Let the courts decide (again)

By PNG Echo

UBS-small-business-loan-fundThe National Court’s decision (June 11) to stay the directive from the Ombudsman’s Commission (OC) forbidding the repayment of the UBS loan until the results of a Judicial Review is heard – is yet another instance of a country that is becoming unnecessarily litigious and overly reliant on the judicial system.

 Excessive legalism

One could be forgiven for thinking that a punitive ‘legalism’ is standing in the stead of sound judgement in PNG.

So concerned are the populace with law enforcement that it serves as a smokescreen for other urgent and relevant questions that so often go begging.

For instance, in the case of the buying of the Oil Search shares: did anyone canvas, or debate, the question of whether it was prudent for a government to be both an investor and the regulator?

Instead, there has been a morbid preoccupation with catching out the dealmakers in an illegal ‘gotcha’ moment by a punitive and vocal PNG mob, believing the punitive approach to be the only way forward.

The separation of powers and the courts.

Former Treasurer, Don Polye applied to the courts for re-instatement
Former Treasurer, Don Polye applied to the courts for re-instatement

Is there anyone in Papua New Guinea that understands their own limitations, the limitations of their office and/or the limitations of the courts (except the courts themselves)?

In recent weeks we have seen a couple of high-profile cases that have had their submissions thrown out because what they were asking went beyond the jurisdiction of the courts. Shouldn’t the lawyers have known this?

On the other hand, we have the situation where the OC is, arguably, usurping the role of the courts by issuing directives that they (once again, arguably) do not have the power to do. (The case of the controversial UBS loan.)

I say “arguably” because this is the question that the upcoming Judicial Review will address.

Without seeking to pre-empt the court’s decision: that a Judicial Review was even granted indicates that the applicant (the Prime Minister and the acting Secretary of Treasury, Dairi Vele) has an arguable case on its merits and that all other remedies available to the party have been exhausted. *

It doesn’t augur well for the OC

*These are just two of the five conditions summarized by Judge Kandakasi (see OS No OF 2014) that the plaintiffs need to fulfil to obtain a Judicial Review.

Totally exhausted.

What is the matter with the Ombudsman’s Commission? Has it taken leave of all semblance of common sense in that which concerns the UBS loan?

I mean, in recent times, one could be forgiven for considering the OC to be somewhat akin to the ghost ship the ‘Mary Celeste’ – still afloat but nobody’s there. Yet, now, when it sees fit to enter the fray, it creates havoc.

Acting Secretary of Treasury, Dairi Vele - damned if he did and damned if he didn't
Acting Secretary of Treasury, Dairi Vele – damned if he did and damned if he didn’t

Two days after the UBS loan was signed, sealed and delivered the OC issued a directive to stop work on the loan. Vele, pointed out to the court that, by then, there was nothing left for the directive to stop.

What’s more, when the interest payment on the loan subsequently fell due on 16 May, had the State defaulted this would have meant dire consequences for the State and the 7 million plus people of PNG.

Vele, in his official capacity as acting Secretary for Treasury, wrote to the OC advising them of the payment being due and the serious consequences of defaulting for PNG. The response he got was both arrogant and myopic.

The OC informed the Secretary that they were an independent body and were not subject to direction by anyone – and that included the court – and they would write back after they had done an analysis – and so they did…

…Vele received the response on 26 May (dated 23 May), more than a week after the repayment had fallen due.

But the world does not run on PNG time – and the OC’s ‘when-we’re-good-and-ready’ response was, and is inadequate considering the urgency of the matter and the high stakes

That the OC directed, in the letter, that the loan repayment was not to be paid was, by then, a moot point – given that in the absence of a response it had already been made.

Vele, by the actions (or inaction) of the OC, had been put in a situation where he was damned if he did and damned if he didn’t. That’s unconscionable.

It seems that indeed the available remedies – including appealing to the common sense of the OC whose ill-conceived directives were putting the welfare of the State of PNG and its citizens in considerable jeopardy – had been exhausted.

I am not for a moment suggesting that the OC should not go ahead with their investigation into possible breaches of the Leadership Code. However, a far more intelligent approach is desirable so that the cure does not end up becoming worse than the disease.

It seems that the OC may be wrong in thinking that it is not subject to direction from the court – especially not if it’s found to have exceeded its jurisdiction, which will be argued at the Judicial Review

Once again, it will be the courts that will decide, in a triumph of legalism over common sense.

What a waste of time.

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4 thoughts on “Let the courts decide (again)

  1. Ah Susan. Again you’ve hit it right on the button.

    And again I wonder why so many of our so called “educated” people still think like they’re back in the jungles fighting tribal warfare when common sense and education should identify other more beneficial and sensible ways out of our troubles.

    As you said, no-one seems to want to take the time to consider whether or not a course of action is either the right one or the appropriate one. They all want to stick a knife into someone for…whose benefit?

    Anyway I enjoy following your sharp wit and comments (although sometimes they hurt a bit but a bit of pain never killed anyone).

    Please keep it up and never mind the detractors. I don’t see them coming up with anything close to you.

    What’s your outlook on the Kulunga case?

  2. I am a very big cynic of PNG’s legalism as you rightly pointed out. And I do agree with you that common sense – that fundamental basis for all systems and institutions of rational thinking and reasoning – and law included – is always usually sacrificed by one’s ego. My suspicion is that legalism is a new way of status building in PNG. And we all know that the ego is basically irrational and despises defeat and it will exploit the legal system to display itself and mock common sense.


  3. “It will set a dangerous precedent if we let common sense prevail.”
    This was a comment left about this article on ‘PNG News Page.’ (Facebook) . What can I say?