by interview). This procedure is a requirement by law and OC must comply with it before it can refer a person to the PP to be prosecuted before a LT.
On 11th August 2014 OC after giving the PM the right to respond to the allegations and still being satisfied that there is a prima facie case (sufficient evidence) that PM has been guilty of misconduct in office the OC referred the matter to the PP to decide whether or not prosecute it. The OC handed over the file containing statement of reasons and the evidence to support the allegations. PP must then review the file to confirm the OC's findings and decide whether or not to prosecute the matter before the LT. This procedure is also required by Law and stipulated in Section 20(4) of the Leadership Code and Section 29(1) of Constitution.
Section 20(4) of Leadership code is in the following terms:
If, after an investigation, the Ombudsman Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."
Having received the file from the OC the PP's only responsibility is to then decide whether he agrees that there is sufficient evidence to prosecute the PM. If he does then he is required to refer the PM's matter or case to the Leadership Tribunal.
Section 27(2) of Leadership Code states if the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the OC to the Leadership Tribunal.
PP must make this decision "within a reasonable time" after receiving the file from the OC. Section 29(2) of Constitution states that if he fails to prosecute the matter within a reasonable period, the Commission may prosecute it instead.
In 2008 Supreme Court interpreted Public Prosecutor's constitutional powers to request the Chief Justice to Appoint a Leadership Tribunal. The Court ruled that a reasonable time would be one to four months.
Section 27 of Leadership Code also states if the PP fails to act on the OC's referral then the OC may refer the matter to the LT.
So if the OC were to refer a person to the PP to prosecute, the PP has one to four months to make the decision whether or not to prosecute them. If he takes more than four months to make a decision or refuses to prosecute then the OC can invoke it's powers under Section 27 of Leadership Code or Section 29(2) of Constitution and prosecute the matter itself.
On 14th November 2014 (after 3 months) the PP finally made the decision to prosecute the PM by referring his matter to face the LT. The PP as required by law formally wrote to the Chief Justice (CJ) to notify him of his decision to prosecute the PM before the LT and requested the CJ to appoint the members of the Tribunal. He also wrote to the PM and notify him he has made the decision to prosecute him before the LT.
The role of the LT is to convene and conduct hearings to inquire into the allegations of misconduct in office by PM and confirm whether or not he is guilty. If found guilty they will then decide whether or not the misconduct offences are serious enough to justify removing him from office. Where the misconduct is not serious then the LT may impose a fine or short suspension as was the case in Grand Chief Somare's matter.
After formally referring the PM to face the LT the PP's office issued a press statement informing the public of his decision. The press statement was in the following terms:
"The request arises out of the referral to the Public Prosecutor by the OC in relation to allegations that as the Member of Ialibu Pangia Open and Prime Minister of Papua New Guinea the leader failed to comply with the administrative and financial processes including the normal overseas borrowing process in approval of K3 Billion loan from the Union Bank of Switzerland (Australian Branch) to purchase share in Oil Search Limited and not in the interest of the Independent State of Papua New Guinea."
Kaluwin said he perused (examined) the file and found that there is sufficient and credible evidence to refer the matter to the Leadership Tribunal to hear and inquire into the allegations.
On 27th November the Chief Justice in accordance with Section 27(7) of Leadership Code appointed the Leadership Tribunal, announcing the date of tribunal was to convene was on 26th January 2015, 9:30am Court Room 1 National Court Waigani.
So the whole process seems straight forward so why is the PM challenging his referral to LT claiming the PP has exceeded his Constitutional powers.
On 20th November 2014 only after five days earlier claiming he welcomed the opportunity to clear his name before LT the PM rushed to Court and filed proceedings challenging the PP decision to refer him.
PM is seeking declarations (orders) from the Court that the PP is not entitled to refer "that matter" or bring "such proceedings" against him before the LT. The LT is also not entitled to inquire into and determine "that matter" and a permanent stay against the Tribunal's proceedings in "that matter".
In other words the PM is claiming that the PP failed to follow the proper legal procedures when he referred him to the LT therefore "that referral" by the PP is unconstitutional. The LT was appointed to inquire into the matter referred to it by the PP which the PM's believes was improper therefore the LT was improperly appointed because of the PP failed to follow the proper process.
On 6th January 2014 the PM's lawyers filed application in the same case seeking to refer Constitutional questions to the Supreme Court by invoking Section 18(2) of Constitution and secondly sought an interim injunction preventing the PP from proceeding with PM's referral to LT and to stay the LT from convening on 26th January 2015 until the Supreme Court first resolves the Constitutional issues raised by the PM.
At the hearing of the PM's application the Private Lawyer representing the PP (Kubak & Kubak Solicitors and Barristers) argued against the interim injunction on the grounds it was an abuse of process, as the question of whether any constitutional question should be referred to the Supreme Court was properly a matter for the Tribunal which is the proper forum in which the question of referral to the Supreme Court of any constitutional questions should be raised. The PM's application for Constitutional questions and an injunction to stay the LT proceeding was simply an attempt to prevent the tribunal from convening on 26th January 2014.
So what are these Constitutional Issues raised by the PM claiming the PP is not entitled to refer or prosecute the PM on "that matter" referred to the LT.
1) Whether the PP exceeded his powers when he sought further evidence from the OC before considering whether "the matter or case" should be referred to the LT.
2) Whether the PP exceeded his powers when he amended the allegations or charges referred to him by the OC.
So how did these questions arise?
If you recall on 12th August 2014 OC referred the matter or case to the PP which consisted of three allegations. They were documented in the statement of reasons as well as the file containing the evidence.
On 10th October 2014 while the matter was still before the PP to make a straight forward decision he instead made an unprecedented decision to issue a public press statement to the media requesting the OC provide vital evidence into the allegations of misconduct in office by the PM.
Following his press release I published article in response raising serious concerns to such a decision. Extracts from my article include:
"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)."
"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 publically confirmed considering all the material in the file."
Funny enough in the same article I concluded by stating
"What is also more than certain is that once the PP refers the PM to the Leadership Tribunal the PM will most certainly file urgent court proceedings to challenge, frustrate, delay or stay the process of his prosecution. ...."
And yet here we are...
The second constitutional question has arisen after the PP has without constitutional authority altered the allegations referred to him by the OC. He has reworded one allegation and dropped two others which are critical to the case.
The OC referred the PM on three allegations as discussed above. However he only referred one allegation to the LT stated in his press statement.
"He (PM) had failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of a Three Billion Kina Loan from the Union Bank of Switzerland Ag (Australian Branch) to purchase shares in Oil Search Limited. It is further alleged the purchasing of the shares was in the interest of Oil Search and not in the independent state of Papua New Guinea."
PM's lawyers have now seized on these two issues claiming the PP has exceed or failed to properly exercise his powers under the Constitution when referring the matter to the LT. In that he was not entitled to firstly seek further evidence from the OC in relation to the allegations and secondly not entitled to alter the allegations referred to him by the OC. Therefore "the matter" or case referred to the LT by the PP failed to comply with the legal procedures of Constitution and Leadership Code and therefore unlawful and should not be allowed to proceed.
So the Court was left to make a decision on two issues raised by the PM's Lawyers
1) Whether the Constitutional issues raised by the PM are serious and not trivial and require interpretation.
2) Whether or not grant an interim injunction or stay against the PP and LT until the SC interprets these Constitutional issues.
On the first issue the Court believed there was serious issues raised by the PM's Lawyers because on the face of the evidence provided by him the PP sought evidence from the OC (press release) and secondly he altered the OC statement of reasons when it is not clear whether the Constitution procedures allow him to do so.
Having found that there are serious constitutional questions for interpretation the Constitution Section 18(2) obligates the National Court shall unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
So the National Court Judge Cannings was obligated by Section 18(2) of Constitution to refer these constitutional two issues to the SC to interpret and adjourned the National Court proceedings until the SC hands down its ruling.
On the second issue having considered the evidence the National Court ruled in favour of a stay on the grounds that if the LT were to proceed with the matter and finding PM guilty but then only to have the Supreme Court rule that the Constitutional process was not followed therefore any findings of Tribunal including its own appointment were unconstitutional therefore null and void or to no legal effect. Thus making the whole exercise a waste of time and money.
So the questions now left to ask are:
Why did the PP act outside normal practice and procedure to publicly request evidence from the OC. Thus providing evidence to the PM's lawyers which they relied on???
Why did the PP alter the Statement of Reasons by the OC removing two key allegations against the PM???
Knowing that the PM lawyers would be looking for every and any opportunity to avoid facing the Leadership Tribunal why didn't he just comply with the straightforward Constitutional procedures and refer the OC findings to the LT or refuse to and let the OC prosecute the case themselves???
Opposition Leader Don Polye has now asked for the Public Prosecutor to stand down. Polye has called on Pondros Kaluwin to resign in order to preserve public confidence in the office of the Public Prosecutor. Polye says he is concerned about Kaluwin’s conduct on O’Neill’s misconduct allegations which has given rise to constitutional issues now before the courts. He questioned if Kaluwin was genuine in the manner he has handled the Prime Ministers case leading up to the tribunal.
There is one legal avenue left to get the LT back on track correcting the issues raised by the PP but for obvious reasons I won't publicly discuss it in this forum to avoid the PM's lawyers seizing on it.
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