Court concludes special reference hearing on Leadership Tribunal

A Special Reference before the Supreme Court questioning the power of the Ombudsman Commission and the role of the Public Prosecutor to decide to refer allegations for a Leadership Tribunal came to conclusion on Friday.

A full Supreme Court Bench responded to six questions referred by Justice Collin Makail and five questions referred by the Attorney General and Justice David Cannings, in matters concerning Prime Minister Peter O’Neil’s referral by the Ombudsman Commission over the UBS loan.

Among other questions, Justice Collin Makail sought clarification on whether the Ombudsman Commission had lawful authority, power and jurisdiction to have made a decision to issue a direction dated 14th of March 2014 to the Prime Minister and others, to stop all transactions in relation to the loan arrangements with UBS Nominees.

Justice Collin Makail is presiding over the Prime Minister’s case challenging his referral to the Ombudsman.

The Ombudsman Commission had alleged that the Prime Minister Peter O’Neil failed to comply with administrative and financial processes including the normal overseas borrowing process in the approval of the K3b loan from the Union Bank of Switzerland. 

Court found that the 14th of March Direction by the Ombudsman Commission to the Prime Minister and other stakeholders involved in the UBS loan was however invalid.

Justice Kandakasi among other reasons said, the OC did not point out to any evidence that discloses for example, how the PM and those involved stand to corruptly gain personally or that their conduct is likely to breach a particular legislation such as the Public Finance Management Act.

Court ruled that the OC had the power to issue directions in appropriate cases but this direction was invalid.

Questing the role of the Public Prosecutor, Court was told that the Ombudsman Commission had submitted all its findings to the Public Prosecutor however, the Public Prosecutor in a press statement regarding the leadership prosecution against the PM, called for more evidence from the OC.

Justice Mogish in his conclusion says the function of the Public Prosecutor in leadership prosecution is constrained, limited and restricted to the matter that has been referred to him by the OC.  

He does not have the power to request from or direct the OC further new evidence of any suspected misconduct in office nor does he have the power to refer the tribunal any matter than one referred to him by the Ombudsman. 

The Supreme Court concluded that the Public Prosecutor, depending on the sufficiency of the materials presented before him, can decline the Prime Minister’s misconduct in officer proceeding, however once a tribunal is convened, the Public Prosecutor can only present to the Tribunal what the Ombudsman has presented to him.

Charmaine Poriambep