PRIME MINISTER SEEKS TO STOP LEADERSHIP TRIBUNAL As predicted and stated in my last article on 9 December 2014 Prime Minister would seek to stay (stop) the Leadership Tribunal in an effort to delay the process by raising Constitutional issues in the Supreme Court. An extract from that article: 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 the argument that the Tribunal should be stayed until the Supreme Court determines these constitutional issues. The hearing of 16th December 2014 did not eventuate because it fell on Supreme Court week and the Judge was not available. It was adjourned (rescheduled) to yesterday (5/1/15). A the hearing before Justice David Cannings sitting as National Court Judge PMs lawyer moved an application to amend the court documents to include the Ombudsman Commission(OC) and the members of the Leadership Tribunal in the case against the Public Prosecutor. So as to seek a stay (stop) against the Leadership Tribunal until the SC hears and determines Constitutional issues relating to his referral. This tactic was also used to stay the warrant of arrest after the PM challenged the decision of District Court who refused the request by Police Commissioner Geoffrey Vaki exercising his constitutional powers to withdraw the warrant. PM was successful in obtaining a stay order by the National Court until the Supreme Court could determine the Constitutional powers of the Commissioner of Police whether or not to withdraw a warrant of arrest as well as powers over members of the Force. Although the Supreme Court was quick to hear and determine Constitutional issues the National Court is yet to make a final decision to release the warrant taking into consideration the SC interpretation. Until then the warrant remains stayed. However unlike that case where powers of the Commissioner of Police were raised for the first time efforts to delay or challenge a referral to Leadership Tribunal are not new. Most if not all the loops holes have been exhausted (used) by former MPs Ministers and even Prime Minister. (Somare). PM (ONeill) has two cases before the National Court in an effort to challenge or prevent him from facing the Leadership Tribunal. First is against the OC filed in back in June 2014 after the OC issued a directive preventing the Government from repayments on the K3 Billion UBS loan. PM and Secretary of Treasury Dairi Vele filed the case challenging the OCs powers provided by Section 28 of Constitution. The Court granted them interim relief to make the payments to UBS to avoid the Country defaulting on the loan. PMs lawyers are asking the courts to confirm whether or not the OC exceeded or abused its powers by issuing such a directive without first consulting him or giving him the opportunity to be heard. Because the issues raised in the National Court (NC) case relate to Constitutional law (OC powers) the PMs lawyers made an application for leave (permission) to be allowed to first seek the Supreme Courts interpretation whether or not the OC abused or exceeded its constitutional powers. The NC granted them leave as matters that relate Constitutional law are exclusive jurisdiction of the SC and further the National Court is bound by Section 18(2) of Constitution to do so. In the second case the PM is challenging the Public Prosecutors (PP) powers to refer him to the Leadership Tribunal. At the time they filed the case (November 2014) the Leadership Tribunal was yet to be appointed by the Chief Justice (CJ) so they could not have included them in the proceedings at the time they filed the case. When the case returned back to court in December 2014 the PMs Lawyer sought leave (permission) to amend the court documents to now include both the OC and three Leadership Tribunal members. I suspect the reasoning behind this is that to obtain a stay order against the Leadership Tribunal they need to be named in the case. The reasoning behind including the OC is because they maybe trying to combine both cases. The decision by the PMs lawyer to file two cases was not by chance but a tactical one in a desperate effort to raise enough issues before the Courts to justify staying (stopping) the Tribunal. The first case is already before the Supreme Court however it only relates to the powers of the OC to issue directives and nothing to do with the PMs referral. For that reason the PMs lawyer would not have much of a chance of obtaining a stay order. On the other hand the second case challenging the PPs decision to refer the PM relates directly to the PMs referral. The PPs case may not have strong grounds to raise constitutional issues and justify the Court issuing a stay order against the Tribunal convening. In 2010 Supreme Court already ruled on constitutional powers of the PP in relation to referring persons to the face the Leadership Tribunal. So that delay tactic raising constitutional issues in relation to the PP has already been exhausted (used). I can only presume that the PMs lawyer is now hoping to join the two cases thus tying up the case against the PP before the SC by including the OC as a party and combining it with the first case which is already before the SC. The plan is to try first obtain a stay order through the National Court who has a higher authority to the Leadership Tribunal. The risk here is that National Court may refuse the application relying on the Supreme Court ruling in Grand Chief Michael Somare vs Manek (Public Prosecutor) case in 2011. In that case the Supreme Court ruled that any applications (request) to the higher courts for interim injunctions (temporary stay order) to intervene and prevent processes against any investigating functions under the Constitution including OC, Police, Leadership Tribunal or Commission of Inquiry would be against the good order, administration and good governance. Applications for such relief amounts to an abuse of process of the Court. All such applications should be declined without exception. A competent lawyer need only rely on the Supreme Court (SC) ruling and Schedule 2.5.9(1) of the Constitution which states that All decisions of law by the Supreme Court are binding on all other courts, but not on itself. In essence the Constitution dictates that National Court is bound to comply with Supreme Court ruling. In my respectful opinion relying on the same SC ruling the PMs application to stop the leadership tribunal should fail. Where the balance of convenience is not in favour of granting a stay order especially after the tribunal members have already been appointed and the date to convene has already been confirmed on 26th January 2015 by the CJ. A further argument is that even if found guilty, PMs right of appeal or review to challenge the final decision against him is still protected under the Constitution and still available to him. Relying on the SC decision the NC may rule that such issues challenging the powers of the OC and PP to refer the PM should be raised before the Leadership Tribunal which was dictated by the Supreme Court. The PMs lawyer have argued that such issues are Constitutional matters and Leadership Tribunal has no jurisdiction (powers) to deal with such issues. Which is true but the LT can decide whether or not stay its own proceedings until the SC deals with the Constitutional questions raised by the PMs lawyers. So failing a stay order by the NC the PMs lawyers will most certainly make an application before the Leadership Tribunal to stay their inquires into the allegations against the PM until the SC has dealt with the Constitutional issues. A Leadership Tribunal is like the District Court and are referred to as a quasi judicial body. They are lowers courts of the National and Supreme Courts. If issues that relate to tribunal or district court are also raised before the National or Supreme Court you would expect them to respectfully delay their own proceedings until the NC or SC first hand own their rulings. This is basically the game plan of the PMs lawyers that failing a stay order by the NC who may decide that the LT should decide whether or not to stay/delay its own proceedings. However an intelligent lawyer need only rely on the views of the same Supreme Court ruling that it would be good order, administration and good governance to allow for prompt investigations, hearings and disposal of allegations of misconduct in office by leaders. They are still afforded the rights of review and appeal after a final decision of the Leadership Tribunal accordingly the Constitution Schedule 2.5.9 bounds the Leadership Tribunal a lower court to the same view. Its reported the NC this morning granted leave to the PM on the preliminary application to include the OC and Tribunal members as part of the proceedings and delayed its ruling in relation the to request for stay on the Leadership Tribunal until a later date. There is nothing preventing the PMs two cases from proceeding so the decision this morning was expected. The same was the case in the Somares challenge before the Supreme Court against his referral to face the Leadership Tribunal by the PP and OC. The SC did not stay the LT but rather allowed it to proceed and later hand down its decision dismissing Grand Chief Somares case for abuse of process. The question now is whether the NC will dismiss ONeills application to stay the Leadership Tribunal on the same grounds. Next article will provide insight into the procedures and processes of the Leadership Tribunal.
Posted on: Tue, 06 Jan 2015 07:34:58 +0000