Short answer is Yes...
So when?? - Most likely on Monday if not then no later than this coming Friday.
The PM was referred to the PP on August 2014 so why has it taken so long??
Well firstly the Public Prosecutor (PP) was dealing with the other cases referred to it by Ombudsman Commission (OC). The PP on Thursday referred the Member of Manus Ronny Knight to the Chief Justice for alleged misconduct in office. Mr Knight's case among others was referred to the PP before the PM's case so he dealt with that first. Secondly given the PM's referral relates to the highest office in the land it was only appropriate to give it proper and careful consideration before the decision whether or not to refer PM.
Some of you may recall an article I posted on 11 August 2014 titled "Court Retrains PM and Acting Ombudsman." The article covered the role and purpose of the Ombudsman Commission (OC) and explained the only feasible means to remove the PM is his dismissal from Office by a Leadership Tribunal. Further that the OC had investigated Peter O'Neill in relation to the UBS loan, finding there was a prima facie case (sufficient evidence) for misconduct in office. His referral to the Public Prosecutor (PP) by the OC was imminent (certain) and the only uncertainty will be whether he will be removed from Office in two or four months.
Well less than 24 hours after posting that article the OC referred the PM to the Public Prosecutor (PP). It will be just under two months now from PM's referral to the PP by the OC and now his referral by PP to the Chief Justice (CJ) to face a Leadership Tribunal. So the point of whether the PM will be removed from office in two or four months looks to be the latter (4 months) from12 August 2014.
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So what does the PM being referred to a Leadership Tribunal actually mean??
Those of you who haven't had the benefit of reading my previous article explaining the OC role and powers I will recap or provide a short insight.
The office of Ombudsman Commission is established by the Constitution as an independent office and is answerable to no one, not even the Prime Minister or the Government. Its primary purpose other than to ensure proper administration of government bodies and to challenge unfair laws is to supervise the enforcement of the Leadership Code.
The OC is sometimes referred to as the government watchdog because its function is to keep an eye on the Government by investigating any governmental body or office, including Members of Parliament.
So if you are on the government payroll or hold a government appointed or elected position you’re subject to investigation by the OC.
The Leadership Code also referred to as the Organic Law on Duties and Responsibilities of Leaders is a law established by the Constitution (Sec 28). Persons who are subject to the leadership code include:
i) All Members of Parliament including the PM and Opposition Leader
ii) Members of Provincial Assembly and Local-Level Governments,
iii) Heads of Government Departments (Secretary of Department )
iv) Constitutional Office holders including Police Commissioner, Defence Force Commander, Electoral Commissioner, Judges & Legal Officers etc.
v) Senior Diplomats,
vi) Executive Officers of Political Parties.
If a person who is subject to the leadership code conducts himself in such a way, both in his public or private life or his association with other persons including family, friends or business partners places himself in a position in which he has or could have:
(i) a conflict of interest or be comprised; or
(ii) demean or spoil the reputation of his office or position; or
(iii) allow his public or official integrity, or his personal integrity, to be called into question; or
(iv) to endanger or diminish respect for and confidence in the integrity of government in PNG;
(vi) use their office for personal gain;
(vii) or enter into any transaction or activity that might be expected to give rise to doubt in the public mind as to whether they are carrying out their duties.
If he or she commits any of the above acts maybe guilty of misconduct in office and dismissed from office for a period of three years.
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The Organic Law on Duties and Responsibilities of Leaders prescribes the specific leadership code offences a person can be dismissed from office for.
Section 4 - Statement of Income.
A person subject to the leadership code must disclose a statement of income to the OC every year. This report includes disclosing all their assets (money, property, land etc), liabilities (loans) income including gifts received and business connections. Failure to do or produce false information is an offence of misconduct in office.
Why is it important? Because if an MP reports he only receives income of K5,000 per fort-night but he has two houses in Moresby and one overseas, buys two new VX Landcruisers the OC will know he can't afford it and will conduct an investigation into where he got the money to pay for it.
Section 5 - Use of Office for Personal Benefit.
If an MP directly or indirectly asks or accepts any benefit using his office or official position, is guilty of misconduct. (example receives kick backs, money or property etc)
Section 6 - Personal Interest.
Where an MP fails to disclose conflict of interest he or his associate may have in relation to his position or official capacity is guilty of misconduct in office. Example giving government contracts to his family or friends company including car hire, hotel/guest house etc he must disclose it to the OC and they will approve or decide whether it is proper or not).
“Associate”, includes a member of his family or a relative, or a person or company/business associated with him or with a member of his family or a relative;
Section 7. Company Directorships
Where a Minister becomes or nominates his associate to become a director of a company or foreign enterprise, including his spouse (wife) and children without first obtaining approval from the OC is guilty of misconduct in office, (this to avoid conflict of interest). A Minister who fails to give priority to official business over personal business is guilty of misconduct in office.
Section 8. Shareholdings.
A person who is subject to the leadership code becomes or nominates his associate to become a shareholder in a company, including his spouse (wife) and children that would place him in position of conflict of interest without first obtaining approval from the OC is guilty of misconduct in office.
Section 9. Engaging in other paid employment.
A person who is subject to the leadership code that engages in other paid income other than his official job without first obtaining approval from the OC is guilty of misconduct in office.
Section 10. Interests in contracts.
A person who is subject to the leadership code or his wife or children seeks, accepts or holds any interest in any Government contract without first obtaining approval from the OC is guilty of misconduct in office. The OC will not give approval where there is a direct conflict of interest to the persons official position.
Section 11. Accepting bribes.
A person who is subject to the leadership code or any of whose associates, corruptly asks, or receives or attempts to receive any benefit or favours of any kind for himself or his associate including family in consideration of his public official is guilty of misconduct in office.
Section 12. Accepting loans,
A person who is subject to the leadership code including wife or child accepts any loan or gift or other benefit or advantage from a person, business or foreign company is guilty of misconduct in office.
Section 13. Misappropriation of Public Funds
A person who is subject to the leadership code knowingly applies or agrees to apply public funds to any purpose to which it cannot be lawfully be applied is guilty of misconduct in office.
Section 14. Abuse of Office for personal advantage.
A person who is subject to the leadership code discloses any confidential or secret information acquired by him in the course of his official duty or for personal gain or advantage or for the personal gain or advantage of some other person is guilty of misconduct in office. (Example disclose government confidential information to help a family member or associate win a government contract).
Section 15. Disclosure of interest before debate in Parliament or voting.
A Member of Parliament or Minister who has a direct interest in a matter, NEC decision etc or new legislation where he, for his family or associate may benefit, must disclose his interest and the extent of his interest in the matter. After he discloses his interest he shall not take part in the decision or voting, (again to avoid conflict of interest).
Section 16. Agents.
If an act is committed by a person (wife, child, relative or associate) who is an agent of a person who is subject of the leadership code with his knowledge and approval then he is guilty of misconduct in office.
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To think with such strict leadership laws how did PNG get so corrupt??
In essence "Rule of Law" is merely a principle that all people and institutions are subject to and "accountable" to law that is fairly applied and enforced; the principle of government by law.
Hence without the key elements of enforcement and accountability laws are merely a principle documented on a piece of paper and to no effect. So the flaw lies not in the law but the lack of enforcement resulting in our leaders no longer being accountable.
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Back to the issue at hand, so the OC investigated the PM on allegations of misconduct in office in relation to his part for authorising and facilitating the K3 billion UBS loan. The OC found there was sufficient evidence to believe the PM conduct breached the Leadership Code.
So the OC referred the PM to Public Prosecutor, who is Chief State or Government lawyer whose job is to prosecute those who break the law.
In this case its alleged the PM has breached (broke) the Leadership Code laws.
So what are the allegations exactly??
I understand the conduct of the PM in facilitating the K3 Billion UBS Loan specific to his failure to comply with legal and administrative procedures.
Thus he allowed his public and official integrity to be called into question; and further entering into a transaction (UBS Loan) that gave rise to doubt in the public's mind as to whether the PM are carrying out his duties in the interest of PNG.
So then what will happen now??
Once the Public Prosecutor (PP) delivers the formal notice (letter) to Chief Justice requesting him to appoint a Leadership Tribunal. The CJ is required by law, under Section 81(1)(g) of Constitution to appoint a leadership tribunal to hear the allegations against the PM (by law meaning he cannot refuse).
The CJ will in the case of Prime Minister appoint an independent tribunal of three members one of which shall be a chairman of the tribunal. The tribunal members shall be made up of either:
(i) Judges or former Judges of the National Court of PNG;
(ii) Judges or former Judges of a country that has a similar legal system to that of PNG (Commonwealth Countries);
When Grand Chief Michael Somare was referred to the Leadership Tribunal back in 2010 for failing to file his Income Statement the CJ appointed three overseas judges to preside over the leadership charges against him. Because PNG Judges are appointed by the Prime Minister it seemed only proper to maintain independence the overseas judges be appointed. I suspect the CJ will do the same for Peter O'Neill. However I believe this time the CJ may appointed a PNG and two overseas judges most likely the Deputy Chief Justice Salika.
So will the PM be suspended from Office while his case is being heard by the Leadership Tribunal??
Short Answer is Yes.
Section 28 of Organic Law on Leadership Code states where a person is referred to a Leadership Tribunal the person alleged to have committed misconduct in office is suspended from duty.
In the past there has been conflicting rulings by the Supreme Court on when the suspension should take place. In the recent Supreme Court ruling in 2011 in relation to Grand Chief Somare's case the Supreme Court ruled the suspension takes place the moment a decision is made to refer a leader to a leadership tribunal. So the moment the PP writes to the CJ to formally refer the PM to the Leadership Tribunal he will be suspended from office by operation of law. This could be Monday or any time this week. In the Grand Chief Somare's case the Tribunal exercised its discretion under Section 142(6) of the Constitution and opted not suspend Somare on the grounds the offences were not serious. (administrative)
So what happens when the Leadership Tribunal is appointed???
Once appointed by the CJ which may take two weeks depending if they accept their appointment and are available to travel to PNG. The Tribunal will receive the statement of allegations and supporting evidence.
Section 27(4) of Organic Law on Leadership Code states a Leadership Tribunal shall make due inquiry (hear the evidence) without regard to legal formalities or the rules of evidence, subject to compliance with the principles of natural justice (to be fair).
Unlike Criminal cases where strict legal formalities and rules of evidence apply the accused can get off on technicalities relying on legal eagles or meddlesome lawyers. The standard his higher in criminal cases because if a person is convicted (found guilty) he maybe sentenced to prison. Unlike Leadership cases the accused if found guilty is only dismissed from office and barred from being elected or appointed to hold a leadership position for three years.
So what happens if the PM is found guilty and dismissed from Office??
If the tribunal finds that the PM is guilty of misconduct in office, it shall recommend to the Head of State being Governor General or GG that he be dismissed from Office.
If the misconduct in office is a minor offence the Tribunal will instead consider a fine or suspension. This was the case for Grand Chief in 2010 when he was found guilty for failing to file his income statements. Because it was not a serious offence and only administrative one the Tribunal recommended he be fine and suspended for two weeks without pay.
By law the Leadership Tribunal will then announce its decision to the public and send a copy of the decision to the Speaker as well as the National Executive Council (NEC).
So what's the difference to being "Arrested" versus being Referred to "Leadership Tribunal"??
A Leadership Tribunal is a much shorter process to remove someone from Office. From OC investigations to referral by Public Prosecutor and a Tribunal, a person can be dismissed (removed) from office in less than four to six months.
In a Criminal case it can take anywhere from 2 to 4 years. You have to physically arrest and charged the person unless they avoid arrest. Once charged they are referred to the District Court before the case is tried in the National Court. If he is found guilty and sentenced and decides to appeal/challenge the decision in the supreme court, this process can take another year.
Paul Tiensten is a prime example. Arrested in November 2011, convicted in November 2013, imprisoned in February 2014. He appealed his conviction and is awaiting the decision. By law he remains an MP until his appeal is determined by the Supreme Court.
Can the PM stall or delay or avoid being dismissed from Office??
He can try but the Supreme Court ruled that in Somare -vs- Ombudsman Commission case that if a person who is referred to the tribunal had a serious issue or concern he should raise those issues and concerns at the tribunal and if he was still aggrieved by the decision of the tribunal, he should immediately file for a judicial review of the tribunal's decision. In other words if the PM should file any proceedings to challenge his referral to the Leadership Tribunal the Courts may advise he raise those issues at the Tribunal hearing.
So will the PM be dismissed from Office by Leadership Tribunal??
In my opinion Yes. The central issue will come down to was the conduct of the PM misbehaviour or misconduct. The Supreme Court ruled 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. Examples of misbehaviour or misconduct include unacceptable conduct in the workplace or outside of the workplace which do not befit the office occupied and includes unethical behaviour amounting to breach of any Code of Conduct.
In my opinion the conduct of the PM to approve the K3 Billion UBS Loan without following the proper legal procedures and manner in which he did is arguably unethical.
Can the PM challenge or appeal the decision of the Leadership Tribunal if he is dismissed from Office??
Yes, if the Tribunal rules against the PM he can apply for review of the decision in the National Court by way of Judicial Review. Very much the same process undertaken in the arrest warrant. However he will remain dismissed until the review his held. Bear in mind any such challenge will not be easy because unlike most cases that are heard by a single judge, a Leadership Tribunal is heard by three judges and in this case three highly experienced Judges.
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In my next article I will discuss the events that will follow the PM's suspension, his likely nominee to be Acting PM and his next likely successor.