Remengesau, who is represented by attorney Oldias Ngiraikelau, is facing 19 counts of misdemeanor charges for violating the code of ethics when he transferred his assets while still the president.
“Remengesau makes a creative but ultimately unconvincing argument that he left public office for 10 hours between the expiration of his first term of office and when he was sworn in for a second term,” Justice Kathleen M. Salii said in her order.
“If this court were to ask the President at 12:01 a.m. on Jan. 1, 2005 to abdicate the powers of the Presidency for the next 10 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,” she added.
Remengesau argued that the prosecution is premature because the Ethics Commission has not initiated, considered, investigated or held a hearing concerning the charges against him.
He said 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 Salii said because “he was reelected, Remengesau was never in position in which he relinquished the power and Office of Presidency.”
She said 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.
She added, “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.”
