Acting PM denies himself a portfolio

Acting PM denies himself a portfolio

By TODAGIA KELOLA

ACTING Prime Minster may have self-destructed himself when he did not allow himself a ministry during his recent major reshuffle of Cabinet.
Under the Prime Minister and National Executive Council Act 2000, the Acting Prime Minister ceases to hold office when he/she ceases to be a minister.
Realising the seriousness of the situation, government advisers are now frantically looking for ways to fulfill the legal requirements and create a new ministry for Mr Abal.
Mr Abal was Works Minister when he was appointed Deputy Prime Minister by Prime Minister Sir Michael Somare. When Sir Michael went to hospital in Singapore for his heart surgery, Mr Abal became Acting Prime Minister during which time he sacked two ministers and in the process of shuffling his Cabinet portfolios, he gave away his Works job to Peter O’Neill.
And by operation of law, the country was without an Acting Prime Minister since last week.
A private lawyer and former National and Supreme Court judge Nemo Yalo pointed out the seriousness of the situation in a media statement yesterday.
“The Office of the Deputy Prime Minister is established under Section 3(1) of the Prime Minister and National Executive Council Act 2002. He is appointed by the Head of State acting on advice of the Prime Minister. The Deputy Prime Minister loses his office under three scenarios stipulated under Section 3(3) of the Act. These are removal by the Head of State acting on advice from the Prime Minister or when he ceases to be a Minister or when he resigns from office.
The specific words of Section 3(3)(b) of the Act are: “The Deputy Prime Minister ... ceases to hold office if he ceases to be a Minister”.
The acting Prime Minister ceased to be the Minister for Works effective on June 22, 2011 when he relinquished his ministerial portfolio to Peter O’Neill.
A gazettal notice No G163 of June 22, 2011 shows Mr Abal’s amendments to the Determination of Titles and Responsibilities of Ministers. But the Governor-General’s decision based on that advice is not published in the National Gazette. “However, his intention is complete. Mr Abal currently holds no other ministerial portfolio so by operation of Section 3(3)(b), Mr Abal appears no longer the Deputy Prime Minister effective from 22 June 2011,” Mr Yalo said.
“The Prime Minister appointed Mr Abal as Acting Prime Minister under Section 4 of the Act. If the Prime Minister were not to make that appointment before he fell ill, Mr Abal would still have automatically assumed the position of Acting Prime Minister by operation of Section 4(1)(c) of the Act. This provision states that: “Subject to Subsection (2), when ... the Prime Minister is (i) absent from the country; or (ii) out of speedy and effective communication; or (iii) otherwise unable or not readily available to perform the duties of his office, the Deputy Prime Minister is the Acting Prime Minister”.
“Effective as of 22 June 2011, Mr Abal ceased to be the Acting Prime Minister because he is no longer the Deputy Prime Minister. Mr Abal has voluntarily removed the soil and the foundational rock on which the Acting Prime Minister’s feet were firmly placed. There appears nothing in law now keeping him upright as the Acting Prime Minister.
“If Mr Abal wishes to remain the Deputy Prime Minister and therefore the Acting Prime Minister, he must reverse his decision and retain his Ministry of Works. He must immediately advice the Head of State not to execute his advice,” Mr Yalo said.
And he strongly recommended that this is the time when the executive leadership deserves the best legal advice. In my view, “politics and law are two separate streams that should run parallel in the channel of public interest, the former running along subject to the latter and not otherwise, both running ultimately to the sea of public benefit”.

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Report: K1.2 billion missing, MPs named

News	Monday 4th July, 2011

Report: K1.2 billion missing, MPs named

By SIMON ERORO

Certain Ministers and senior bureaucrats have been named in a report that forms part of the Department of National Planning and Monitoring Secretary, Joseph Lelang’s affidavit now before the National Court.
The copy of the affidavit obtained by Post-Courier highlights that about 90 per cent or K1.2 billion of the total of K2.1 billion direct PNG Government funding for its development budget has allegedly gone missing in the three months when Mr Lelang was out on suspension. Philemon Was Korowi, from Philemon Korowi Lawyers who is representing Mr Lelang in court, confirmed that the national fraud squad will provide its own report to the court.
In the report, the total 2011 development budget stands at K4.2 billion of which K2.1 billion is direct funding from the National Government while the balance comprises foreign aid monies with almost 75 per cent of these coming from AusAID.
The report, which highlights alleged massive corruption within the department, states that K1.9 billion was the total warrant authorities which was issued by the Department of Treasury of which K735 million in project monies are placed under trust accounts held by the Department of Finance.
The report states that the Department of Finance will be responsible for funding development projects directly and that the remainder of K1.2 billion was released to projects by DNPM over the three months from March – May, 2011. There has been abuse of project screening and planning processes and that officers of the DNPM had been directed and pressured to make sure that they manipulated the appraisals of projects to pass the screening criteria so that they are eligible for funding, the report states.
The report highlights that the investigation established that certain payments were made to companies which were allegedly linked to senior officers at the Department of National Planning. Further checks with the bank records as to the signatories to these company accounts show actual names of the department officers and bank transactions of payments to certain individuals and politicians, the report states.

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Somare, Pruaitch out

Somare, Pruaitch out

By PETER KORUGL

TWO senior ministers facing leadership tribunals were suspended from office last Friday by operation of a Supreme Court ruling that leaders referred to a tribunal must step down from office with immediate effect.
Public Enterprises Minister Arthur Somare and Finance and Treasury Minister Patrick Pruaitch, both facing separate leadership tribunals over misconduct charges, were automatically suspended from office by a three-member Supreme Court bench.
The leadership tribunal investigating Mr Somare’s alleged misconduct in office charges starts today while Mr Pruaitch’s case is pending before a National Court.
The Supreme Court also ruled that any move to take out court injunctions against leadership tribunal proceedings are viewed as abuse of process and should be declined without exception.
And if the Minister for Bougainville Affairs, Fidelis Semoso, is also referred to a Leadership Tribunal by the Public Prosecutor, he will also be suspended from office.
The Supreme Court decision last Friday clarified that the Constitution was specific that all public office holders except for the Prime Minister and a few others, are automatically suspended from office when they are referred to a leadership tribunal.
The Ombudsman Commission and the Public Prosecutor’s Office are expected to write to the two MPs to inform them of the judgement today and its effect.
Deputy Chief Justice Gibbs Salika, Justice Nicholas Kirriwom and Justice Ambeng Kandakasi clarified the operations of the law on the suspension of leaders facing misconduct charges when dismissing the constitutional reference filed by Prime Minister Sir Michael Somare on the powers of the Ombudsman Commission to investigate and refer leaders in April this year.
In its deliberations, the Supreme Court reviewed two earlier decisions it made in the Patrick Pruaitch case, in which in the earlier decision, the same court suspended Pruaitch but this was overturned in the second judgement when the same matter returned to the same court.
“In developed democracies, people who hold public office, who become the subject of allegations and investigations for any misconduct in office, readily either resign or step aside to allow for the investigations and the due process of the law to take its course. They do this out of respect for themselves, the integrity of the office they hold and respect for the due process of law,” the Supreme Court ruled.
The court ruled that the tradition of voluntary stepping down in the light of allegations and accusations of misconduct in office or criminal conduct of a public office holder became part of PNG’s democracy and tradition.
It cited two cases involving sitting MPs stepping aside, the first being Opai Kunangel and then Sir Julius Chan.
“It is becoming a norm for most leaders in PNG who are subject of allegations and investigations for misconduct in office or criminal offences to continue to occupy their offices and are readily applying for injunctive orders,” the court ruled.
“Some of them are interfering into the proper conduct of investigations. Others are doing everything they possibly can to remain in office, continue to function and in most instances are either committing more misconduct in office from tampering with evidence, interfering with witnesses, swindling of funds or abusing their powers knowing that they may not last long in those offices.”
The court touched on the first case involving Pruaitch and reaffirmed what the first judgment highlighted about duly appointed tribunals being left frustrated and unable to perform.
“This will make a mockery of the Leadership Code, particularly the work of the Ombudsman Commission in enforcing the Leadership Code. The inquiries will continue to be stalled and the leaders whose integrities are already called into question will continue to discharge leadership responsibilities,” the court ruled.
The three-man bench upheld the ruling in the first Pruaitch case that a leader who is referred to a leadership tribunal is automatically suspended from office if the leader had not already stood down voluntary. The court stated that the decision in the second Pruaitch case did not refer to any authorities in the way the decision in Pruaitch case No. 1 did and arrived at the view that, the question of suspension does not arise until the charges and statement of reasons are presented to the leadership tribunal.
It observed that Pruaitch case No. 2 did not refer, discuss and demonstrate how various authorities and provisions of the Constitution and the Organic Law on the Duties and Responsibilities of Leaders Decision No. 1 referred to and relied upon, were wrong and therefore no good law for them to follow.
The court also ruled that Pruaitch case No. 2 failed to note that the Constitution provides for automatic suspension of leaders that were subject of investigations and referred to a leadership tribunal except for the Prime Minister and others covered under specific provisions, given the importance of the office they held.

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Editorial - The National

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Better to reinstall Polye, Duma

Source: 

The National – Monday, June 20, 2011

ONCE upon a time, Western Highlands politics used to impact nationally in the days when the power was held firmly by then prime minister Paias Wingti and when the late National Party leader, Paul Pora, refused stoutly to share government with him.
It seems, today, the power base has shifted westward to Enga, a part of Western Highlands which got separate in 1974 to form its own district.
Today, Wabag MP Sam Abal wields the big stick and dangles the carrots that grow so well up in Sirunki and calls the tune.
There is a highlands saying that in a “ples singsing”, there is only one song leader and so that which divided the Western Highlands “haus man” once is repeating itself in Enga.
Abal has removed his distant cousin and Kandep MP Don Polye from his Foreign Affairs ministry which Sir Michael Somare had installed him at as one of his last moves before he went away for his extended medical treatment in Singapore.
While the move has not been entirely unexpected, it has created no little debate and consternation, not the least of which has been inside the National Alliance party itself. Perhaps in the heat of the moment Abal did not think through the consequences of his actions as deeply as he should have.
Polye is a deputy in the party, one of four representing the four regions of the country. He also happens to have the largest number of highlands MPs supporting him. Both of these positions entitles him almost automatically to claim the leadership of the parliamentary wing of NA should the position be vacated by incumbent, Sir Michael Somare.
That Polye does not now hold the position of deputy prime minister and the job of acting PM has much to do with Sir Michael’s choice, one that operated outside the constitution of his own party. In his wisdom, he decided that Abal, rather than heir apparent, Polye, ought to be his deputy and therefore to be the acting PM after him.
 Sir Michael decided in his wisdom that it was not yet time to hand over the reins of leadership to Polye while he was away for an extended time.
While he acted outside the NA constitution, his own action is not illegal. As prime minister, it is entirely his prerogative to appoint members of his ministry. That power is vested in him by the PNG constitution and, therefore, far superior to the party constitution.
But political parties must operate cohesively. They must obey the dictates of their own constitution and regulations and policies. To not do so would be to invite chaos.
Whatever the motives of Sir Michael, he did not remove Polye completely. He allowed him to be in charge of his highlands faction. He gave him a ministry – a fairly senior one – and one that surprisingly Polye has handled very well in the short stint he has had there.
He went in there with very little experience but he has done well to the extent that regional leaders have commented that they have been impressed by him.
In that sense, it has been a remarkably insightful choice by Sir Michael. It has given Polye the breadth, depth and scope of issues at the international level that will prepare him better for any senior role he might have in future, including that of head of government.
Polye is an ally to Abal, not the enemy.
Together they have captured Enga for the ruling party, and left Enga Governor Peter Ipatas with only one other seat out of Enga’s six. To fight now this close to the elections is bad for the National Alliance in the province.
That is a very bad situation to be in going into the elections.
Polye has not been totally respectful of Abal, a matter that may have led to his sacking. There are reports he (Polye) openly sided with William Duma, the sacked former petroleum and energy minister in cabinet, and challenged Abal in cabinet on MoA issues, left cabinet in a huff  and stormed back in to continue the challenge.
Let us remember that both men were said to have been sacked for “insubordination”.
Whatever the personal issues, the sacking of Polye has not gone down well with the rank and file of NA and with other NA regional factions as well. This will have led to the long delay in announcing replacements for the ministries.
We think Polye ought to be reinstalled in some capacity or in his old job. In the final analysis that will make Abal look good to have done a good rethink.
There will be no loss of face and it is the right thing to do by his party.
 

News	Thursday 30th June, 2011

How to make PM’s retirement legal

THE Government was supposed to have appointed two medical doctors to report back within 28 days on the condition of the Prime Minister Sir Michael Somare when he went into hospital for medical treatment and also heart surgery on April 21.
This is the view of a very senior legal officer in the Solicitor Generals Office. Had that been done, there would not be any confusion today on the way forward in relation to whether or not the office of the PM is vacant and when constitutional provisions should be invoked to elect a new Prime Minister.
“The proper and moral thing to do after the PM was admitted to the ICU, was to appoint two medical doctors to report within 28 days, pursuant to Section 6 of the Prime Minister and National Executive Council Act 2002, and after three months, they could then certify that the PM is medically unfit to return to office,” the lawyer said.
“That is to comply with the law, instead of allowing the PM to continue to hold the substantive post while in the sick bed,” and he paid tribute to the Somare family for going public on their decision for the Grand Chief to retire and allow the normal process to take its course.
He said the Constitution, supplemented by the Act, provided that when the PM is ill, “he is subjected to medical examination immediately, rather than treating it as another public servant on sick leave. The law is more concerned in the interest of the country”.
The following is the senior legal officer’s opinion with regard to the current situation PNG is faced with:
“There are six (6) instances where the position of the PM is permanently vacant and they are provided for under Section 147 of the Constitution:
* When he dies, or
* When he resigns by giving notice in writing to the Head of State pursuant to Section 146, or
* When he ceases to be qualified to be a Minister such as being unseated in a general election, or
* When he is dismissed from office through a vote of no confidence (ss. 142(5)(a) and 145), or
* When he is dismissed from office as a penalty for breaching the leadership code (Section 142(5) (b) and Division III.2), or
* When he is removed from office for being medically unfit (section 142(5)(c)).
“When the PM is dismissed in a Vote of No Confidence, that is the time when the person nominated as the alternate Prime Minister in the Motion automatically becomes the Acting PM until he is appointed PM by Parliament (Section 143 (2) of the Constitution). In all the other 5 instances, there is no other expressed provision for someone else to be the Acting PM apart from the Deputy Prime Minister who will assume that responsibility by operation of law, particularly section 143 (1) of the Constitution and section 4 of the Prime Minister and National Executive Council Act 2002. Both of these provisions provide a number of same instances, where an Acting PM can assume the office of the PM as Acting PM and they are:
(a) there is a vacancy in the office of Prime Minister; or
(b) the Prime Minister is suspended from office; or
(c) the Prime Minister is,
(i) absent from the country; or
(ii) out of speedy and effective communication; or
(iii) otherwise unable or not readily available to perform the duties of his office.
“Section 143 (1)(a) provides an instance where there is a permanent vacancy in the office of the PM as stated earlier. The combined effect of Sections 143(1) and 142 (1),(2),(3)&(4) of Constitution shows that when there is an instance of permanent vacancy in the office of the PM, Parliament must be immediately recalled by the Speaker to appoint a new PM.
“The first business of the day when Parliament meets after there is a permanent vacancy is to appoint a new PM (section 142 (2)). That also means that there can never be a Parliament session with an Acting PM, dealing with any other business without first appointing a PM to the substantive position. The scheme of legislation is such that it prevents an Acting PM to run the country when the mandated CEO of the country has vacated office permanently. The duration of the Acting PM is from the date of the permanent vacancy to the time of immediate appointment of the new PM.
“In relation to section 143(1)(b), the Acting PM assumes office when the PM is suspended from office. The suspension of the PM is provided under Section 142(6) where he can be suspended pending investigation by the tribunal or when he is suspended on medical reasons under Section 6 of the Prime Minister and National Executive Council Act 2002. If the PM is suspended by the tribunal, it does not take any longer than the period of hearing and determination. If the PM is on suspension pending medical examination then the time period is also specified. Over all, it is apparent that the scheme of legislation provide for the Acting PM to remain in office for a limited period.
The Current Situation
“The current situation is such that the PM himself did not make the decision to retire. Instead, it is the decision of the family due to his medical condition.
“The Prime Minister has not resigned because he is not capable of making that decision personally. As such, any decision made on his behalf by his family cannot be properly termed as resignation under Section 146 (1) of Constitution which provides for resignation.
“The Constitution does not provide for retirement procedures for retirement of the PM, nor does it provide for sick leave procedures.
“Two options are available for the PM’s:
n First is an instance where the PM and or a Minster ceases to be qualified as a minister. Under section 141(a) of the Constitution, there is only one qualification to be a Minister and that is being a Member of Parliament. It therefore follows that the PM can retire as the Regional MP for East Sepik Province which would effectively render the vacancy of the office of the PM under Section 147(1)(c) of Constitution.
n Secondly, the NEC should advise the Governor General to request the PNG Medical Board to appoint two medical practitioners to provide two medical report on the condition of the PM to be tabled in Parliament in accordance with Section 142 (5)(c) of Constitution and Section 6 of Prime Minister and National Executive Council Act 2002. Note that the latter Act provides a period of 3 months limit on the time allowable to test whether the PM can recover and if he does not within that period, Parliament can remove the PM under subsection (11) of that section.
“In the instant case, the PM’s family announced a retirement on behalf of the PM as the PM cannot coherently make a decision given his condition. If that position is to be allowed, then it takes the first option.
“The decision by the family can be taken as the PM retiring as the Regional MP of ESP. Otherwise, the most likely available option is the second one, where two medical doctors have to be appointed to provide a medical opinion.
“Note that the PM had been in hospital for more than three months which qualifies a final report in light of his condition as well as the family’s decision.”

News	Thursday 30th June, 2011

bal: Govt is stable

* No answer to possible crisis
* Sir J says Govt unstable
* Govt was wrong - lawyer

By Jonathan TanNos and Yehiura Hriehwazi

ACTING Prime Minister, Sam Abal, did not give a clear indication yesterday as to where PNG is headed in light of the Somare family’s expressed desire for their father and Grand Chief Sir Michael to retire completely from politics due to his serious medical condition.
Amid the confusion and political undercurrents, Mr Abal told leading corporate executives at Crowne Plaza Hotel that there was political stability in government which saw it through the 2012 General Elections despite rising and falling temperatures in Parliament.
But that stability was seriously questioned yesterday by another founding father of the nation, Sir Julius Chan (New Ireland Governor), who is now the only remaining MP who first entered the House of Assembly in 1968 with Sir Michael (Story on Page 2).
Former Deputy Prime Minister and Abau MP, Sir Puka Temu, also called on constitutional office holders like Electoral Commissioner, Registrar of Political Parties, Chief Ombudsman and Attorney General to come forward and tell the nation about what should happen next.
In the meantime, a senior government legal officer said two medical doctors should have been appointed to monitor the PM’s condition (Story Page 3).
Mr Abal played down the likelihood of a constitutional crisis and spoke of the political stability of the last 10 years and the Government’s achievements.
He said the stability was a record for the country from 2002 under the leadership of the Prime Minister, Sir Michael Somare, now undergoing medical treatment in Singapore.
Mr Abal was speaking during his opening address delivered to chief executive officers of State-owned enterprises in their one-day consultancy review at the hotel. He paid tribute to Sir Michael following the announcement by his son and Minister for State Enterprises, Arthur Somare, on Tuesday of the family’s decision to retire him from office.
Mr Abal said following the announcement on Tuesday, numerous calls from people in all walks of life had poured in, adding “it is nice to know the feelings of our people towards our leader”.
He told the CEOs that the Government would remain until the next elections “although we’ve had temperatures rising and dropping on the floor of Parliament”.
He said there were already political rumblings following the Tuesday’s retirement announcement to that effect. However, he chose not to delve into the matter. He continued to cite stability over the 10 years, describing it as “the most successful in the history of this young nation”.
“With political stability came the fruits of broad-based economic development that has touched most corners of this land,” he said.
“He came to political power again at a time the nation was at its lowest ebb.
“He leaves at a time of unparalleled opportunities for the country’s youth with major job creation underway for the first time in our history and thousands of new training opportunities created for jobs of the future.
“Sir Michael’s retirement is the start of a new era.
“He led this country into independence 36 years ago, before most of the current generation were born.
“He proved himself as its greatest political leader by winning several general elections.
“I will forever be grateful that when Sir Michael knew that he would undergo major open heart surgery and he decided last December to anoint me as his chosen successor, a prospect I had never anticipated.
“Because of the confidence of the Grand Chief, I have humbly, and with enthusiasm, accepted his challenge.”

Basil queries legality of PM’s retirement

Source: 

The National – Thursday, June 30, 2011

THE Opposition has called on the National Executive Council to appointment two practising doctors to reveal the health status of the Prime Minister Sir Michael Somare.
Deputy Opposition leader Sam Basil said although the family of Sir Michael had decided that he be retired from politics because of his health condition, it was wrong, in regards to the Constitution, for the family to make such statements.
He called on Acting Prime Minister Sam Abal to convene the NEC meeting and begin the process of invoking constitutional provisions to have the required medical examination of Sir Mi­chael.
“There is no legal provision for family members to declare that a prime minister has retired,” Basil said.
“While we all respect Sir Michael for his founding role in the formation of Papua New Guinea and we want to be sensitive to the Somare family at this difficult time, we have a duty in the national interest to do what is proper, moral and legal interest,” Basil said.
He criticised the Attorney-General and Justice Minister, Sir Arnold Amet, and newly-ap­pointed Foreign Affairs and Immigration Minister Ano Pala, for not alerting the Somare family and Abal as acting prime mi­nister, to the sections of the Constitution which provided for the examination and certification of the prime minister’s health.
He urged Abal to convene an urgent sitting of the NEC and invoke section 142 (5)(c) of the Constitution by advising the go­vernor-general to request the PNG Medical Board to appoint two medical practitioners to examine and provide two medi­cal reports on the condition of the prime minister to be tabled in parliament.
“This is what should have happened after the prime minister was admitted to the intensive care unit in Singapore within 28 days and a report provided after three months to determine his medical fitness or otherwise to retain this post,’’ he said.
“There are no provisions in the National Constitution that re­cognises announcements made by family members in relation to a prime minister or a cabinet mi­nister’s retirement or resignation.”
Basil said that the nation would continue to remain in limbo over the vague and obscure gesture by the Somare family which had no basis in law.