KOROR (Palau Horizon) – The Supreme Court trial division has ruled in favor of the Special Prosecutor and denied Senator Tommy Esang Remengesau Jr.’s motion to dismiss the information filed against him.
Remengesau through his attorney Oldias Ngiraikelau filed a motion on September 11 and sought for the dismissal of his 19 counts of misdemeanor charges of violation of the code of ethics for the transfer and concealment of assets during his term.
“Remengesau makes a creative but ultimately unconvincing argument that he left public office for ten hours between the expiration of his first term of office and when he was sworn in for a second term,”Justice Salii said in her order dated October 14 denying Remengesau’s motion.
“If this court were to ask the President at 12:01 am on January 1, 2005 to abdicate the powers of the Presidency for the next ten hours and allow the Republic he was charged with governing to fall into a state of interim disrepair, the likely response would be to scoff at such a proposition,” the Justice added.
Justice Salii said the “purpose behind the tolling of the statute of limitations contained in 33 PNC §611 is to avoid the practical difficulty of investigating and prosecuting government officials while they still maintain the power and influence of their office.”
Remengesau argued that the prosecution is premature because the Ethics Commission has not initiated, considered, investigated or held a hearing concerning the charges brought against him.
Remengesau further argued that there has been no showing that the Attorney General is unable to prosecute this action and the cause of action is barred by the applicable statute of limitations which is four years after the alleged violations occur or in the case of a public official after he leaves office.
But Justice Salii said because “he was reelected, Remengesau was never in position in which he relinquished the power and Office of Presidency.
The Justice said that neither is there any support for Remengesau’s argument that the Special Prosecutor can only prosecute on behalf of the national government when the Ministry of Justice, through the Attorney General is unable to prosecute because of an actual or potential conflict of interest or other ethical consideration.
Justice Salii in citing similar case in Republic of Palau versus Sakuma, said the Appellate Division held that the Office of the Attorney General and the Office of Special Prosecutor have concurrent powers to prosecute elected officials and government employees.
“There is nothing either in the statutory provision or case law which requires that a showing be made that the Attorney General is unable to prosecute because of a potential or actual conflict before the Special Prosecutor can prosecute an elected official,”Justice Salii said in her order.
Remengesau also filed motion for a bill of particulars and motion to dismiss multiple charges or alternatively to compel election of counts. The motions were all heard on October 5 and after hearing the arguments, Justice Salii issued an order on October 14 and denied the motions.
The court in denying the motions for bill of particulars said that the motion is moot and the Republic provided responsive documents, including certificates of title to the real property alleged to have been held by Remengesau, as well as copies of the filed disclosure statements with dates thereon.
