Friday, March 18, 2011

‘Tribunal acted beyond powers’

Decisions made could be voided, says Donigi

THE prime minister's tribunal is exercising powers that it does not have and that decisions made by it could be voided, a prominent lawyer said in Port Moresby yesterday, The National reports.
Constitutional lawyer, ambassador Peter Donigi, said the tribunal had been asked to interpret and apply a constitutional law, which is the exclusive preserve of the Supreme Court and of no lesser court, including tribunals.
As section 142 (6) of the constitution, which has never been tested, is being interpreted on the question of suspension of Prime Minister Sir Michael Somare, Donigi said that job was rightly vested in the Supreme Court under section 18 of the constitution.
A member of the tribunal, Sir Robin Auld, has already alluded to the tribunal being forced to act beyond its powers when it was asked to decide whether or not to suspend the prime minister.
Donigi said the matter could be rectified if the Ombudsman Commission appealed any decision or made a constitutional reference to the Supreme Court.
That very issue will come to the fore when the tribunal hands down its decision at 1.30pm on Monday (see lead story).
Donigi was especially critical of the counsel in the tribunal who had failed so far to draw the attention of members of the tribunal to the existence of section 18(1) and section 18(2) of the constitution.
Those provisions provided plainly that, in the event a question of interpreting or applying the constitution arises in a lower court or a tribunal, that question must be referred to the Supreme Court.
It alone was vested with the powers to interpret the constitution, he said.
In a statement, Donigi said that the chief justice did not err in law and neither was the tribunal guilty in making a decision not to suspend the PM.
He said:  "However, in my view both counsel for the prosecution and that of the prime minister had erred substantially in their respective duty as officers of the court on a matter of prime constitutional importance to this nation," Donigi said.
"They have failed to draw the attention of the members of the tribunal to the existence of section 18(1) and 18(2) of the constitution.
"It would appear to me that a question of constitutional question has arisen in the matter of interpretation and application of section 142(6) of the constitution because this is the first time in the history of this country that this question has arisen.
"There are, therefore, no precedents for the tribunal to follow.
"The tribunal, therefore, is duty-bound and has no option but to find facts and refer the question to the Supreme Court for its opinion on whether the prime minister should be suspended.
"If one is to read the constitutional planning committee report, one will find that it was very explicit about the prime minister being one among equals.
"The only power that he exercises, which no one else has, is the power to appoint ministers and to remove them from office.
"We have had a travesty of justice by failure of the lawyers to perform their duty to up hold the rule of law in this nation.
"Unfortunately, the laws that we have adopted from England are not all together clear on the definition of the term 'may' as is used in section 142(6) of the constitution.
"All precedents say that the word 'may' can be interpreted as obligatory in some cases and, in other cases, as discretionary depending on the circumstances of each particular case.
"So, it would seem to me that the question of its interpretation and application is a matter for the Supreme Court to decide and not the tribunal.
"The tribunal has, therefore, erred in exercising powers it does not have under our constitution. In law, it can be said that the tribunal had acted beyond its powers by virtue of section 18 of the constitution and its ruling that the prime minister stays in office, therefore, is voidable.
"These are matters of law that could be rectified by an appropriate appeal or by a constitutional reference by the Ombudsman Commission."

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