The PNG Judiciary – The power and the glory – Part two

By PNG Echo

This is part two in a series that has morphed from two articles into three. Considered are judicial ‘precedents’ – their advantages and disadvantages and whether they operate consistently in PNG- or does it depend on who’s being judged?  Article three will address the wielding of power, more legal inconsistencies and consider the accountability of the judiciary and whether the new reforms will address any of the inherent and created problems.

Chief Justice Sir Salamo Injia. The first amongst equals.
Chief Justice Sir Salamo Injia. The first amongst equals.

Scrutiny of the PNG judiciary, especially in the social media, seems to fall into three categories – two of which are knee-jerk and mostly ill-considered.

There is the unbridled praise when a popular decision is reached, countered by equally unbridled condemnation when things go the other way – to the point of often-unsustainable accusations of corruption.

Then there are those who feel, wrongly I believe, that the judiciary should brook no criticism (especially if you’ve the temerity to criticise one of the former decisions.)

So while some people, sometimes consider that the judiciary will be the salvation of PNG there are some others who sometimes believe they’re part of the problem. I suspect most vacillate between the two positions depending on expediency.

The truth of the matter is that the judiciary in PNG has a long way to go before it will be anyone’s salvation and this is why.

Separation of powers

And here's another idea of the great philosopher
And here’s another idea of the great philosopher

The independence of the three tiers of government – Executive, Legislative and Judiciary, was a French political ideal (Montesquieu) that came out of the Age of Enlightenment that also gave us the idea of liberty, tolerance and laïcité (i.e. separation of church and government.)

It is an oft-quoted ideal that many believe applies – but it never has. – not in PNG with the political and legal model that the nation inherited.

Firstly, all of the Executive are members of the Legislature and secondly, in the courts of justice it is not only written law that is considered – the judges must also take into account precedents and, should they be from a case in the local jurisdiction (i.e. PNG), the courts have an obligation to follow them unless they can establish a significant point of difference – the law leaves them no choice.

Precedents operate, ostensibly as judge-made law – a necessary overlap with the Legislature.

The obligation to follow precedents in one’s own jurisdiction is why it becomes imperative to strike out, on appeal, judgments found to be wanting, lest they prevail and actually stymie justice.

Sir Kina Bona and Sir Salamo Injia at the legal year opening, Bougainville, 2015
Sir Kina Bona and Sir Salamo Injia at the legal year opening, Bougainville, 2015

Such as the case, late last year in Bougainville, where junior judge (although a veteran of the legal fraternity – being both a former public prosecutor and President of the PNG Law Society) Sir Kina Bona, found an accused guilty of killing an unborn child.

The judgment was made easier (harder?) for the learned judge because the accused pleaded guilty. The judgment, as it stands, has elevated abortion to “killing” in Papua New Guinean law. The precedent is now set and all in PNG must legally adhere to it.

This is draconian and an affront to women in a context where they are already severely oppressed.

One can only hope that the judgment will be overturned on appeal. For while justice may be blind, hopefully it is not also stupid!

Of precedents followed and not

However, if it is true that the law gives no room for interpretation when it comes to following precedents in one’s own jurisdiction, in PNG that seems to be only honoured in the breach.

When a recent Commission of Inquiry into payments to private law firms was suppressed by order of the National Court, the suggestion was that people criticized in these reports were not given a chance to respond to the allegations and thus denied natural justice.

Likewise, when a tribunal was set up to consider the conduct of the Chief Justice by the O’Neill-Namah government there was an order stopping the tribunal for the same reasons – that the Chief justice had not had an opportunity to respond – thus denied natural justice.

Tiffany Twivey leaving the court with Barrister Mal Varitimos
Tiffany Twivey leaving the court with Barrister Mal Varitimos

However, more recently, lawyers Tiffany Twivey and Sam Bonner were not accorded the benefit of this “natural justice” that had been set as a firm precedent when a Supreme Court three-man bench decided, two to one, that their referral (in open court) to the Law Society for misconduct should not be stayed for the reasons of the denial of natural justice. Yet, as in the two previous cases, the lawyers had not been given the chance to respond.

What’s good for the goose, is definitely not so good for the gander in PNG, it seems.

Thus appearing before the court becomes a dark lottery, which was exactly what the practice of adhering to precedents was meant to counter. ‘What applied before, will apply again’ was a principle designed to promote confidence and security in the legal system.

Under the circumstances (that the lawyers were in court on cases involving politicians and police) and given the established precedents; that there had been no political bias inherent in the decision is drawing a long bow.

Which is exactly why it is in no one’s interest for the Prime Minister to subject himself unnecessarily to this sort of judicial scrutiny. It’s hardly a level playing field and in the next article I will expand further on the Power of the judiciary and ask whether that power resides in too few largely unaccountable hands.

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The reformation of the court system in Papua New Guinea.

By PNG Echo.

This article is the first in a two-part series that looks at the Judiciary in Papua New Guinea. This first part will look at the newly-proposed legislation, ask some questions and highlight some concerns. The next part will look at the judiciary in general and seek to answer the question of whether the judiciary will be the saviour of PNG or merely a powerful part of the problem.

Will the judiciary be the saviour of PNG or just another part of the problem?.
Will the judiciary be the saviour of PNG or just another part of the problem?.

The proposed legislation to establish a Court of Appeal in Papua New Guinea and separate the National Courts from the Supreme did not pass last week.

However, that was not because of opposition to the bill.

As far as I can tell, there was only one dissenting voice, that of erstwhile government and now opposition member for Lae, Loujaya Kouza who walked out in protest. (She needn’t have bothered there was a deficit of numbers in the chamber -79 and 83 were needed for it to pass.)

In other words, opposition did not defeat the bill, apathy did – the MPs didn’t think it was important enough for them to make it into the chamber.

Indeed, when I asked a prominent PNG lawyer for comment he replied that he knew nothing of the proposed legislation.

They may just be missing something.

What’s it all about?

The Bill seeks to establish a Court of Appeal that sits above the National Court and below the Supreme. After appealing a decision to the new Court of Appeal there is a mechanism to further appeal to the Supreme Court but now, one must first ask for ‘leave’ to do so which may or may not be granted.

It’s added an extra layer to the justice process – a further avenue of appeal.

High Court of Australia - The Chief Justice wants one - by any name.
High Court of Australia – The Chief Justice wants one – by any name.

If passed, it will be similar to the Australian system where the Supreme Court is the court of appeal, in the first instance, then the High Court (which one must also obtain ‘leave’ to petition). However, Australia is over three times the size of Papua New Guinea and one is forced to ponder the necessity of such a system in Papua New Guinea or its usefulness in dispensing justice.

Moreover, what this will mean for the judiciary is that National Court judges will not automatically be judges of the Supreme Court as is the case currently. Judges will either reside in the National Court, the Court of Appeals or the Supreme Court.

It is expected that the appointments will be according to seniority with the most experienced judges being attached to the Supreme Court, the more junior judges in the National Court and the medium-term judges on the Court of Appeal.

With the practice of sending newly-appointed National/Supreme Court judges to the provinces; for them then to be denied their week in ‘the big smoke’ to sit on the Supreme Court, may be a sticking point with some when considering appointment and may deter some talented candidates.

What’s more, if this is indeed the intended arrangement, then the most experienced judges will no longer be conducting trials.

The other relevant questions are: who will head each division?

Sir Salamo Injia, Chief Justice and first amongst equals (?)
Sir Salamo Injia, Chief Justice and first amongst equals (?)

I am assuming the Chief Justice will preside over the Supreme Court and he is appointed (for 10 years) by the National Executive Council (NEC), but who will appoint the leader of the National Court and the Court of Appeal?

Will it also be the NEC or will it be the Justice and Legal Services Commission (JLSC) – a judicial agency dominated by the Chief Justice? What are the ramifications of each course of action? Whose interests will be served?

Who benefits

Deputy Chief Justice Gibbs Salika. Is this who Rut is referring to or...?
Deputy Chief Justice Gibbs Salika. Is this who Rut is referring to or whom?

The scurrilous blogsite, PNG Blogs in an article written by Dianne Rut (likely a pseudonym) has accused the Prime Minister of using the legislation to protect himself. She writes:

…Peter O’Neill had been having very difficult time with judges who dealt with his cases were also in the Supreme Court [sic].

The suggestion is that this legislation will remove these judges from the courts of appeal (including the Supreme Court) and leave only experienced and easily manipulated judges (?) there.

Not only is that suggestion highly defamatory, it is also completely wrong.

Those with even a cursory knowledge of cordial relations between the Prime Minister and the Chief Justice will know that, probably stemming from the political impasse of 2011, there is no love lost between the two – and there’s no doubt the Chief Justice will head the Supreme Court.

Indeed, it has been suggested to me by a high-ranking former member of PNGs legal fraternity that:

…there is [maybe] a hope, which I think is forlorn, that if they [the government] give the CJ what he wants (including his K400m+ court complex) then he will be nice to them.

The Hon. Loujaya Kouza has also issued a press statement accusing the Prime Minister of base political motives. She writes:

I did not take part in the vote is simply because the timing was wrong [sic]. The intention was not only wrong but the initiator was ill-motivated as well.

Loujaya Kouza's defection to the opposition.
Loujaya Kouza’s defection to the opposition.

Kouza called the Prime Minister “…an intelligent, brilliant architect of evil,” – but then she would, wouldn’t she? She sits (uncomfortably) on the opposition benches.

What Kouza did not do was look beyond the Prime Minister.

Kouza’s need to establish his sinister motives has blinded her to what may be the real agenda of this legislation given that these reforms were first suggested by the Chief Justice over 5 years ago.

Part two of this series will look at the Judiciary – the good, the bad and the ugly – Saint or Sinner?

 

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Is TB Australia’s problem? Maybe not long from now.

Merrell_Susan
I wrote this three years ago.  Have things gotten better?
By SUSAN MERRELL

TODAY, SUNDAY 24 MARCH [2013], is World Tuberculosis Day. In Australia, tuberculosis (TB) has largely been eradicated and is at a negligible incidence of six cases for every 100,000 of population.

So, apart from humanitarian considerations for countries less fortunate, why should TB concern Australia?

It’s said that one can walk from Australia to Papua New Guinea at low tide, and PNG has a staggeringly high incidence of 346 TB cases per 100,000, with numbers rising. (There has been a 42% increase in the last decade.)

Furthermore, 33% of new and retreatment cases in PNG are of the heinous drug-resistant variety.

So will PNGs problem become Australia’s? Evidence suggests that it will.

Earlier this month, PNG national, Catherina Abraham died of TB in a Cairns hospital.

Hailing from Daru, she was in Australia on a tourist visa when admitted to hospital 10 months ago. Her intentions for making the trip were clear – she knew she was sick. Her friend had died of the disease. An Australian hospital was her last hope.

Catherina’s TB was the mutant strain of the disease known as Extremely-Drug-Resistant Tuberculosis (XDRTB).  Being resistant to so many of the treatment drugs, it transcends and surpasses the category known as Multi Drug Resistant TB (MDRTB) and elevates the prognosis to near incurable.

Catherina had completed 10 months of a two-year treatment program that would cost the Australian taxpayer between $500,000 and $1 million. Catherina’s doctor, Steven Vincent, said her death was “not unexpected”.  I’d like to think Catherina’s death would have been peaceful – but I know better.

Treating such a robust strain of this disease takes a cocktail of drugs that are potent and highly toxic – the side effects are severe. At the World Conference on Lung Health in Kuala Lumpur late last year, one presenter remarked that treatment for drug-resistant TB made chemotherapy for cancer seem like “a walk in the park.”

It is defaulting on treatment (not finishing it) that is responsible for the emergence XDRTB and MDRTB: they are man made diseases.  In this, PNG is culpable – apathetic management of the disease has been rife.

The directly observed therapy, short course program (DOTS), that combats defaulting by ensuring that sufferers are observed taking their medication, only operates in 9 of 27 provinces.

In Goilala in the Central Province, where TB is rife, all but one of the 15 aid posts in the district has closed. Many closed when TB sufferers were in the middle of treatment, creating unwilling and unwitting defaulters. Clinics in PNG often run out of drugs – creating defaulters.

And TB is not confined to any particular part of PNG even though the Western Province is getting the bulk of Australian publicity and funding.

Late last year, there was a confirmed case of XDRTB and six cases of MDRTB in Madang, for instance.

But it is TB in Daru that’s making Australia most nervous because of it proximity.

The decision to close clinics on the (Australian) Torres Strait Islands of Saibai and Boigu was in an effort to contain the epidemic within the boundaries of PNG and to prevent PNGeans from Daru and other parts of Western Province breaching the border and crossing to the Islands for treatment in Australian medical facilities.

And although AUSAID has subsequently contributed $31 million to the TB program in Daru, Australian Federal MP Warren Entsch, whose electorate includes the Torres Strait islands, has observed that these aid programs are “riddled with corruption.”

Indeed. In PNG almost everything involving substantial amounts of money is riddled with corruption.

That’s why, even though Catherina Abraham was from Daru, she did not rate her chances there and chose to enter Australia, hoping that she wouldn’t be turned away. She wasn’t.

Catherina did not arrive in Australia by boat across the Torres Strait – she took an aircraft.

How many other people did she infect on the plane to Australia and where are they now?  TB is a highly contagious, airborne disease and spreads easily in such confined spaces. This is how epidemics start.

The next worse strain of TB is Totally Drug Resistant TB (TDRTB), the way PNG is going about managing its TB epidemic, it’s only a matter of time.  Then God help us all because when PNG sneezes, Australia catches a cold.

Dr Susan Merrell was an invited fellow of the National Press Foundation of Washington, to the World Conference on Lung Health convened by the International Union Against Tuberculosis and Lung Disease in Kuala Lumpur last November

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Lawyers’ appeal fails

By PNG Echo.

Tiffany Twivey leaving the court with Barrister Mal Varitimos
Tiffany Twivey leaving the court with Barrister Mal Varitimos

A three-man bench of the Supreme Court today refused the application of Lawyers Tiffany Twivey and Sam Bonner to have their referral to the Law Society quashed and so the referral stands and will go ahead.

The decision to refuse the appeal was a majority decision (2:1) of Justices Makail and Sawong with Hartshorn dissenting.

The referral to the Law Society for disciplinary action was initiated by Justice Kirriwom and announced in court during the hearing of the case of the arrest warrant of Secretary of Treasury Dairi Vele and the replacement of two respondents without, what the learned Judge considered, sufficient notice. The complaint/order was later followed up by His Honour by letter to the Society.

Lawyers for Twivey and Bonner argued that the pair had not been accorded natural justice or procedural fairness by the court before the referral. They were given no opportunity to respond to the allegations.

Sam Bonner - referred too
Sam Bonner – referred too

Twivey and Bonner contended that, as such, the ensuing plethora of publicity in the mainstream and online press (that had only one side of the story to report -Kirriwom Js) had tarnished their reputations’ and impacted negatively on their standing in both the eyes of the public and their clients and they stood to lose personally, substantially and professionally.

The cases were not decided on any wrongodoing on the part of the two lawyers but on a procedural consideration of whether the referral was a court order or a complaint.

Two judges decided that the referral was not a court order and that they had no jurisdiction to hear the appeal and indeed may be usurping the role of the Society were they to.

It was considered that all the grievances of the lawyers could be aired when the Society considered the complaint.

Justice Derek Hartshorn - dissenting
Justice Derek Hartshorn – dissenting

Hartshorn’s dissent arose from the fact that he considered that the referral was a court order and he agreed that natural justice had not taken place and furthermore was of the opinion that, under the circumstances, if the complaint was subsequently heard by the Law Society, justice would not be served as the nature of the referral had already done the damage regardless of the eventual outcome. He wanted the case quashed.

So, in this matter, the Supreme Court of Papua New Guinea has passed the buck to the Law Society with but a single prick of conscience from the dissenting judge for the potential damage to reputations that has already been caused.

I guess it’s medical doctors not Judges that take the Hippocratic Oath – “First do no harm.”

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Gentle man, Peter O’Neill, the Prime Minister of Papua New Guinea.

By PNG Echo

Peter+O'NeillThis writer is often accused of “bias” towards the current government generally, and its head, Peter O’Neill, particularly.

There is no bias, just a considered opinion – between the two, there is a vast difference.  Here’s where my reflections led me and how I got there.

Criticism and defence.

Firstly, I am not uncritical of the O’Neill government.  For instance, I don’t think the Prime Minister is paying nearly enough attention to eradicating violence against women. I have added my voice to this issue and will continue to do so. However, it is not this issue that has drawn the most criticism of him.

When we believed there was hope. Before the disappointment set in: Women celebrating the 22 reserved seats that did not eventuate. Shame on you MPs.
When we believed there was hope. Before the disappointment set in: Women celebrating the 22 reserved seats that did not eventuate. Shame on you MPs.

More remarked upon is the PMs alleged corruption. During his tenure as Prime Minister, O’Neill has been dogged by rogue members of an undisciplined police force on a witch-hunt started by a government agency (TFS – who has been accused of being politically compromised) that firstly exonerated him and then changed its mind when it looked like the agency would not be recommissioned.

Paul Paraka - PM implicated in his alleged fraud
Paul Paraka – PM implicated in his alleged fraud

Under the circumstances, that his detractors are expecting the Prime Minister to be subdued and vanquished without a fight is surprising, especially since the prosecution of this case is little more than a blatant attempt to usurp the position of Prime Minister and thrust the nation into turmoil.

Not to submit to vexatious litigation with those sorts of consequences is not an immoral act, but rather, a virtue.

Remember, never has the Prime Minister stepped outside the law in his own defence. Yet, the people who oppose him are very happy to do so – to act ultra vires with scant regard for the consequences.

While the Prime Minister’s detractors are happy to bring down the system to effect their witch hunt, the Prime Minister is acting responsibly, upholding the idea of a liberal democracy and the rule of law – as one would expect of a Prime Minister.

The UBS loan was controversial
The UBS loan was controversial

Then there is the handling of the economy: it is so easy to make hay while the sun shines- but PNG is a resource-based economy and the sun isn’t shining on this sector globally. This government has not had a broad-range of alternatives with which to work and they have made their choices – choices that have been severely criticized.

However, it is only in retrospect – with 20/20 hindsight – that it will become apparent whether the choices have been wise ones.

Would another government have made different choices? Maybe. But the upshot is that they would have still had the same unfavourable context in which to operate, the same inherited conditions – many of which forced the hand of this government and would have done the same to any other.

One can predict all one likes but economics and the market do not always act predictably.

The Wasa Bridge - a dubious contract award involving Opposition Leader, Don Polye
The Wasa Bridge – a dubiously awarded contract award involving Opposition Leader, Don Polye.

On other matters: some criticisms, like the awarding of inflated government contracts to inappropriate contractors, are as old as the nation itself and the practises are steeped in PNG traditional custom. This is not a new invention by the O’Neill government.

My point: The issues for which the Prime Minister has gained the most severe criticism – down to criminal accusations, have all been those that involve money – alleged sins against property.

A gentle man of politics
A gentle man of politics

Never once has O’Neill been accused of brutality against his people.  

It is why I am perturbed when people in the social media compare him to leaders such as Idi Amin, Hitler and Ferdinand Marcos.

All these leaders were brutal murders.

Amin murdered an estimated 500,000. He was known as the ‘Butcher of Uganda’. From the military, he was an ambitious soldier, whose arsenal included the frequent use of torture.

Indeed, Ferdinand Marcos of the Philippines employed 88 government torturers to help maintain his dictatorship under martial law.

Hitler committed genocide – arguably the most heinous of crimes against humanity as he sought to obliterate the Jews off the face of the earth. However, I believe that he was a dab hand at handling the German economy –

These men resemble O’Neill NOT AT ALL:

The abovementioned heads of the murderous regimes all maintained power and control by acting extra-legally – just as those opposing the Prime Minister are trying to do – NOT the Prime Minister.

They breached the wall and the pigs ran in…

I am persuaded by this
I am persuaded by this

Papua New Guinea has a Prime Minister who respects the rule of law and is a gentle man – this cannot be said of many of his opponents.

While the government now, as in the past, has often affected lives negatively by omission, with this government it has never been, and I believe never will be, by commission. It’s a decent basis for a country with, admittedly, a long way to go.

I am most persuaded by this.

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No rogue police: Kalinoe wants hierarchy respected

By PNG Echo.

Police officers Damaru and Gitua, halted in their tracks.
Police officers Damaru and Gitua

They say that PNG is the land of the unexpected – but there is nothing unexpected about the latest decisions pertaining to Chief Superintendent Matthew Damaru and Chief Inspector Timothy Gitua of the RPNGC in what pertains to their witch hunt against the O’Neill government.

In the latest developments, Dr Lawrence Kalinoe, acting for the Attorney-General Ano Pala (who has, quite rightly, delegated authority to Kalinoe owing to a conflict of interest in this case) has refused to brief out barrister Greg Egan and Jema lawyers to represent the two policemen in the cases involving the Prime Minister Peter O’Neill, Finance Minister James Marape, Attorney-General Ano Pala, Police Commissioner Gari Baki, and Treasury Secretary Dairi Vele (or any cases, for that matter).

In the expected outcry by the supporters of the two rogue policemen, I have not been disappointed. This too was anticipated.

However, while my expectations and the expectations of the rogue policemen’s supporters tally, (we both expected the request to be denied) they come from a completely different understanding of justice and the rule of law.

Jungle Justice

Attorney General a=says "no" to a re-engagement of this legal representation
Attorney General says “no” to a re-engagement of this legal representation

The supporters of Damaru and Gitua want jungle justice, PNG style. They believe that the ‘bikmen’ that Damaru and Gitua have targeted are guilty and they want their heads on a plate regardless of how many principles suffer or how much anarchy and its ensuing consequences their need for retribution may trigger.

It is their argument that the government, by denying this request, is merely protecting itself and its implicated members. They claim it’s unfair.

On the surface, it may seem that way but only because these police personnel have been allowed to get away with insubordination for so long – so much so, that it has become normalised and expected that they should get away with more.

Anything is ok,with their followers as long as they deliver the bllood for which these people have been baying.

Who gave Damaru and Gitua the idea that they could act independently: that they had authority to brief these lawyers in the first place? Under whose authority were they acting?  Sam Koim’s?  He has no authority and is unlikely ever to get any again.

As one commentator on PNG Echo wrote:

These proceedings [various proceedings surrounding Koim] are a waste of time and money because Koim’s Task Force Sweep has no legitimate source of funding and since we should have a politically independent ICAC soon which should make Koim irrelevant although I am sure even that will not deflate his ego.

And when Damaru said, in the press, of the Acting Attorney-General’s refusal to grant his choice of lawyers

This is a major setback to all cases (in court) and investigations (into PM and others) currently underway… Taking on new representation will further delay us,

he really has only himself to blame. He should have thought about that before he decided to be a maverick. All actions have consequences, and that this gung-ho police officer failed to foresee them could be a direct result of his unbridled zealotry.

It is directly akin to all of the contempt of court charges that are now extant and threatening to hold up cases while they’re decided.  The people who have allegedly committed the contempt are busy crying foul but again, they have only themselves to blame : if you don’t want contempt charges to muddy the water, stop committing contempt – it’s not rocket science, especially if you are trained in the law.

Brought back into line

Kalinoe-on-Sanctioning-Prostitution-media
Dr Lawrence Kaliinoe, Acting Attorney-General

The RPNGC is a disciplinary force that is hierarchical in structure. There is a definite chain of command, without which the members become vigilantes – answerable to no one. As reported in his letter to Damaru, Dr Kalinoe has reminded the police officer of this when he tells him

…the request should have come from the Police Commissioner as the head of the organisation

Damaru was advised by the Attorney-General’s Department that he and his officers were able to be represented by lawyers from the Public Solicitor’s Office – which is what the office is there for.

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Mikail J – putting the Koim cart before the PMs horse.

By PNG Echo.

Court-Ruled-In-Koim-s-Favor-teaserIn the National Court, yesterday, Justice Makail adjourned two motions that arose as a result of Sam Koim’s alleged contempt – when he published material about the Task Force Sweep’s case in contravention of a court order that expressly forbade him.

The first motion asked the court to dismiss the entire judicial review into the disbanding of Task Force Sweep (the substantive matter) on account of the breach of the order while the second motion sought to have Sam Koim punished for the contempt.

Justice Makail, in his wisdom, decided that the substantive matter should be heard prior.  What the…?

So what’s the point of contempt laws?

The whole point of the laws of sub judice contempt and the point of the court’s ruling that Koim not publish anything about this case, was to avoid the case being tried in the court of public opinion and risk that public opinion influencing the court’s decision. (Me, I am of the definite opinion that a full-page advertisement in a national daily newspaper just may be construed as carrying some influence – is there even a question?)

Furthermore, it has been argued by Professor Michael Chesterman, Professor of Law and Acting Judge, District Court of New South Wales, that “stopping the trial and fining the media [the offender] – should either occur together or not occur at all [in the finding of a charge of sub judice contempt].”

Under the circumstances, it seems logical that the contempt charges be heard first as they will quite likely have a profound impact. in law and in actuality, on the substantive case – indeed if Koim is found guilty and the motions succeed there may not be a substantive case to try.

So where’s the logic in this ruling?  In making this ruling, Makail has managed to effectively make at least one of the motions  absolutely pointless – that’s not how it should work.

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Moti: A victim of murky politics

By PNG Echo

There is no doubt that Moti has been the victim of a shameful political power struggle – the High Court of Australia recognized that when they ruled in his favour.

And it didn’t begin and end in Australia – this was a political power struggle in which, Sir Michael Somare, then the Prime Minister of Papua New Guinea, chose to aid the Australian authorities to break Papua New Guinean laws to achieve their ends in spite of the breach of Papua New Guinean sovereignty.

It is mooted (in two commissions of Inquiry) that Sir Michael then broke more laws to get rid of Moti before the Papua New Guinea courts had the opportunity to scrutinize his illegal co-operation with the Australians in what has become to be known as ‘The Moti Saga’.

The human consequences

By now, he should be a Judge, an International Jurist or even the Secretary-General of the Melanesian Spearhead Group.

Moti: The victim not the protagonist
Moti: The victim not the protagonist

These would have been the reasonable aspirations of Julian Moti (QC), the former Attorney-General of the Solomon Islands; after all, he was always a strong advocate of the sovereign rights of Melanesian Nations.

It was a passion for which he paid dearly.

Because, instead of this stellar career trajectory, Moti is living hand to mouth, in his native Fiji, trying to patch up a career that will never recover from the stigma of the charges dredged up by Australia (under a different statute) that the Vanuatu courts had dealt with and dismissed a decade previously.

The Genesis

It was abuse of power by the Australian authorities in their bid to dominate the politics of the Pacific that halted the career and fortunes of Julian Moti  It was ‘abuse of process’ that the High Court of Australia found when it granted a permanent stay of prosecution to Moti at the end of 2011 on the regurgitated Australian charges of sex with a minor that the Vanuatu courts had thrown out over a decade previously.

You don’t bounce back easily from charges of this nature. Just the accusation is enough to unfairly stain your character irrevocably.

said Moti.

For the Australian authorities, the nature of the charges was fortunate – it was an effective smokescreen for the political motivations that drove this prosecution

Manasseh Sogavare was Prime Minister then as now
Manasseh Sogavare was Prime Minister then as now

In 2006, Moti was Attorney-General of the Solomon Islands; the current Prime Minister, Manasseh Sogavare was Prime Minister then too. Both nationalistic in their politics and vehemently opposed to the Regional Assistance to the Solomon Islands (RAMSI) – they wanted them out.  Moti is recorded to have said,

RAMSI came to do good, but stayed to do well.

On 29 September 2006, Moti was at Jacksons Airport, Port Moresby in transit to Honiara (from India via Singapore) where Sogavare was facing a vote of no confidence for which he needed his Attorney-General’s advice.

It was a motion that the Australians were hoping would be successful – having an antagonistic Prime Minister in the Solomon Islands did not suit their purposes. Under the circumstances, the last thing they wanted was Moti’s considerable influence and political expertise to come into play. So they made sure it wasn’t and didn’t – with the aid of Papua New Guinea.

Moti in Papua New Guinea.

The belief in the sovereign rights of Melanesian countries is what Moti says disappoints him so profoundly about what happened in PNG. Moti explained:

I know in what great esteem the people of Papua New Guinea hold the Mama Lo – and yet here were the PNG authorities arresting someone without a warrant, taking them into the country, against their will and without the necessary documentation [such as visas] on the request of a foreign authority pursuant to an out-dated Extradition Act [and therefore illegally], while charging him with a crime over which they held no jurisdiction.

What am I doing here?

was the question Moti asked repeatedly of the PNG authorities.

Polye was acting Prime Minister when Moti was taken into PNG against his will and without the relevant visas.

Moti was in PNG unwillingly and illegally by the express authority of Don Polye (Deputy Prime Minister) acting for Sir Michael Somare (Prime Minister) and most likely in consultation. (Sir Michael was away in the Provinces at the beginning.)

I was completely shocked that the founding father of Papua New Guinea was prepared to compromise the country’s sovereignty in this manner and I’ve often wondered to what end,

Moti said.

In the final salvo, Moti was an unwilling participant in the clandestine PNG Defence Force flight (under the radar) that delivered him to Munda in the Western Provinces of the Solomon Islands on the eve of when he was expecting a court decision on his bail – which Moti was confident would be granted. Moti is a firm believer in the rule of law.

The court did not have the jurisdiction to hear the charges – Papua New Guinea cannot prosecute a case originating in Vanuatu – even if they could, there would be the problem of double jeopardy,

he explained. Nevertheless…

Just before dawn on October 10 2006, Moti found himself landed on the tarmac at Munda airport in the West of the Solomon Islands.

He had been dumped in the middle of Papua New Guinea police armed with machine guns who were confronted by a RAMSI Land cruiser obstructing the runway. The Australians were waving revolvers and shouting threats.

It was a terrifying event to witness,” wrote Moti. “I was afraid I’d be shot in the crossfire.

That previous evening, the now late Joseph Assaigo, Intelligence Branch Chief at the Office of the Prime Minister, had called to the Solomon Islands Chancellery (where Moti had sought diplomatic asylum) to tell Moti that the government could no longer guarantee his safety. A secret operation had been planned and Moti should be ready. The terms were not negotiable.

In spite of being implicated by two inquiries, Sir Michael Somare has never answered
Implicated in two inquiries – yet not called to account

Sir Michael has never explained nor answered for his role in the Moti Affair, in spite of two inquiries implicating him.

Was the illegal, clandestine flight an attempt to deny the PNG courts the opportunity to scrutinize the executive decisions of the Somare government is a question that Moti has often asked and contemplated with this writer.

Making it right

Many PNG laws were flouted to placate Australian political ambitions in the Pacific (as the Ombudsman’s Commission Report attests and admits) – and Moti believes he is owed an explanation as well as compensation.

Sir Michael was compensated for being ousted from his position as Prime Minister to the tune of K5 million

said Moti,

I am left wondering why I am the only one to have suffered the consequences of this blight on Pacific politics – while others, who have been far more culpable, have escaped scott free?

In other jurisdictions: Moti’s Australian claim was referred to mediation under the terms of a confidential agreement with the Commonwealth Government while the former Gordon Darcy-led Solomon Islands Government publicly admitted its liability (in Parliament) to pay compensation and outstanding remuneration but Moti is still awaiting payment.

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Koim in court

By PNG Echo

PMs - two motions filed claiming Koim's contempt
PMs – two motions filed claiming Koim’s contempt

In the Waigani Courts, yesterday, (Tuesday, 3 March 2016) a date was set for the substantive hearing into the disbanding of Task Force Sweep, but not before lawyers for the Prime Minister filed two motions against the Task Force Sweep (TFS) Chairman Sam Koim.

Both motions arose out of the alleged contempt committed by Koim when he breached a 2014 court order by extensively publishing subjudice material. The 2014 court order restrained Koim from discussing the TFS case in any media forum.

The Prime Minister’s first motion asked that the whole proceedings be summarily dismissed due to Koim’s breach of the court orders, while the other was a Notice of Motion charging Koim with contempt and asking that he be found guilty and punished by imprisonment.

Koim took out a full-page, paid adb-vertisement discussing the case in direct contravention of a court order
Koim took out a full-page, paid advertisement in this publication discussing the case in direct contravention of a court order

Koim is alleged to have used both social and mainstream media to commit his contempt – including holding a press conference, televised on EMTV (later linked to youtube) where he handed out written statements.  Koim also paid to have published a full-page advertisement in The National newspaper discussing and disseminating information about Task Force Sweep as well as publishing in social media in direct contravention of the court order.

Sam Koim. failed to purge contempt by continuing with contemptuos publication.
Sam Koim. failed to purge contempt by continuing with contemptuos publication.

Lawyers for the Prime Minister said that the decision to push ahead with the charges (after an earlier ruling that disallowed their ‘show cause’ motion as technically incompetent) was predicated on the failure of Koim to purge his contempt by continuing to publish, on Facebook and Twitter, in breach of the order,  after 19 December when the Prime Minister first raised the allegations.

The hearing for the motions was set down for 10 March – with the substantive hearing adjourned until next month (April 13) – these dates were set by the judge in spite of, and in contradiction of, his earlier ruling (same proceedings), denying the same request from Counsel for the Prime Minister.

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Taking responsibility: A solution to violence against women

By PNG Echo

stop-violence-against-women-papua-new-guinea-978x500The very first step to solving a problem is admitting that you have one. Judging by these recent responses, Papua New Guinea still has some way to go – but it’s not hopeless – there is a way.

 

Excuses, excuses, excuses.

PROBLEM

IMG_0095

 

Human Rights Watch has called PNG “one of the most dangerous places in the world to be a woman or girl”.

 

 

 

Response: Susan do you know that in USA 3 underage girls are raped every day but not reported. Australia and Europe are no different. PNG is so small that it gets all attention without comparative analysis.

VERDICT: Misery loves company.  

In the matter of violence against women PNGs misery has plenty of company. It was told to me by a friend, recently in China, that domestic violence there runs at 25% – and as a result the government has just passed a law to protect women (and those statistics are only around a third of the incidence in PNG).

But I’m sure it makes perpetrators feel better that they are not alone in the world; that maybe they are not perverts and that their behaviour is mitigated by others equally aberrant behaviour.

How convincing is this argument to the woman who’s had her fingers chopped off; to the baby that has been raped; to the young mother who endured days of horrific torture before being burned alive – what comfort is it to her that she’s in good company?
And what does this response solve?

PROBLEM

MSF in PNG
MSF in PNG

Médecins Sans Frontières (MSF) has recently come out with a study that says that of the victims of sexual violence that they treated in their clinics at Tari and Port Moresby, 56 per cent were children, and 17 per cent of those were under five years old.

Response: Tari (Hela) have a very strong cultural bondage to date and I am 200% sure they will never harm/hurt a child so as most of the highlands areas. The incidents must be form[sic]Pom.

VERDICT: Denial.

When all else fails, resort to regionalism whereas it’s a Papua New Guinean problem. Besides, at one point, a few years ago, MSF abandoned the aid station at Tari because it was so dangerous – and this is an organisation whose main thrust is in war-torn areas – what does that tell you?
And what does this response solve?

 PROBLEM

pacific women against violence

The statistics are shocking; the reality of the recent statistics from MSF (who are operating from the coalface in Tari and Port Moresby) is that 269 babies under the age of five years old were raped or sexually assaulted.

 

 

Response: Inaccurate statistics making it a problem. I am more interested in the data collection and reporting that is being biased…  There wouldn’t be any problem if the statistics were accurate

VERDICT: Oh really? This is more denial.

It’s easier to attack the statistics than admit there is a problem and tackle it instead. In PNG if the statistics are only even 50% accurate there’s still a considerable problem – and most people think that statistics – especially ones from years ago (like the 70% domestic violence) are more likely to be an underestimation – not the other way around.
Anyway, what does this response solve?

PROBLEM

Traditional PNG
Traditional PNG – if violence against women was not a traditional problem – it is now.

 

 

What is the answer, how do we tackle this problem?

 

 

 

Response: This is the process of your [this writer’s] introduced corrupted system. PNG never had this 100 years ago. You look at your history. You were once a primitive.

VERDICT: Scapegoating.

Apportioning blame is more important than finding a solution.
Again: what does this response solve?

 

THE ANSWER IS SO SIMPLE (AND SO COMPLICATED)

These men call their gang ÒDirty Dons 585Ó and admit to rapes and armed robberies in the Port Moresby area. They say two-thirds of their victims are women.
These men admit to rapes and armed robberies in the Port Moresby area…two-thirds of their victims are women.

The simple answer to this problem would be for the perpetrators to just stop – but, in reality, that’s not going to happen readily. The perpetrators (and that’s certainly not all PNG men) are not going to give up up this easy means of control and this outward display of power without a powerful incentive.

For some, it has come to define their manhood – amply aided by the adoption of a retributive and unintended form of Christianity that sanctions their aberrant tendencies.

Men want a solution too - they need to be shown how.
Men want a solution too – they need to be shown how.

 

Women have had enough of constantly living with the threat of violence and most good PNG men want to see a solution too – they also fear for their wives, daughters and sisters.

Most good Papua New Guinean men find the situation in PNG shameful both nationally and internationally.  It’s because some PNG men rape and beat women and children that all PNG men bear the stigma

And while there are certainly causal factors, at present, it is more urgent to treat the symptoms – to keep the patient alive – before addressing the underlying disease.  In fact it’s vital.

What is needed is a progressive, proactive and reactive government to take the lead – there is no viable alternative.

Good upstanding men are looking for leadership.
Good upstanding men are looking for leadership.

Neither the women nor the upstanding men of Papua New Guinea know how to tackle this problem (which is not the same as not wanting it tackled.) They are looking for a way – they are looking for leadership – a government prepared to do this, will surely reap the benefits.

Would I vote for such a government? – You betcha. Would you?

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