PRIME MINISTER CHALLENGES HIS REFERRAL On 13th November 2014 Prime Minister Peter ONeill held a press conference stating he welcomed the opportunity to go before the independent tribunal. Seven days later he rushed to court filing proceedings to challenge it. Seems our Prime Ministers Modus Operandi (Latin meaning method of doing things) is telling the public one thing and doing the exact opposite. If you recall in my previous articles back in July that it was beyond doubt PM would be referred to face the Leadership Tribunal and he would seek any means possible to frustrate, delay to stay the process of his referral. It seems this process has now formally begun. On 20 November 2014 the Prime Minister lawyers filed originating summons (OS) proceedings challenging his referral by raising constitutional issues relating to the powers of the Public Prosecutor to refer to the Leadership Tribunal on allegations of misconduct in office. The matter came before the Court on Friday 5th December 2014 where PMs highly paid Australian Lawyer sought an adjournment (delay) to amend the original court documents to include members of Leadership Tribunal. This is because the original documents only named PM as the plaintiff challenging the Public Prosecutor as the defendant. On 27th November Chief Justice appointed the Tribunal members so PMs lawyer now wishes to include them in the proceedings in an effort to obtain a stay order preventing the Tribunal from hearing the allegations against him. The Ombudsman Commission recently announced they were not aware of any challenge against PMs referral this is because they are not named in the above proceedings. The Public Prosecutor is charged with prosecuting the allegations against the PM at the Leadership Tribunal hence he is named and being challenged not the OC. There are two methods to bring civil proceedings or non-criminal disputes before the Courts. One is by way of Originating Summons (OS) and the other is a Writ of Summons (WS). OS is a document which formally begins a legal case where parties are in dispute on issues of law or a legal process and seek the Courts interpretation or declaration whether or not an action taken against them was lawful or followed the proper legal process. WS proceedings are where parties are in dispute over the facts of an issue. Example breach of contract or claim for damages and injury etc. Under a WS proceedings a party will seek the courts judgement as to confirm the facts in dispute by hearing evidence from both sides and then determine if a party is entitled to claim or compensation for breach of agreement or reckless behaviour causing harm. Whichever proceedings OS or WS once a party files their case in Court they are required serve copies of the documents on the party(s) to inform them of the proceedings against them that if they intend to appear in Court to defend the proceedings. If the other party intends to defend the proceedings he can either engage a lawyer to file notice to appear or appear to defend the case himself. At the first hearing the Court will be made aware of the issues whether OS or WS and then give directions to both parties as to what is required of them before the Court will confirm a date for trial. Example the court will ask parties to confirm how many weeks or days they need to file affidavits (sworn statements) and evidence they intend to rely on. Copies are required to be served on their parties to ensure fairness. In court you cannot hide documents from the other parties there must be full disclosure so the Court and parties are aware of the issues. Once a party has filed a case it is common to then apply to the Court of an interim (temporary) orders to protect their rights until the court makes its final ruling. An example is where the PM applied for a interim (stay) order on the arrest warrant against him until the Court determines if the warrant was proper. If the court believes there is strong evidence and they have an arguable case then it will grant (approve) such orders until it has the opportunity to rule on the substantive proceedings. (main issue) Some cases can be as shorts as six months while others can drag on for years, especially if one partys objective is to lock it up in court and delaying the process. This can be achieved by filing application after application for the Court consider ensuring a matter never makes it to trial. There is also the issue of availability of judges, their work load of cases and how quick they hand down their judgements. Some highly efficient judges take only one month to hand down their rulings while others can take six months if not more. A party that goes to Court are referred to as the plaintiff their objective is to firstly obtain a interim stay order protecting their rights and then have the matter progress to trial and the court rule in their favour. The opposing party who have been taken to court are referred to as defendant(s) hence they defend the case against them and their objective (goal) is prevent the court from granting any interim orders, secondly try and have the case struck out before going to trial. An example is in the Oro Governors case Gary Juffa versus Open Member for Ijivtari David Arore. In October 2014 Arore led a vote of no confidence against Juffa voting himself in as the new Governor. The Organic Law on Provincial & Local-Level Governments provides for removal of a Governor if the Governor is negligent, fails in his duties or brings his office into disrepute. Then 2/3 majority or more than 66% of Provincial Assembly (PA) members may vote him out of office. However the law provides strict process that must be followed. So Juffa took the matter to court filing OS proceedings seeking orders that Arore election was unlawful failing to comply with legal process and therefore null and void and declare that Juffa is the legitimate Governor. In order to preserve his rights Juffa filed an urgent application for interim (temporary) order preventing Arore from acting as Governor until the Court makes a final determination whether or not Juffas removal was legal. The Court after hearing the evidence namely sworn affidavits filed by Juffa supporting his application was convinced on the face of evidence Juffas removal may have been illegal and therefore granted him the stay order against Arore. Arore has engaged a lawyer to defend his case and parties are now in the process filing evidence before the Court will confirm a date for trial. At the trial the Court review the evidence before it hands down its ruling whether to grant the orders requested by Juffa declaring Arore election null and void or rule against Juffa confirming Arores election as new Governor of Oro. In this case the PM has filed OS proceedings in the National Court seeking the courts interpretation of law on the Public Prosecutors powers to refer him to face the Leadership Tribunal including declaratory (court) orders that the Public Prosecutor Pondros Kaluwin is not entitled to refer the PM to face the leadership tribunal. In addition to these OS proceedings PM lawyers also progressed their earlier case before National Court filed in June 2014 challenging the Ombudsman Commission decision on 14th March 2014 directing PM and others to stop any activity relating the K3 Billion UBS loan. PM filed the case in June 2014 and obtained a stay against the OC directive stopping the Government from meeting its obligations to repay the UBS loan. On 14 March 2014 after the PM announced the NEC decision to take out a K3 Billion UBS loan to purchase 149.3 million shares or 10.1% equity (ownership) in Oil Search Limited the OC issued notice and directive to the Prime Minister and Secretary of Treasury to freeze all progress on the UBS loan until they conducted their investigations to determine if the transaction was proper and legal. However the directions of the OC was too late because the parties had already signed the loan agreement, monies paid to Oil Search and shares issued to UBS to be held in trust for State (Govt) until the loan is repaid. In May 2014 the Secretary for Treasury wrote to OC seeking approval to make loan repayment to avoid the State defaulting. The OC refused the Secretarys request and in the end he went ahead and made the payment anyway, thus breaching the OCs directive. The OC wrote to Secretary advising he had defied their directive and therefore guilty of misconduct in office. PM and Secretary then filed OS proceedings challenging the OCs legal powers to make as such a decision. They sought interim orders from the Court to set aside the OC directives and allow the State to continue to make repayments against the UBS loan. The Secretary argued that the State (Govt) will be in default and UBS will have the right to commence enforcement processes which would result in a loss of Oil Search shares to UBS. On 11th June 2014 National Court granted the PM and Secretary interim (temporary) stay orders against OC and allow them to continue to service the loan until the Court determines whether or not the OC exceeded its powers by giving such a directive. The PMs lawyers then filed an application (request) that National Court refer a number of constitutional questions to the Supreme Court (SC). The SC being the highest court in PNG is the only court that is charged with the power to interpret issues of constitutional law. On 3rd December 2014 the National Court upheld the PM and Secretarys application and referred to the Supreme Court a number of questions for interpretation under Section 18(2) of Constitution. Section 18(2) of Constitution is in following terms. Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal 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. The Constitutional questions the Supreme Court must now answer are: (1) Whether the OC has lawful authority or power to have made decision on 14th March 2014 issuing a directive to the Prime Minister and others to freeze all progress on the UBS Loan pending its investigations. (2) Whether a failure to comply with Notice of Direction on 14th March 2014 by the Prime Minister and others qualifies as misconduct in office. (3 ) If the answer to both questions is YES then does the OC have authority and powers to impose penalty under Section 28(1)(g)(iii) of the Constitution which states that a person found guilty of misconduct in recommends to the Tribunal that they be dismissed. (4) Whether the OC is required that to comply with Section 59 of the Constitution by providing the minimum requirement natural justice to act fairly and in principle and to be seen to act fairly before: (a) making any decision affecting the rights or interest of a party, State of its citizens. (b) issuing any notice of direction (c) having made the decision and issued the direction on 14th March 2014 against Prime Minister (5) Whether a OC has lawful authority, power and jurisdiction to (a) make any decision affecting the rights or interest of a party (b) Issue a notice of direction under Section 27(4) of the Constitution which states OC may give directions, either generally or in a particular case, to ensure the attainment of the objects of this section. (c) make a decision and have issued a direction on 14th March 2014 against the Prime Minister and others to stay any and all activity relating to the UBS loan. (d) issued a directive to Secretary of Treasury Dairi Vele on 23rd May 2014 (e) refer a Leader for misconduct in Office pursuant (according) to Section 27 of Constitution. (6) Whether on proper interpretation of Section 255 of Constitution (Consultation) where a law provides for consultation between parties and/or bodies then consultation must be meaningful and must be a genuine interchange and consideration of views. To simplify the issues the PM and the Secretary are asking the National Court to get the Supreme Court to interpret the Constitutional laws that cover OC powers under Section 28 of Constitution to confirm whether or not the OC has the powers to issue such a directive to a party without first giving them the opportunity to be heard or explain their side of the story. A fundamental principle in law is natural justice. They are also relying on the Section 255 of Constitution that relates to Consultation and raise the question whether the OC should have first consulted (discussed) the PM and Secretary before issuing a directive to freeze the loan or loan payments. Section 24 of Organic Law on Ombudsman Commission states that No proceeding of the Commission shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Commission shall be challenged, reviewed, quashed or called into question in any court. So the only way to get around this provision (law) or stop OC from investigating a leader is to claim the OC exceeded its jurisdiction (powers) and raise constitutional questions so the issues can be held up in the Supreme Court. The same method was sought in having his warrant of arrest locked up in the National Court by raising Constitutional questions on the powers of Commissioner of Police. The National Court granted interim order staying the warrant of arrest against PM and referred sixteen constitutional questions to Supreme Court to interpret constitutional powers of Commissioner of Police Geoffrey Vaki to instruct officers in investigations and his obligations to execute warrants. The Supreme Court ruled the Commissioner has authority to issue directions to other members of the police force regarding the conduct of criminal investigations, including applying for arrest and search warrants, laying charges, and presenting informations. However it also ruled that a warrant by the district court “is the equivalent of a court order, which must be complied and put into effect”. Despite the Supreme Court ruling the National Court is yet to convene a hearing to consider the ruling of the Supreme Court in its decision whether or not remove the stay on the warrant or progress OS proceedings for final judgement. At this stage the PM lawyers have not filed or been granted a stay against the PM facing the Leadership Tribunal . But you can expect them to file for it before the matter returns to court on 16th December 2014. I can only assume they will try and rely on these argument that the Tribunal should be stayed until the Supreme Court determines these constitutional issues. Then next part of this article will discuss whether PM will be successful in getting a stay order against the Leadership Tribunal.
Posted on: Tue, 09 Dec 2014 06:59:59 +0000
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