Peter O’Neil v Ombudsman Commission

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 28 January 2015
• Citation: (2015) N5857
• Court: National Court
• Year: 2015
• Judgement Number: N5857

Full : OS No. 15 of 2015; Peter O’Neil v Ombudsman Commission of Papua New Guinea and Rigo A. Lua, Chief Ombudsman and Phoebe Sangetari, Ombudsman (2015) N5857

National Court: Davani J

Judgment Delivered: 28 January 2015

N5857

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 15 OF 2015

BETWEEN:

PETER O’NEIL

Plaintiff

AND:

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

First Defendant

AND:

RIGO A. LUA – Chief Ombudsman

Second Defendant

AND:

PHOEBE SANGETARI - Ombudsman

Third Defendant

Waigani: Davani .J

2015: 23rd, 28th January

CONSTITUTIONAL LAW – Prime Minister investigated by the Ombudsman Commission – Investigation conducted under s.219 (1) (a) of the Constitution

CONSTITUTIONAL LAW – Referral to Supreme Court of certain questions – interpretation and application of S. 219(1) (a) of the Constitution – interpretation and application of ss. 13, 23(1) (a) of the Constitution – interpretation and application of ss. 13, 23 (1) of the Organic Law on the Ombudsman Commission -Interpretation and application of s. 17 of the Organic Law on Duties and Responsibilities of Leadership (‘OLDRL’) –

CONSTITUTIONAL LAW – Investigation of the Prime Minister – whether he is a person to be investigated under s. 17 of the OLDRL or under s. 13 of the Organic Law on the Ombudsman Commission.

Facts

The Ombudsman Commission conducted an investigation under s. 219 (1) (a) of the Constitution into the plaintiff’s borrowing or the taking out of a loan of AUD$2.3 billion from the UBS AG to purchase 149,39 and 244 shares in Oil Search Ltd and the improper tender and procurement of consultants in relation to the borrowing. The plaintiff, the Prime Minister, on learning that the defendants would be releasing a provisional report, in relation to the investigation, comes to Court seeking interim orders restraining the release of the provisional report and also, to seek the Supreme Court’s interpretation, through several questions it raised, all in relation to whether the plaintiff as Prime Minister, falls within the categories outlined in s. 219 (1) (a) (i) of the Constitution or whether the plaintiff, as Prime Minister, ought to have been dealt with (by the Ombudsman Commission) under the Leadership Code.

The questions were referred to the Supreme Court for its interpretation under s. 18 (2) of the Constitution.

Counsel:

Mr M. Varitimos assisted by Mr. P. Tabuchi, for the Plaintiff/Applicant

No appearance for and on behalf of all Defendants

DECISION

28th January, 2015

1. DAVANI .J: Before the Court is Notice of Motion filed on 20th January, 2015 by Young & Williams Lawyers, for and on behalf of the plaintiff (‘Applicant’). I will use the words plaintiff and applicant, interchangeably. The motion seeks orders to refer certain questions to the Supreme Court, under Section 18 (2) of the Constitution.

2. I set out in full, the orders sought by the plaintiff in the Notice of Motion because it contains the questions sought to be referred to the Supreme Court;

““Take notice that the Applicant/ Plaintiff will at 9:30am on the day of January 2015 at the National Court at Waigani move the Honourable Court for the following Orders:

1. Pursuant to Order 4 Rule 42 and Order 1 Rule 15(1) of the National Court Rules (“Rules”), the time for service of this Notice of Motion be abridged to the date of hearing of this motion (if such date is less than 3 days before the date named in the notice for hearing the motion).

2. Pursuant to Order 12 Rule 1 of the Rules, Section 12(1) of the Laws Adoption and Adaptation Act Ch 20, Section 155(4) of the Constitution and the inherent jurisdiction of this Honourable Court an order in the nature of an interim injunction restraining the First, Second and Third Defendants, by themselves, their servants and or agents from:

(a) investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution;

(b) investigating any conduct on the part of the Plaintiff being the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission;

(c) publishing, in any form, the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise;

(d) publishing, in any form, the Provisional Report of December 2014, signed by the Second and Third Defendants; and

(e) publishing, in any form, any amended Provisional Report or Final Report,

in relation to the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing, pending the determination by the Supreme Court of questions relating to the interpretation and application of provisions of Constitutional Laws referred to it by this Court through these proceedings and the determination of the within National Court proceedings.

3. Pursuant to Order 12 Rule 1 of the Rules, Section 155(4) of the Constitution and the inherent jurisdiction of this Honourable Court, a copy of the Provisional Report of December 2014 signed by the Second and Third Defendants be provided to the Court for the purpose of making a determination of this Notice of Motion after which such copy is to be placed in a sealed envelope and marked with the proceedings number and title of the herein proceedings and the following phrase: “By Order of the National Court, this envelope is not to be opened without an Order of a Justice of the National Court”.

4. The envelope referred to in Order 3 above shall only be opened upon the Order of a Justice of the National Court after 7 clear days prior notice in writing is given to the lawyers for the Plaintiff.

5. Pursuant to Section 18(2) of the Constitution, the following Constitutional questions be referred to the Supreme Court:

1) Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” , “employee” or “person” under Section 219(1)(a) of the Constitution.

2) If the answer to question (1) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 219(1)(a) of the Constitution into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

3) Whether, on the proper interpretation or application of Section 13 of the Organic Law on the Ombudsman Commission, the Prime Minister of the Independent State of Papua New Guinea does not come within the description of any “member”, “officer” or “employee” under Section 13 of the Organic Law on the Ombudsman Commission.

4) If the answer to question (3) above is yes, does the Ombudsman Commission therefore lack jurisdiction to investigate any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea under Section 13 of the Organic Law on the Ombudsman Commission into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

5) Whether, on the proper interpretation or application of Section 219(1)(a) of the Constitution and Section 13 of the Organic Law on the Ombudsman Commission, the Ombudsman Commission lacks jurisdiction to publish the results of any investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of the Independent State of Papua New Guinea into the alleged improper borrowing of AU$1.239 billion loan from the UBS AG by the Government to purchase 149, 390, 244 shares in Oil Search Ltd and improper tender and procurement of Consultants in relation to the borrowing.

6) Whether, on the proper interpretation or application of Section 17 of the Organic Law on the Ombudsman Commission, if the Ombudsman Commission has not informed the responsible person, in this case the Plaintiff, of its intention to make the investigation, it lacks jurisdiction to investigate and publish the results under Section 23 of the Organic Law on the Ombudsman Commission of any such investigation carried out by it, whether by forwarding a copy of its conclusions, recommendations and suggestions to the persons holding the positions described in Section 23(1) of the Organic Law on the Ombudsman Commission or otherwise, in relation to any conduct on the part of the Prime Minister of...