Section 27 of the Organic Law on Duties and Responsibilities of Leadership provides that if the Ombudsman Commission is satisfied that a leader is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons to the Public Prosecutor.
In the matter of the Minister for Finance and Treasury Patrick Pruaitch, such a referral has already been made.
Section 27 (2) provides for the Public Prosecutor, should he consider the referred matter sufficient to proceed with, he shall refer the matter together with the statement of the Ombudsman Commission to Chief Justice. It becomes a mere formality, thereafter, for the Chief Justice to appoint a tribunal of eminent counsel to hear the allegations.
This provision was also satisfied last week when the Public Prosecutor referred the matter to the Chief Justice. The Chief Justice appointed a three-member tribunal comprising Deputy Chief Justice Salika Gibbs, principal magistrate Peter Toliken and senior magistrate Nerrie Eliakim.
Section 28 of the OLDRL, sub-section (1) provides that when a matter “has been referred to a tribunal the person alleged to have committed misconduct in office is suspended from duty”.
Sub-section (2) provides that he be suspended from duty on full pay.
That provision will apply automatically and Mr Pruaitch will be suspended from office when the tribunal convenes. He has welcomed the appointment of the tribunal but has advised his lawyers to challenge certain processes applied by the Ombudsman Commission. That application was dismissed last Friday by the National Court.
There is a precedent here in the matter of Minister for Public Enterprises Arthur Somare, who, since before the 2007 elections, has been fighting a referral. He continues to hold office as minister while this protracted case drags on in the courts.
Without attempting to influence due process of the tribunals and courts which must be carried to their full conclusion, we do feel compelled to comment about the tarnished public image of governments, institutions, offices and individuals when important public figures are accused of misconduct and paraded before our judicial system.
The Minister for Finance and Treasury is simply the next most important minister after the Prime Minister as the man in charge of the finances and public accounts in the country.
When such a man is referred for misconduct, it is no small and private matter. The allegation tears at the very fabric of good governance and transparency and accountability principles of Government.
In the public mind, questions are immediately raised questions about what manner of man has been charged with the financial affairs of the country all this time. That same can be said about Mr Somare, who, while fighting his referral in the courts, has been making very important decisions on impact projects for this nation.
The question of guilt does not come into play at all. That is for the tribunal or courts to decide.
The fact that a leader has been referred for misconduct following an elaborate process of investigation, of his having been offered the opportunity to answer Ombudsman Commission queries, and of the commission having satisfied itself that following all that process there is a serious to answer, that is itself serious enough for the incumbent office holder to step aside to allow this process to come to its natural conclusion.
In other jurisdictions – Japan and the United Kingdom come immediately to mind – only the whiff of a scandal will force office holders to resign to take whatever comes in their private capacity so as to not tarnish the good image of the entire party or government or organisation they work for.
In the United States where public office holders are concerned, the internal investigations and checks and balances in place are such that each officer is privately and discretely confronted with evidences of impropriety and forced to resign long before any allegation enters the public arena.
The PNG practice has been quite different. The accused will remain in office and fight tooth and nail until he or she is forced from office by a guilty verdict. In the process, all that the person represents, corporately as well as individually, is spat on the stick of public criticism.