THE TOKAUT BLOG
Peter O’Neill blocked UBS investigation for three years
Former Prime Minister Peter O’Neill says he welcomes the announcement of a full Commission of Inquiry into the UBS loan scandal and that he will be the first to testify.
That is excellent news. It is just a shame O’Neill was not so cooperative with the Ombudsman Commission investigation that has taken five-years to complete.
Rather than assisting with that inquiry, O’Neill used the courts to block it and did so successfully for three long years, during which time he was able to hold on to power.
Three years was how long it took before a five-man Supreme Court bench unanimously rejected O’Neill’s arguments that, as Prime Minister, he effectively operated above the law and his conduct could not be questioned, at least not by the Ombudsman Commission.
The claim was quite extraordinary. O’Neill said the Ombudsman Commission had no jurisdiction to investigate his conduct and that it had no power or authority to issue any report that contained adverse or derogatory comments about him.
No other Prime Minister in Papua New Guinea’s history has ever tried to make such an argument. But O’Neill used the claim to effectively block the Ombudsman’s investigation all through 2015, 2016 and 2017.
It is an insidious practice, using clever lawyering to clog the arteries of justice, but one we have seen used time and again by a long list of Papua New Guinea’s leaders, including the likes of Patrick Pruaitch, Peter Yama, Chris Haiveta, Donald Valu, and others before them. They know that the longer an investigation can be delayed the more unlikely it is to ever find against them. Witnesses move on or their memories fade, documents get lost, evidence disappears and penalties are lessened as time elapses.
Lets look at how O’Neill played this familiar game.
It was on 23 February 2014 that then Prime Minister Peter O’Neill and Oil Search Managing Director Peter Botten met and decided, ‘over a cup of coffee’ says the Ombudsman Commission, for the State to make its ill-advised purchase of a 10% stake in the oil company.
Two-weeks later, the National Executive Council gave its stamp of approval to the deal, which was to be funded through a financially onerous A$1.24 billion loan from the Swiss banking group UBS.
On 22 May 2014, the OC issued a formal Notice of its Intention to investigate the matter under its Constitutional powers. But it was to be five long years before, in June 2019, the Ombudsman was finally able to table its findings in Parliament.
As we now know, the OC has concluded the Prime Minister’s conduct in committing the State to purchase the shares in Oil Search was ‘wrong and improper’ and that the borrowing of the funds from UBS was unconstitutional and unlawful. In total the OC found as many as 15 different laws were broken.
Although it took more than five-years before the Ombudsman Commission’s final report was published, its initial investigation into the loan scandal was completed as long ago as December 2014. A comprehensive Provisional Report was circulated by the OC to the people implicated in the findings on 8 December 2014.
The Prime Minister’s response came through his lawyers, Young and Williams, two-weeks later. In a letter to the OC dated 22 December 2014, Young and Williams said their client refuted any wrongdoing and insisted instead the OC investigations were fatally flawed.
The lawyers claimed the OC lacked the jurisdiction to investigate any conduct by their client as Prime Minister and that the OC had no lawful authority or power to issue any report which contained comments that were adverse or derogatory to him as PM.
Four weeks later, on 23 January 2015, O’Neill made an application to the National Court seeking to refer eleven questions on the Ombudsman Commission’s powers for interpretation by the Supreme Court.
As the OC makes clear in its report, the purpose of the court proceedings filed by O’Neill was “to prevent the Provisional Report and eventually the Final Report on the matter to be published.”
On 19 July 2015 Justice Davani sitting in the National Court, referred the eleven questions raised by O’Neill to the Supreme Court for determination. She also issued interim orders preventing the OC from conducting any further investigations into the Prime Minister on the UBS matter or any other subject.
Those questions were not deliberated on by the Supreme Court until 17 February 2017. It was then a further six weeks before their decision was published.
It was not until 30 March 2017 that the Supreme Court handed down its decision on the questions that had been referred to it more than 18 months earlier. The Supreme Court was entirely dismissive of the Prime Minister arguments.
In a unanimous decision, the Supreme Court found that the Prime Minister does come within the definition of ‘an officer of a government body’ in the Constitution and is therefore subject to the oversight of the Ombudsman Commission.
That though was not the end of the matter. The OC endured another frustrating wait of five-months before the Registrar listed the original National Court matter back into court. This was despite the clear instruction from the SC that:
“The Registrar shall forthwith bring this Reference and the answers to the questions comprising the Reference and the Supreme Court’s judgment, to the attention of the Judge Administrator of the National Court Civil (general) track, so that the proceedings from which the Reference emanated, OS No 15 of 2015, can be determined with all due dispatch.”
When the National Court finally heard the case, the OC successfully applied to have the entire proceedings filed by Peter O’Neill dismissed on the basis the SC had determined the PM had no cause of action and the proceedings were an abuse of process.
It was only on 21 November 2017, three-years after the Provisional Report was initially completed, that the entire proceedings were dismissed and the injunction against the Ombudsman Commission investigation proceeding was finally discharged.
Three years of delay during which time the Prime Minister was able to continue in office unsullied by the Ombudsman Commission findings that, when finally released, would help bring down his government.