Friday, February 25, 2011

No special law for Sir Michael

 ‘Supreme Court May 2010 ruling applies in prime minister tribunal’




THE Supreme Court has spoken and that the Prime Minister, Sir Michael Somare, stands suspended from office, senior private lawyer Loani Henao told the NBC Talkback Show programme, The National reports.

Citing the decision of the court last May in the matter of former finance minister Patrick Pruaitch (SCA 7 of 2010), Heano said a precedent had been set that the law in this matter had been decided upon conclusively and that there was no room for ambiguity.

He said going by the ruling of the Supreme Court in that case, Sir Michael was effectively suspended and for him to continue to hold office as prime minister was “unlawful and illegal”.

Henao said the PM’s suspension should have immediately taken effect the instant he was referred by the Ombudsman Commission via the public prosecutor and, ultimately, when the chief justice appointed a leadership tribunal on Monday.

“This is a clear interpretation – and clear – precedence set by the highest court of the land, the Supreme Court, in the matter of Patrick Pruaitch last May.”

He added that that decision had made reference to all leaders, and made no exceptions, “because that is what the law says relating to the leadership code”.

Quoting the three-judge Supreme Court decision last May, with references to sections 27 (appointment of tribunal members) and 28 (suspension of the leader), which stated: “In our opinion, this is consistent with the thrust and the Spirit of the Constitution that a leader, who has been found guilty of misconduct in office by the Ombudsman Commission, should not be allowed to continue to perform as a leader after his integrity is or has been called into question, and after a tribunal is named to inquire into allegations of misconduct in office.

“In our opinion, once the Ombudsman Commission finds a prima facie case against a leader, and refers him to the public prosecutor for prosecution under the leadership code, he should not continue to perform his leadership responsibilities once an appropriate tribunal is appointed to inquire into his alleged misconduct in office, for the reason that a finding of prima facie case against him by the Ombudsman Commission over the matter shows that the commission must have good reason to conclude that the leader is guilty of misconduct in office.”

Henao acknowledged the reference made by the Prime Minister’s Department chief of staff Paul Bengo in a full-page advertisement, which the chief justice also acknowledged when announcing the tribunal, and pointed out section 142(6) of the Constitution, which make exception for a PM, and stated: “The prime minister may be suspended from office by the tribunal under an Organic Law made for the purposes of section 28, pending an investigation into a question of misconduct in office” but, Heano said, the Supreme Court decision last May had set the precedence for all leaders holding public offices.

In reference to the statements made by Bengo, first legislative counsel Hudson Ramatlap and the chief justice, Henao said: “With the utmost respect (to them), I take issue with the attributes made by Chief Justice Sir Salamo Injia (relating to section 142(6) of the constitution.

“In my respected view, the issue of whether the PM is suspended has been dealt with by the Supreme Court (Pruaitch vs Manek – last May).”

He also urged Ramatlap to read that decision (SCA No.7 of 2010).

Henao said by continuing in office, the leader in question would also frustrate the work of the tribunal.

In the Pruaitch vs Manek case last May, the Supreme Court had ruled: “The duly appointed tribunals will be left frustrated and unable to perform the tasks for which they are appointed – inquiring into matters of alleged misconduct in office against the people referred.

“The leaders, meanwhile, will continue to perform their official duties by taking out stay orders at will against the tribunals from inquiring into their alleged misconduct.

“This will make a mockery of the leadership code.

“The inquiries will continue to be stalled and the leaders, whose integrities are already called into question, will continue to discharge leadership responsibilities. This will also make a mockery of the constitution and the leaders will continue to act in contempt and defiance of the constitution.”

The chief justice, when announcing the leadership tribunal, said the “question of suspension pending an investigation into the charges of misconduct in office against the prime minister will be determined by the tribunal”.

The three-member tribunal, comprising court judges from abroad, will start on March 10.

The prime minister continues in office.



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