Thursday, June 24, 2010

PNG's Leading Constitutional Lawyer Calls for PM to Step Aside


Sir Micheal Somare  - the right thing to do is to step aside as Prime Minister _______________________________________________________________
The right thing for Sir Michael Somare to do to promote and uphold good and ethical government, protect the good name of the Office of Prime Minister and set a better example for leadership in PNG, is to step aside as Prime Minister now; and allow investigations to be conducted by relevant law enforcement agencies into serious allegations that he broke a number of laws in the Moti Affair.
The Moti Affair
The Ombudsman Commission submitted to the Parliament its report on the Moti Affair. The Parliament rejected the Report on 10th March 2010. In the recent sitting of the Parliament, no mention was made of the Report or of the Moti Affair generally. Should PNG just forget about this episode, just like other similar issues in the past, as it if it never happened?
This one should not be forgotten.
The Moti Affair should not be forgotten because it involved allegations of unlawful conduct on the part of the person holding the Office of Prime Minister. The person occupying that Office, Sir Micheal Somare, was accused of beaching PNG’s laws including committing criminal offences. If PNG is ever to tackle serious issues about whether the rule of law exists in the country and issues of governance (mismanagement, corruption, etc.) facing PNG, we must ensure that the matters raised by the Moti Affair are properly investigated. The image of the Office of Prime Minister has been tarnished.
Office of Prime Minister is separate from Sir Michael Somare
The Office of Prime Minister is the top most leadership position in PNG.  It belongs to the people of PNG. It does not belong to an individual.
An individual occupying the Office of Prime Minister must be the first to respect the Office. If any wrong doing is alleged against the person occupying the Office, and the allegations made are serious, the person holding the Office must, at the least, step aside as Prime Minister and allow investigations to be conducted. To not to do so is to bring the Office of Prime Minister into disrepute, damage its image and set a bad example of leadership down the line.
The Ombudsman Commission’s report on the Moti Affair highlighted breaches of a number of laws. They are serious in two respects. One, the laws broken are important laws. Two, the Ombudsman Commission report’s findings raise allegations that require further investigation by relevant authorities without being compromised, real or apprehended.
For the appropriate authorities to conduct the investigations without the appearance of influence by Sir Micheal Somare remaining in the Office of Prime Minister, Sir Michael Somare ought to step aside to allow these investigations to be conducted. There is already a perception in the minds of many Papua New Guineans that any investigations will come to nothing because Sir Micheal Somare is the Prime Minister. This is a bad indictment on the rule of law in PNG.
Serious allegations against Sir Michael Somare in the Moti Affair
The single most serious allegation made against Sir Michael Somare is that he gave directions for Julian Moti to be removed from PNG whilst judicial processes were still in play.
In its 2009 Report, the Ombudsman Commission said that, from evidence available to it, in its opinion, Sir Micheal Somare gave the direction for Julian Moti to be removed from PNG to Solomon Islands. Sir Michael Somare has denied giving such a direction.
Whether or not Sir Michael Somare did or did not give the direction must be determined by the appropriate authorities. The Ombudsman Commission has formed the view that Sir Michael Somare gave the direction. Sir Michael Somare says he did not. Sir Michael Somare is not guilty of anything. But, he stands accused by a competent constitutional office – and the accusations are serious. Sir Michael Somare ought not to occupy the Office of Prime Minister until he is cleared.
But the Ombudsman is not the only body that has reached this conclusion. A defence force inquiry in 2007, headed by a senior judge, reportedly made similar findings as the Ombudsman Report. Sir Michael Somare took court action to stop the release and publication of that inquiry report in late 2007.
To protect the good name of the Office of Prime Minister, to establish better standards of ethics in leadership, and to remove any perception in the minds of Papua New Guineans that he will influence investigations by relevant authorities; respecting the people’s Office of Prime Minister, Sir Michael Somare ought to step aside. There is good example of this. Sir Julius Chan stepped aside as Prime Minister to allow an inquiry to be conducted in the Sandline Affair.  Here, the situation is more serious, in that, the Ombudsman Commission has already formed the view that Sir Michael Somare gave a direction that led to breaches of a number of laws.
What are the Ombudsman Commission’s findings? On the mid-night to early morning of 10 October 2006, Julian Moti was flown out from Port Moresby to Munda in the Solomon Islands in a PNG Defence Force (PNGDF) aircraft.
·         On 30th September 2006, the District Court had revoked an earlier warrant for Julian Moti to be released and ordered that Mr. Moti be arrested and detained. If Sir Michael Somare gave directions for Julian Moti to be taken out of PNG, as the Ombudsman Commission concluded, this was a direct violation of the orders of the District Court. This is serious because it is contempt of court and brings into conflict the separation of powers – between the judiciary and the executive government.
·         The flight from Port Moresby to Munda was not approved by the civil aviation authorities as required by laws applying to aircraft flights. These laws were broken. It was also dangerous. The airfield at Jacksons airport was not lighted, and the PNGDF aircraft flew out at 1:00am in the dark.  Breaches of these laws implicate Sir Michael Somare if he gave the direction for Julian Moti’s removal as the Ombudsman Commission concluded.
·         Only the National Executive Council has the power to direct the PNGDF to undertake missions such as that involving the flying out of Julian Moti from PNG to Solomon Islands. If Sir Michael Somare gave the direction, as the Ombudsman Commission concluded, this was a breach of laws that apply to the PNGDF.
·         Police were also directed by government officials not to arrest and detain Julian Moti as ordered by the Court. This is an interference in the independence of the Royal Papua New Guinea Constabulary and itself a contempt of court.
The breaches of these laws are serious, and they must be properly investigated. And, Sir Michael Somare stands accused in these serious breaches.
Attack on the Ombudsman Commission
Like the office of the Prime Minister, the Ombudsman Commission as an institution belongs to the people of PNG. It is an important office established by the Constitution of PNG.
In statements made in Parliament and published in newspapers, Sir Michael Somare criticised the Ombudsman Commission’s report “stupid and disappointing” and its contents as reflecting “very poorly of the integrity and objectivity of the Ombudsman Commission in the conduct of its duties”.
Already, this criticism of the Ombudsman Commission demonstrates why Sir Michael Somare ought to step aside as Prime Minister and allow those investigations to establish whether or not Sir Michael Somare is guilty of what he has been accused of. The people’s Office of Prime Minister cannot be used, by the person occupying it, to attack an important constitutional office like the Ombudsman Commission that also belongs to the people of PNG. The Ombudsman Commission findings were against Sir Michael Somare as an individual, not the office of Prime Minister.
Other events which have taken place before and since the Ombudsman Commission’s report into the Moti Affair raise serious questions as to whether Sir Michael Somare (as Prime Minister) is unfairly prejudiced against the Ombudsman Commission.
·         The Maladina sponsored amendments to the Constitution and the Organic Law on Duties and Responsibilities of Leadership have been controversial. There is suspicion that these important legislative measures, some parts of which will cut down the powers of the Ombudsman Commission, are being handled with prejudice by the Government that Sir Michael Somare leads.
·         The Chief Ombudsman, Chronox Manek, was attacked by criminals recently and it has been said that it was an attempt on his life. Neither the Prime Minister nor any other Minister condemned the attack.  The perception is reinforced that Sir Michael Somare and his Ministers are prejudiced against the Ombudsman Commission and are unable to do what is required of them as leaders – to speak out against such attacks to protect individuals who work in public institutions which involve risks.
·         Sir Michael Somare stopped the publication of the Defence inquiry report headed by Justice Gibbs Salika. Not only did this discredit a senior judge of the third arm of government, the judiciary, but the perception remains that Sir Michael Somare stopped the inquiry to protect himself.
Do the Ombudsman Commission’s conclusions made on Sir Michael Somare in the Moti report have basis?
Anyone who has read the Ombudsman Commission’s report of the Moti Affair will see that the Ombudsman Commission’s conclusion that Sir Micheal Somare gave the direction for Julian Moti to be flown out of PNG came from one person’s evidence – the evidence of the late Joseph Assaigo, then Director-General of Office of Security Coordination and Advisory. Assaigo told the Ombudsman Commission that Sir Michael Somare’s then Chief of Staff Leonard Louma told him (Assaigo) that the Prime Minister wanted Julian Moti to be removed from PNG, and Assaigo and then Chief Secretary Joshua Kalinoe were to do this.
Assaigo’s was the only evidence stating to the effect that Sir Michael Somare gave the direction for Moti to be taken out of PNG. There was no other evidence. Assaigo was a lawyer and a public servant for many years.
However, two critical people did not give evidence to the Ombudsman Commission. They were Leonard Louma and Joshua Kalinoe. The Ombudsman Commission wanted their evidence but, on the specific matter of the removal of Moti from PNG to Solomon Islands, Sir Michael Somare stopped Leonard Louma and Joshua Kalinoe from giving evidence to the Ombudsman Commission. This, Sir Michael Somare did, by using Section 19 of the Organic Law on Ombudsman Commission, which permits a Prime Minister, after consultations with the Ombudsman Commission, to certify that giving information on a subject matter would prejudice the security, defence or international relations of PNG; or giving information would involve disclosure of proceedings, deliberations or decisions of the National Executive Council.  
The use of Section 19 by Sir Michael Somare in this way raises more questions. The first is - why did Sir Michael Somare prevent Leonard Louma and Joshua Kalinoe from being questioned by the Ombudsman? Second, by using the power given to the Prime Minster by Section 19, some may say that Sir Michael Somare had something to hide and did so to protect himself. This is another example of why the individual occupying the Office of Prime Minister must be separated from the Office of Prime Minister. Otherwise, the actions of the individual will result in illegitimate exercise of the powers, functions and damage the image of the people’s Office of Prime Minister.
Parliament is neglecting its duty to scrutinise the executive government
On 10 March 2010, the Parliament rejected the Moti Affair report submitted by the Ombudsman Commission.  The manner of the presentation of the Report was questioned by certain Members of Parliament (MPs).  Would the Report have been tabled if it was given to the Government to table? Chances are that it would not have been allowed because of the complete control and subjugation of the Parliament by the executive.
Members of Parliament completely abrogated their responsibilities as members of the legislature to examine and debate the Report and its findings properly. MPs did a complete disservice to the people of PNG.
Very serious breaches of the country’s laws were alleged. The Prime Minister was accused of breaching these laws by the Ombudsman Commission. Instead of taking these issues seriously and examining the conduct of the executive, the Parliament rejected the Report. What is the role of Parliament if it cannot inquire into questionable actions of the executive? What is the role of MPs? In the recently concluded sitting of the Parliament, nothing was mentioned of this serious issue. It has prompted me to write this.
The Parliament is fast losing its legitimacy. That legitimacy does not come from those elected exercising power given in elections but from the people. If the people perceive that Parliament is not doing what it should be doing (including supervising the executive government), the people have the right to ask that Parliament must disband itself. MPs must not take the people of PNG for granted.
What is my interest in raising these matters?
I raise these issue as a citizen concerned about the state of poor governance in PNG – evidenced by gross mismanagement, corruption, bad ethics and poor standards of leadership, and serious challenges to the rule of law. As a lawyer interested in public policy issues, I feel obliged to do this since most professionals and professional organisations have been silent on important issues of governance in this young country in general and, more specifically, the rule of law in particular. It would be dishonest of me if I did not do this.
The Moti Affair raised serious breaches of the laws of PNG. And the country’s Prime Minister has been implicated in criminal conduct.
No one else can set the tone and standard of leadership than the Prime Minister. The country’s Prime Minister must be seen to uphold the laws of the country.
The perception that there is one set of laws for the poor and weak, and another for the rich and powerful must be corrected. The important principle that everyone is equal before the law must be upheld and be seen to be promoted especially by the top leaders of the country.
I am not a politician. I have never supported any political party. My only interest is simply this - I am concerned about the poor state of the country in terms of governance and the rich and powerful not respecting the rule of law. The standard of ethics, of leadership example, and the values that we the current generation in control of PNG’s affairs are cultivating and setting for the young people, is very poor.
Sir Michael Somare can correct this by doing the right thing now – by stepping aside as Prime Minister and allow the accusations made against him in the Moti Report to be fully investigated by relevant authorities without fear of repercussions on the part of those whose job it is to do so, real or apprehended. The person who gave evidence of Sir Michael Somare giving the unlawful directions, Joseph Assaigo, has passed on. The other persons who can give evidence to relevant authorities are Leonard Louma and Joshua Kalinoe. Sir Michael Somare ought to step aside as Prime Minister, allow these two men to fully cooperate with the law enforcement agencies so that those who broke the law can be properly dealt with. Otherwise, the breaches of these laws will be forgotten, like many others in the past. Where then is the rule of law? Should we pretend that these things never happened? We cannot. Julian Moti was in PNG. Some individuals broke PNG’s laws and removed him clandestinely from the country. They must be dealt with!
The people have the right to demand, as we did during the Sandline crisis against the then Prime Minister Sir Julius Chan, that Sir Michael Somare step aside as Prime Minister.

John Nonggorr
Mt Hagen

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