Constitutional challenge to illegal expropriation of Ok Tedi
24 June 2016
SIR MEKERE MORAUTA
THE Supreme Court has set 1 July as the date for a hearing on whether I have the right to challenge the constitutionality of the O’Neill government’s illegal expropriation of PNG Sustainable Development Program’s 63.4% shareholding in Ok Tedi Mining.
I am seeking standing to bring the challenge as a private citizen – a former prime minister and senior public servant, businessman, economist, chairman of PNGSDP and former chairman of OTML.
I announced in January 2016 that I had begun new legal proceedings seeking to have the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013 declared unconstitutional and invalid.
Should the Court declare that I have standing, a full trial of the substantive issues will follow.
I believe serious constitutional issues arise from the fact that the government, through the parliament, illegally expropriated SDP’s 63.4% shareholding in Ok Tedi.
The decision to proceed with the constitutional case came after the State repeatedly failed to agree to a fair and legally binding negotiated settlement of the dispute, and the International Court for the Settlement of Investment Disputes found it did not have jurisdiction.
My decision to proceed is based on my rights as a citizen to ensure that the laws of Papua New Guinea are fair and reasonable and comply with the constitution.
I believe the Tenth Supplemental Agreement Act offends a number of sections of the constitution, especially Sections 38, 39 and 41, which deal primarily with legal rights and freedoms, whether laws are reasonable and justified or whether they are harsh, oppressive and unwarranted.
I maintain that it is inconsistent with the UN Universal Declaration of Human Rights, which states that “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”.
The constitution states that a PNG court may take this into account in deciding the constitutional validity of laws.
I am seeking a number of declarations by the supreme court, including that the act is unconstitutional, the return of PNGSDP’s 63.4% shareholding, the reinstatement of the former board of Ok Tedi Mining Ltd, the immediate payment of outstanding dividends to PNGSDP, the cessation of attempts to restructure PNGSDP into a State entity and the payment of damages with interest.
Should the curt refuse to grant standing this will end the proceeding.
Other parties in the proceeding are the minister for justice and attorney-general Ano Pala, the speaker Theodore Zurenuoc, prime minister Peter O’Neill, the national executive council and the state.
The constitutional challenge is in addition to other cases between PNGSDP and the state in Papua New Guinea and Singapore.
Stop Press, for those interested and, to correct the record for those who aren't, PNG Echo has now put up my comments on this - I'll give them the benefit of the doubt, viz that they were researching the facts and that created the delay.
Posted by: Peter Sandery | 28 June 2016 at 01:23 PM
The reason BHP still controls the trust fund is because it didn't want any of the sticky fingered politicians in PNG to get their hands on it and piss it all up against the wall Gabriel.
I think Sir Mek is doing the right thing.
Posted by: Philip Fitzpatrick | 24 June 2016 at 03:47 PM
PNGSDP no longer owns the US$1.5 billion trust fund in Singapore. Just as a lot us suspected the true owner is BHP Billiton.
It would seem Sir Mekere is representing BHP Billiton in the fight against all of us as represented though our government.
Posted by: Gabriel Ramoi | 24 June 2016 at 11:54 AM
I have been no fan of Sir Mekere since he took a Fisheries portfolio when his family was involved in the fishing industry.
This was compounded by the ham-fisted way he tried to resolve the ongoing dilemma of having no responsibility for unsuccessful parliamentary motions of no confidence placed upon the movers and seconders of such motions.
However, I am with him in this action which actually is the result of the precedent of a much earlier piece of parliamentary chicanery which goes back to the 1980's and relates to the parliament using its numbers to effectively change the leasehold of a property from one person to another without the consent of the former owner or a court order.
At the time, the Speaker of parliament was well aware of the issue involved but allowed it to be debated anyway - perhaps he was keeping neutral.
The real dilemma in all this is that the only people to benefit from the carrying on will be the lawyers and not the long suffering residents of the Western Province.
A bigger issue of course is that arising from the conflict of interest of a government having responsibility for regulating an industry in which it has a substantial shareholding.
I have tried to get this posted on the PNG Echo website, without success to date.
Posted by: Peter Sandery | 24 June 2016 at 09:26 AM