Tuesday, December 13, 2011

Judges’ decisions

Source: Post Courier, December 13, 2011
By GORETHY KENNETH
PAPUA New Guinea’s five men-bench led by Chairman and Chief Justice Sir Salamo Injia presented their decisions with presentations of their statement of facts when the Special Reference on the removal of Sir Michael Somare and appointment of Peter O’Neill as Prime Minister was being heard.
The Special Reference convened at exactly 2:230pm and ended just after 6:30 pm last night.
Led by Sir Salamo, Deputy Chief Justice Gibbs Salika and Justices Bernard Sakora, Nicholas Kirriwom and Les Gavara-Nanu, below is the short summary of their presentations.
CHIEF Justice Sir Salamo Injia:
That the honourable Sir Michael Somare is restored to office as the Prime Minister of Papua New Guinea forthwith. The decisions of the Parliament made on 2 August 2011 to declare a vacancy in the Office of the Prime Minister held by the honourable Sir Michael Somare purportedly under s 142 (2) and Schedule 1.10 (3) of the Constitution and to appoint Honourable Peter O’Neill as the new Prime Minister purportedly under s 142 (3) or (4) and which decisions were given effect to by the Head of State and gazette in the National Gazette, are declared unconstitutional and therefore invalid, effective from date of this judgment. The decision of the Speaker of Parliament Jeffery Nape to inform Parliament that Sir Michael ceased to hold office as the Member of East Sepik Provincial seat is declared unconstitutional and therefore invalid, effective from date of this judgment.
Deputy Chief Justice Gibbs Salika:
As discussed earlier, there is no Constitutional Law prohibition for such a motion to create a vacancy in the office of the Prime Minister to be moved in Parliament. It is in my respectful opinion therefore that what took place in Parliament are internal procedures of parliament and are not subject to the scrutiny of the Court. Having said that the net effect is that a vacancy was created on 2 August, 2011 in the position of Prime Minister by Parliament and that occasion for a vacancy in the office of the prime minister are not limited to circumstances enumerated in s. 142 (5), s. 143, s. 146 and s.147 of the Constitution. In relation to the issue of unsoundness of mind under s. 103 (3) (b) of the Constitution, Sir Michael was of sound mind. Sir Michael is still a Member of Parliament.
Justice Bernard Sakora: Justice Bernard Sakora adopted Deputy Chief Justice Gibbs Salika’s decision and his statement will be published officially today.
Justice Nicholas Kirriwom:
For all these foregoing reasons, I answer the Referrer’s five questions as follows:
Q: Was there a vacancy in the office of the Prime Minister n 2 August, 2011 within the meaning of Constitution section 142?
A: No. there never was.
Q: Was Honourable Peter O’Neill MP validly appointed to the office of the prime minister on 2 August, 2011 pursuant to Constitution section 142 (2) Schedule 1.10 (3) or at all?
A: No. There can be no valid appointment of another Prime Minister without there being valid removal of Sir Michael Somare as the current Prime Minister.
I say that the change of Prime Minister is a serious breach of the Constitution. People are blinded by hunger for power. It is to me a repeat of the re-election of Governor-General Sir Paulias Matane. It follows therefore that Sir Michael remains as Prime Minister.
*Justice Les Gavara-Nanu: The end result is that, no occasion for the appointment of Prime Minister arose on 2, August, 2011 under the second leg of s.142 (2) of the Constitution. The first intervener and those aligned with him, in particular, Mr Namah have up to now failed to prove that an occasion for the appointment of a Prime Minister arose or that a vacancy in the office the Prime Minister did exist on 2 August, 2011. It therefore follows that the appointment of Mr O’Neill as Prime Minister on 2 August, 2011 was unlawful and unconstitutional. In the result, I find that Sir Michael is the legitimate Prime Minister.
Justice Les Gavara-Nanu: The end result is that, no occasion for the appointment of Prime Minister arose on 02, August, 2011 under the second leg of s.142 (2) of the Constitution. The first intervener and those aligned with him, in particular, Mr Namah have up to now failed to prove that an occasion for the appointment of a Prime Minister arose or that a vacancy in the office the Prime Minister did exist on 2 August, 2011. It therefore follows that the appointment of Mr O’Neill as Prime Minister on 2 August, 2011 was unlawful and unconstitutional. In the result, I find that Sir Michael is the legitimate Prime Minister
Political impasse
ARMED policemen loyal to one of the sides in the prime ministerial tussle, outside Government House last night. For several hours Mr O’Neill and his ‘Cabinet’ were prevented by police to enter Government House. Mr O’Neill went there to be sworn in. Governor-General Sir Michael Ogio would not be drawn into entertaining either side, opting to wait until today to seek legal advise on who is indeed prime minister. Several rounds were fired to control the crowd at the gate as Mr O’Neill and his team finally forced their way into Government House for the signing that never took place. The stand-off ended at about 11pm.
Supreme Court orders Chief resume as PM
By TODAGIA KELOLA
THE Supreme Court by majority decision yesterday restored Grand Chief Sir Michael Somare as Prime Minister.
The 3-2 decision ordered that Sir Michael assumes the top executive post forthwith, rendering Peter O’Neill’s election as Prime Minister by Parliament on August 2 null and void.
The court also ruled three to two that Sir Michaels dismissal as a member of Parliament by the Speaker was unconstitutional and that he is still the Regional Member for East Sepik.
In a ruling that lasted for nearly four and a half hours, from 2pm to 6.30pm each member of the bench comprising the five most senior judges of the country, Chief Justice Sir Salamo Injia, his deputy, Gibbs Salika, and Justices Bernard Sakora, Nicholas Kirriwom and Les Gavera Nanu each gave their own verdicts and reasons for their decisions.
The three that ruled that the election of Peter O’Neil as Prime Minister was unconstitutional were the Chief Justice Sir Salamo Injia and Justices Kirriwom and Gavera Nanu.
The two who ruled that the election was constitutionally correct were Deputy Chief Justice Gibbs Salika and Justice Bernard Sakora.
The three who ruled that it was unconstitutional, found that there was no vacancy in the office of the Prime Minister in that the Constitution clearly spells out when a vacancy in the Office can arise.
They pointed out that the Constitution was clear on the ways or situations which give rise to a vacancy in the office of the Prime Minister and makes deliberate provisions for the grounds and the fulfillment of conditions which gives rise to a vacancy in the office of the Prime Minister.
They were also satisfied that Parliament lacked inherent powers to create a vacancy rendering their actions unconstitutional and invalid.
On the issue of Sir Michael’s dismissal as MP the three judges, while agreeing that the NEC at that time “miserably failed to inform the country and the Parliament’’ on Sir Michaels health, the Speakers decision was unconstitutional.
Deputy Chief Justice Gibbs Salika and Justice Bernard Sakora in ruling in favour of Peter O’Neill’s election found that it was within Parliament’s internal procedures which was not subject to the scrutiny of the court.
On the question of Sir Michael’s dismissal Justice Salika agreed that Sir Michael’s dismissal was wrong in that he had only missed two sittings.
Chief Justice Sir Salamo Injia in concluding as the chairman of the bench said an opinion given by the court on the interpretation and application of a provision of constitutional law was binding. As such the court had the inherent powers to make orders in the nature of declaratory orders or injunctions to give effect to its opinion.
The court then ordered that;
1. Sir Michael Somare was not lawfully removed from Office as Prime Minister by Parliament on August 2 2011,
2. Peter O’Neill was not lawfully appointed as Prime Minister by Parliament on August 2, 2011,
3. The National Court has exclusive jurisdiction as to whether the seat of a member has become vacant,
4. The Speakers decision of September 6 2011 to declare that Sir Michael had lost his seat was in breach of Constitution ss 104(2)(d) s 135 and ss28 and 29 of the Organic Law on National and Local Level Government Elections.
5.Sir Michael is not a person of unsound mind within the meaning of s 103(3)(b)of the constitution and the Public Health Act
6. Sir Michael Somare is restored to office as Prime Minister forthwith.
Parliament moves to firm up O’Neill as PM
By JONATHAN TANNOS
PETER O’Neill yesterday evening quickly put himself “back into office’’ in a 69-0 vote on the floor of Parliament just before the Supreme Court nullified his August 2, 2011 election as Prime Minister.
And this was pivoted through a prior surprise and unchallenged amendment to the Prime Minister and National Executive Council Act Section 143 just after 11am.
The changes include formally recognising a vacancy existed on August 2, 2011 when Mr O’Neill was elected into office “by virtue of Sections 3 and 4 of this Act as having been lawfully and validly declared effective from the time it was declared”.
“The election by Parliament of a new Prime Minister Peter O’Neill on August 2, 2011 is valid and effective and shall be treated by virtue of Sections 3 and 4 of this Act as having been validly elected from the time the new Prime Minister Peter O’Neill was elected.”
Again the Speaker, Jeffery Nape, was directing traffic to allow Health Minister, Jamie Maxtone-Graham, to nominate Mr O’Neill as Prime Minister seconded by National Planning Minister, Sam Basil.
The amendments also relate to appointment of an Acting Prime Minister, giving the Prime Minister three months to return to the country or face automatic suspension from the office. In that instance, the Speaker will inform Parliament of the vacancy and a new Prime Minister is appointed.
The changes also include medical practitioners to provide a joint report and certification of the Prime Minister’s health without conducting any physical examination based on their professional opinions and on reports of those who had treated the prime minister.
Effects of the amendments are also deemed to have taken effect from January 1, 2011.
The vote seemed to have just been a formality in anticipation of the Supreme Court ruling. Absent during the vote were Deputy Prime Minister, Belden Namah, Attorney-General, Dr Alan Marat, and New Ireland Governor, Sir Julius Chan. Both were appearing before the Supreme Court over contempt charges while Sir Julius was not in the chamber.
The re-election came after a prolonged debate on the 2012 budget where most MPs were allowed to have their say, mainly in the affirmative, on the structure and increased allocations for major projects in the K10.5 billion expenditure bill.
Those that voted were the only ones in the chamber at that time and with the exception of members of the Somare government who were awaiting the Supreme Court reference ruling
.
G-G under siege
By STAFF REPORTERS
Heavily armed policemen – believed to be members of the newly formed armed robbery squad - laid siege to the historical Government House, located in Konedobu, Port Moresby, last night.
This was the anti-climax to the drama that unfolded separately yesterday in Parliament and the Waigani Court House, where the Supreme Court nullified the August 2 election of Peter O’Neill as Prime Minister, only for Mr O’Neill to use his Government’s numerical strength to get re-elected as PM on the floor of Parliament.
The police blockage of Government House was led by former deputy police Commissioner Fred Yakasa.
While there was no clear motive for Mr Yakasa and his band of renegades, it appeared the police were there to stop either men – Mr O’Neill or court reinstated Prime Minister Sir Michael Somare – from going to Government House to get sworn in.
A standoff ensued from 7pm when Mr O’Neill and a group of Ministers arrived at Konedobu where they found their way blocked by the Yakasa group.
The policemen, armed with AR15 rifles stopped Mr ONeill and his party, including Ministers Bart Philemon, Don Polye, William Duma, Charles Abel, Theo Zurecnuoc, Lucas Dekena, Job Pomat, Sali Subam, Waka Goi and their motorcade.
The standoff continued for more than two hours. During that time, the Governor- General Sir Michael Ogio tried to broker a deal between the two parties but it did not work. At 10.30pm, Mr O’Neill called all his ministers together and told them that they were walking through.
With him and Mr Philemon at the lead, the ministers walked through the police blockade and where he was challenged by Mr Yakasa.
In the process, Mr Yakasa laid his hands on Mr O’Neill, sparking off an angry exchange between the policemen escorting Mr O’Neill and those with Yakasa.
As soon as Mr O’Neill and Mr Philemon broke through, everyone ran for the State House.
About 10 minutes from the first gate, all hell broke loose, and police fired several rounds from their AR 15 rifles.
The shooting forced the ministers and their staff to take the hill to the State House at a run and by the time they reached the top, all of them were clearly sweating and out of breath.
Once at the State House, the ministers settled down on the chairs to get their breath back and waited for the Governor-General.
After an hour, word reached the team that the GG wanted to see the instruments of the re-election of Mr O’Neill.
Mr O’Neill’s Chief of Staff, Ben Micah, went to see the GG but he was prevented by fully armed policemen.
The stand off continued until Mr O’Neill and some of his ministers went over to gain entry with Mr Micah.
Mr O’Neill was stopped by the armed policemen at the door and the standoff continued until the GG sent word that the swearing in will take place today.
By 11.30pm, Mr O’Neill and his team left to take up the fight another day.
It is expected that Mr O’Neill and his team will go back but what transpired last night will go down in history as this is the first time, the State House was seized by armed members of the police force.
Meanwhile, the Australian deputy high commissioner, who was at the scene of the standoff, was harassed by police who threatened him.
The Australian managed to get in his DC marked car and was driven to safety by his PNG driver.
Sir Michael names Cabinet
*Sam Abal, (Deputy Prime Minister and Immigration);
*Patrick Pruaitch (Treasury and Finance & State Owned Enterprises);
*Sir Arnold Amet, (Justice & Attorney General and Public Service);
*Sasa Zibe, (Health & HIV/AIDS and Inter Government Relations);
Tim Bonga, (Forestry & Internal Security);
*James Marape, (Education, National Planning and District Development);
*Benjamin Poponowa, (Transport and Civil Aviation);
*Philip Kikala, (Agriculture & Livestock);
*Paru Ahi, (Higher Education, Research Science & Technology and Foreign Affairs & Trade);
*Fidelis Semoso, (Bougainville Affairs);
*Patrick Tammur, (Communication & Information);
*Francis Potape, (Petroleum & Energy);
*Ben Semri, (Fisheries and Commerce & Industry);
*Tony Aimo, (Correctional Services, Lands & Physical Planning);
*Andrew Kumbakor, (Housing & Urban Development);
*Philemon Embel, (Sports and Minister Assisting the Prime Minister);
*Bob Dadae, (Defence);
*Dame Carol Kidu, (Community Development) and
*John Pundari, (Mining).
*Anderson Agiru, as the Minister for Works and Conservation & Environment.

Somare still NA leader
By PORENI UMAU
RESTORED Prime Minister, Grand Chief Sir Michael Somare said last night that he is still the leader of the National Alliance Party.
At a press conference at 10 pm last night, following his victory of the Special Supreme Court Reference earlier at 6pm yesterday, Sir Michael said that he is the duly elected leader of the ruling party.
He shrugged off questions about the other party members who decamped and joined the former O’Neill–Namah regime, saying that the party had constitutions to follow and was not bothered with their departure. “They can go. Some of them have been terminated and we do not need them,” Sir Michael said.
He said that they decided to leave at their own accord, saying that it was their individual decisions to leave and said that it was up to them to side with other political parties.
Meanwhile, Attorney General and Public Service Minister Sir Arnold Amet said they were not bothered with continuous contentions by Don Polye as the party’s leader and were not bothered to make any public statements.
He said that Mr Polye was already expelled from the party
Sir Michael assumes role with ease
By JONATHAN TANNOS
GRAND Chief Sir Michael Somare is at ease and comfortable in assuming his role as Prime Minister of the country.
Sir Michael told a press conference last night he was ready to take the lead and he will begin by chairing his first Cabinet this morning.
This was his first as Prime Minister again since being hospitalised from April to July and his return in September when he was disqualified from Parliament by Speaker, Jeffery Nape. Yesterday the Supreme Court reinstated him as Prime Minister.
He was flanked by members of his cabinet and supporters at the Ela Beach Hotel where he is operating.
“I have had four heart operations and I am now fit,” he said of his physical condition.
“I’m old enough to be a 40-year-old again,” he joked mentioning his 76 years and after certification by five doctors in Singapore.
Sir Michael said he would see his term right through to the 2012 elections. On the question of numbers to remain in government, Sir Michael said it was up to Members to realise they owed their people fulfilment of their election promises.
He said he expected commonsense to prevail once the situation over the Constitutional matters now ruled over by the Supreme Court were clearly explained to them.
He said Members had an obligation to bring development to their people instead of making empty promises.
With Sir Michael also was his deputy, Sam Abal, who called for leaders to respect the decision by the Supreme Court. “It is important for leaders to acknowledge the decision by the Supreme Court and not continue with illegal acts,” he said.
Justice Minister and Attorney General, Sir Arnold Amet, added that the 2012 budget yet to be passed would be reviewed by the new government. “Cabinet will meet and review the budget and key decisions and legislations,” he said.

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