Wednesday, March 16, 2011

Chief justice erred in law

English judge says tribunal acted beyond its jurisdiction




A MEMBER of the leadership tribunal yesterday expressed disbelief that PNG law could have intended for the prime minister to be treated less severely than other leaders, The National reports.

“I just can’t believe that the legislature could have intended that the prime minister could have lesser penalty than other leaders,” Sir Robin Auld said when explaining his “reserved” decision.

He further said the tribunal was forced to “act beyond its jurisdiction” when the decision was left to it to decide whether or not to suspend Prime Minister Sir Michael Somare.

He was referring to the decision by Chief Justice Sir Salamo Injia to leave the matter of suspension up to the tribunal to decide.

“The tribunal has been caused to act beyond its jurisdiction,” he said yesterday.

Sir Robin on Monday dissented from the decision by his two colleagues not to suspend the prime minister for the duration of the tribunal.

The Englishman, who now serves as president of the court of appeals in Solomon Islands, quoted relevant parts of PNG’s Constitution [section 142(6)] and the relevant Organic Law on the Duties and Responsibilities of Leadership (section 28), among others, and also made reference to the decision of the Supreme Court last May relating to the Ombudsman Commission (OC) versus Patrick Pruaitch.

He quoted the section where it made reference to the “automatic” suspension of a leader when referred for prosecution by the OC.

Sir Robin said Pruaitch’s Supreme Court decision, paragraphs 80-90, stated that a leader once referred, and when the chief justice convened a tribunal, that “all” leaders are deemed automatically suspended with full pay by the application of section 28 of the Organic Law “pending, and I repeat, pending” the tribunal, he said.

“The wording of section 28 is very clear,” he said.

Sir Robin added that the Organic Law was “mandatory” and that the outcome “does not produce any conflict”.

Read together with the constitution, Sir Robin’s indication was that the Organic Law on Duties and Responsibilities of Leadership and the constitution might have conflicted each other.

He pointed out that section 142(6) of the PNG Constitution granted the prime minister an exception to all other leaders.

The section stated: “The prime minister may be suspended from office (a) by the tribunal under an Organic Law made for the purposes of section 28, pending an investigation into a question of misconduct in office.” 

This is what Sir Robin could not “believe” was the intention of parliament for the prime minister to have a lesser penalty when all other leaders faced automatic suspension.

Sir Robin said since the tribunal had been granted the discretion to decide and, since his two pre-eminent colleagues had decided in favour of not suspending the prime minister, he had no option but to agree with them.

The hearing adjourned yesterday but did not set a time for it to reconvene.



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