Speech/review ‘Redeeming Moti’

 

“…every person in the Pacific and the world should read this book.”

 

 

 

by Professor Shaista Shameen, Dean of the Law School, University of Fiji on the occasion of the launch in Suva, Fiji, 14 May, 2017 (Abridged)

 

 
Hon. Members of Parliament, Hon. Chief Justice and members of the Judiciary, Your Excellencies of the Diplomatic Corps, Distinguished Colleagues, Students, Ladies and Gentlemen.

Until I read Dr Merrell’s book last week, I had no idea of the actual facts [of the Julian Moti saga] only that he had eventually been cleared by the Australian courts.

Fiji’s Chief Justice, Anthony Gates – first in line to buy a copy

[But] It is just not enough to know that Julian had been cleared. The wrongs inflicted on him by those who otherwise wave the flags of democracy, rule of law, due process and human rights, and trumpet all the politically correct platitudes at us, Pacific Islanders, thus far remain unpunished. The perpetrators have shrugged and moved on, as if to say, you lose some….so what? And that is the evil that this book exposes.

‘Redeeming Moti’ is going to be an important book for universities and scholars for a number of reasons which I will go into in a minute.

But it is not a scholarly book- it does not have the kind of language that scholarly tomes tend to have nowadays in the post-modern tradition- convoluted and Foucaultian. It is uncompromisingly straightforward; a High School student can read it and will find in it both tragedy and comedy, take your pick.

The author and her subject

The story is so awful it is funny- and by funny I mean gallows humour. When I read it I said ..how can this possibly happen to anyone? Well it did happen. Dr Merrell’s book explains how and why.

Now, what will scholars and universities find in the book? What will my law students take from it? That was the litmus test for me as I read it.

Well, Ladies and Gentlemen, let me tell you why I think that every person in the Pacific and the world should read this book.

They will find everything in it. It has all the ingredients of a good thriller; it has a good survey of Pacific and international politics; a good review of media culpability in the persecution of a man who stood up to neo-colonialism, sometimes without support even from those he was protecting; there is a love story (of sorts) in it; and there is redemption, that is, a belief, a desperate belief actually, that one day the truth will be out and then everyone will understand.

Ladies and Gentlemen, there are several observations that I can make in reference to why this book will rightly have a scatter-gun effect.

Julian Moti

First, it exposes mainstream media for what it can be- banal, here today, gone tomorrow, slavish to those in power, hence denigrating its own power to do good, or if that is too hard, at least to be fair, occupying its own colonizing space shamelessly, and then, without warning, becoming self-righteous and unjustifiably indignant.
But what Dr Merrell shows as a journalist, and she is one despite her political science doctorate, is that the mainstream media must understand what it means to be the ‘critic and conscience’ of society..

Secondly, I turn to Pacific Politics, both external and internal that is exposed in the book. During this sorry series of events apparently now known as ‘Motigate’, parliamentarians of some Pacific Island states switched sides so fast, it made me dizzy just to read about it. What this book says about Pacific Island politics is revealing, to put it mildly. It appears we have no ethics, no loyalty to anyone but ourselves (certainly not to the constituency), no shame in changing sides to stay, even precariously, in power, and no guilt about selling our country or ourselves to the highest bidder. Instead we say, oh well, that’s politics for you.

Well, I can’t uphold that perspective to my law students; and I hope no lecturer here tonight will be able to say that to their students either.

The Author in Fiji

Dr Merrell’s book exposes the farce of Pacific politics, including in Australia, in such a way that we have now to decide what we want our politicians to do and be.

Finally, the law. Ultimately, what comes out as a force for good in this book are the courts. But not easily. In Dr Merrell’s account, courts’ decisions are based as much on chance as on law. But the Australian court that released Julian into the arms of the country of his birth, was a court of justice – at the time. That is the one bright light in the book.

But above all, for all that I have made some remarks that would be pertinent to scholarship, this book is about human foibles, including the author’s own which she freely shares with her readers, and about, almost Shakespearean, tragedy, and regret.

Nevertheless, the phoenix does rise, as did Julian who is here with us today to talk a bit about the aftermath, the postlude. No one involved in this saga remained unscathed, least of all Julian, and also the author- that is clear.

However, we are reminded that despite the evil that we know for a fact exists in the world in myriad forms, there is good also, and that is the only thing that counts in the end. But, of course, only if we can find the difference between the two because, quite often, evil masquerades as good. That is the message in the book.I congratulate Dr Merrell for having written it, warts and all

Ladies and Gentlemen, I am indeed very happy and honoured to formally launch ‘Redeeming Moti’ and to highly recommend it to you.

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Book Launch: ‘Redeeming Moti’

If you are in Suva, Fiji next week and you are interested in attending the launch of my recently published book ‘Redeeming Moti’, hosted by the Law Department, University of Fiji, please RSVP to the address on the invitation. Julian Moti will be in attendance and will be a speaker at the event (as will I). See you there.

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Koim surrenders – his final salvo thwarted

Retired Justice Graham Ellis – mooted to grace PNG shores once again.

Today, Sam Koim, of Task Force Sweep, made an application to the Supreme Court to discontinue his appeal. The appeal was against the decision of Justice Colin Makail in the National Court that dismissed the judicial review of the disbanding of Task Force Sweep.

In finally accepting judicial defeat, and after three long years of court battles, Koim, nevertheless still sought to maintain control by asking the courts to direct the government and its agencies, by order, to surrender all Task Force Sweep’s files to line agencies and the Fraud Squad.

While the discontinuation was granted, the order to surrender the files, according to Koim’s direction, was refused.

This effectively puts control of the of the country’s disciplinary forces back where they belong – with the duly elected government of the day.

Therefore, the NEC’s 2014 decision to set up an interim office of ICAC under the direction of retired judge Graham Ellis now stands. I expect that the new office will take custody of those files forthwith and PNG will be welcoming the Judge back to its shores.

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National Chauvinism: Lest we forget.

National chauvinism is an aggressive patriotism that is often displayed when countries are at war.  Lately it is raising its ugly head – even in peace time.
Writes PNG Echo

Once a jolly swagman…

Australia, yesterday, celebrated ANZAC Day and the battle on the peninsular of Gallipoli during the First World War where it is said Australia gained nationhood.

It was celebrated royally all over the nation with large enthusiastic turnouts for dawn services and marches even though the surviving Diggers of the Gallipoli campaign have all since passed on.

In contrast, by the late 1970s, when there were many surviving diggers of that campaign, the celebration of ANZAC Day had all but died in Australia. It was revived in the 1990s.  Some say that it was not an organic revival but a manufactured one.

Ironically, Eric Bogle who wrote his ballad in 1971 “And the Band Played Waltzing Matilda” that has become the unofficial anthem of Anzac Day, did not glorify what happened in Gallipoli, nor the way it was being remembered – but condemns it. His hero asks:

And the young people ask me, “what are they marching for?”
And I ask myself the same question.

It begs the question of whether the revival of the popularity of ANZAC Day has been a forerunner of a worrying global trend promoted by vested interests – national chauvinism?

For the ANZAC tradition commemorates a war where 56,639 Australia males between the ages of 18-44 died. Fully, 65% of Australian recruits were casualties – the highest rate in the British army.
One commentator has written:

“…perhaps the bravest thing the ANZACs could have done at Gallipoli in April 1915 would have been to mutiny.”

There’s no doubt that Australian troops were regarded by the British as cannon fodder and the Australian Military Commanders facilitated the senseless slaughter of their own – they must have known. Where’s the glory in that?

Bogle sings:

How well I remember that terrible day
When the blood stained the sand and the water
And how in that hell that they called Suvla bay
We were butchered like lambs at the slaughter
Johnny Turk he was ready, he primed himself well
He showered us with bullets, he rained us with shells
And in five minutes flat he’d blown us all to hell
Nearly blew us right back to Australia

As poignantly sad as the whole of Bogle’s ode to the ANZACs is, for me, it is the chorus that is the most chilling as he juxtaposes the band playing Waltzing Matilda – a sign of patriotism – against first, the anticipation; then the horror of what was waiting for the conscripts (and those that had enthusiastically joined up of their free will) and finally their ignominious, desperately sad and inglorious return.

And still the band played Waltzing Matilda…  is a perfect illustration of the insensitivity of rampant patriotism and its deadly bounty.

But do we never learn?

National chauvinism, globally, is running rampant – Trump, the resurrection of Pauline Hanson in Australia, Brexit and in a few days time maybe the success of Marine Le Pen, in France.  Le Pen, like Trump has, in gentler times, been considered part of the political loony fringe – her party a marginal player.  Not any more.

How many casualties do we need before the band stops playing Waltzing Matilda?  When will we realise that when we kill or stand by and watch (nay, condone) suffering (as in Australia’s atrocious treatment of refugees) and we claim to do it  “For God and Country” it is far from glorious.  It is blasphemy.

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Redeeming Moti – The book

Was Julian Moti guilty?

The answers are contained in the revelations of ‘ Dr Susan Merrell’s newly-released book ‘Redeeming Moti’.

In it she successfully unravels the complexities of a political situation that was conflated with heinous sexual criminal charges to give a compelling explanation and analysis of a saga that involved four nations, brought down one Pacific government and threatened another.

Told through the experience of the author when, during the court proceedings, she sought to reveal what was being hidden behind a veil of contempt promoted by the nature of the charges. In the effort to redeem Moti, did she end up losing herself?

Available here

 

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History has lessons for the Anti-Violence-Against-Women Movement in PNG

By PNG Echo

For women in Papua New Guinea, this week has been variable. There have been both lows and highs.

The good news is that the Strategic Plan to combat violence against women, which is a comprehensive document that understands the need for long-term planning, has been endorsed by the parliamentary National Executive Council (NEC) which is a huge first step in a long journey.

The bad news is that it took the mutilation of a 19-year-old woman who had both her legs chopped off by a jealous husband to wake the relevant department from its reverie (it had had the completed proposal for 15 months, languishing and gathering dust) aided by political pressure from the Governor of the NCDC, Powes Parkop backed by protesting women.

The women rally for the cause.

Worst news is that in the interim, between acceptance and implementation, the violence is not over – it continues unabated. The problem needs a band-aid solution immediately while the wheels of progress grind slowly that bring in the more comprehensive set of goals

Because just a few days after the NEC ratified the document the newspapers told of a 12-year-old girl (in fact three girls/women – I don’t know the age of the other two) who were gang raped by 50 men over two days before they were released.

But what is most shocking to me is that none of the established women’s groups in Papua New Guinea had been moved enough by the leg amputation incident to voice their horror and disgust until the ‘wait meri’ did – informed by yet another ‘wait meri.’.

And when it looked like some positive action may come of the agitation, only then did many come to the fore.

This does not augur well for the future.

You see, one of the leading women’s organisations claimed ‘enough is enough’ back four years ago when Kepari Leniata was burned alive after being tortured – but it just wasn’t, was it?  In those four years, enough has not been even nearly enough and when the report hit the newspapers of this recent shocking incident (the leg amputations) where were they?

If the price of freedom is eternal vigilance then where too were the raised voices of PNG’s women’s movements when the next shocking rape incident was reported nationally, so close to the first – just yesterday.

History informs us that nothing is given to women easily and if the struggle to live without fear is to become a reality for PNG women then the women’s movements cannot let up on the pressure. They need to be constantly vigilant.

Each and every atrocity must be forcefully and loudly condemned.

It’s a tall order, I know – but it’s the eternal vigilance needed to effect the desired change. If the current leaders and members of the women’s movement are not prepared to do this, they need to pass the baton, graciously, on to someone who is.

What’s more, the women’s movements need to decide what they are really about – there are many worthy causes and so many women’s movements have been co-opted to those supplementary causes to their own detriment.

In many developing countries and former colonies, for instance, the race issue has overshadowed the women’s issues – and that certainly happened on December 16 in Port Moresby where racism was both palpable and rife – and perpetrated by some (not all) women against other women.

Fazilah Basari – organiser.

In fact, a woman who had done all the hard yards organising the protest was effectively sidelined – she was Indian and hence as unworthy as the wait meri. They should have been embraced as women but they were shunned because of their race.

This is unforgivable in a movement that’s all about opposition to abuse of women.

All women understand fear of male-perpetrated violence. Besides, in PNG there are many ‘wait meris’ and women of all ethnicities attacked by men – all women are vulnerable.

What’s more, while it is desirable to have the backing of men in this struggle – it must not become a ‘man’s issue.’

I was alarmed when a speaker at the press conference that preceded the 16 December rally by a couple of days spoke of the rape of males. Now while this is terrible, it is not within the purview of the women’s movement. By all means, start another movement to combat this because while it may seem interrelated, so is every issue in one way or another and the movement is there to curb the violence against women – the far greater of the two evils.

If we, in the women’s movement, have learned anything from history it is that the struggle will neither be won by a half-hearted effort nor by ostracising some committed women because they are the wrong colour.

Nor indeed will it be won by letting any extraneous issues co-opt and derail the goals.

Leaders of these movements have a grave responsibility because if they drop the ball it will be more likely that another woman will be beaten, maimed, mutilated or killed. I wouldn’t want that on my conscience.

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Koim: It’s crying time again – Case dismissed

By PNG Echo

13343079_1719514234955147_3481714574178322515_nJust hours ago, the National Court of Papua New Guinea handed down its decision on the Judicial Review of the disbanding of the Taskforce Sweep brought by Chairman Sam Koim.

The court found for the Prime Minister, NEC, Attorney General and Independent State of Papua New Guinea, represented by Mal Varitimos, Tiffany Twivey-Nonggorr and Nicolas Tame, and against Koim on all counts except the defense objection as to the competency of the plaintiff’s proceedings.

As the judgment found that the court did not have power to review the NEC’s decision to disband the agency and that the plaintiff had no standing to commence the proceedings even if it had, the objection as to the competency of the proceedings became redundant, anyway.

Koim’s arguments to the contrary were dismissed as not being established.

Makail’s summary

The proceedings will be dismissed on the grounds that first, the decisions in question are not reviewable. Secondly, even if they were, the requirements of natural justice did not apply. Thirdly, bias and bad faith have not been established, so as, unreasonableness. A further ground for dismissal is that the plaintiff lacked requisite standing to commence these proceedings. The objection to the competency of these proceedings was dismissed.

Writer’s comment

Justice Makail is a judge that has created the perception that he is firmly on the side of Koim and his cronies by the number of cases where he has found for them that have been overturned on appeal. Yet, he could not find any sound legal reasons to accept Koim’s arguments for his continued employment and the continuation of Taskforce Sweep.

The executive government is the body mandated to make these sort of decisions, not the judiciary, as Justice Makail so rightly pointed out in his judgment.

In my opinion, Sam Koim was promoted to a position way above his competency level – and I have written about the reasons for my opinion on many occasions. He should have accepted the decision to disband the agency and do away with his services with grace and dignity – not taken up the court’s time in a matter that should never have been before it.  He has been pandering to his own bruised ego like a jilted cuckold.

 

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Koim gets trial date

By PNG Echo.

Koim back in court on 20 October, minus his illegal counsel
Koim back in court on 20 October, minus his illegal counsel

The substantive case on the future of Task Force Sweep has, after six months of delays, received a trial date of 20th October at 1.30 pm.

The date was fixed on Wednesday (Oct 5) in the Waigani Court – Justice Colin Makail presiding.

With this case having been trial-ready since 13 April, and with Justice Makail, up to this point, entertaining adjournment after adjournment requested by Sam Koim, on Wednesday the Judge set aside all motions that would further delay the trial and it will go ahead as per the stated schedule.

After this matter is settled, Koim will then face the contempt charges associated with the publicising of the results of Task Force Sweeps investigations – in direct contravention of a court order.

Maybe on the 20th October PNG will, at last, get the answers it craves (or details officially confirmed) of matters of national importance such as who’s been funding Koim and whether the payments are legitimate or just more corruption?

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The curious decisions of Justice Makail.

By PNG Echo

Justice Derek Hartshorn - one of the three Supreme Court Judges that overturned Justice Makail's decision today
Justice Derek Hartshorn – one of the three Supreme Court Judges that overturned Justice Makail’s decision today

When earlier today, a three-man bench of the Supreme Court unanimously overturned a National Court decision by Justice Colin Makail to join Police officers Gitua and Damaru to the judicial review of Chief Magistrate, Nerrie Eliakim’s decision to grant an arrest warrant against Prime Minister Peter O’Neill, in their judgment they raised a very good question.

 

…that a police officer wishes to execute an arrest warrant against the wishes or orders of the Police Commissioner raises issues as to why that Police Officer is of that view and believes he has such a particular interest in executing the warrant that he seeks court enforcement, against the position taken by the Police Commissioner.

Why do these maverick police officers think they can go over the head of their boss and appeal directly to the courts? Could it have something to do with their success when Justice Makail is the sitting judge – buoying them: encouraging their rogue tendencies?

Well…in journalism, we consider once to be an isolated incident, two times a coincidence but have it happen three times, and that’s a trend.

There are four instances that I’d like to highlight – I’ve called them ‘The curious decisions of Justice Makail’. There may be more than four, I may have missed some – if I have feel free to point them out.

Supreme Court says – noooo.

Justices of the Supreme and National Courts
Justices of the Supreme and National Courts

We’ve already looked briefly at yesterday’s Supreme Court decision that found that Justice Makail was wrong and had fallen into error when finding for Damaru and Gitua. His judgment was quashed.

And it’s not the first time lately, is it?

Back in July, the Supreme Court also set aside Makail’s decision in the National Court that dismissed Attorney General Ano Pala’s petition.  Makail said Pala had no standing to bring proceedings challenging the validity of an arrest warrant until after he was arrested.

Justice Makail, that’s ridiculous!

There would be no point in trying to stop the arrest if it had already happened, now would there? That’s shouldn’t be too hard for a Justice of the PNG courts to understand, should it?

Luckily, the Supreme Court judges did not have the same conceptual deficit and quashed the arrest also commenting that:

None of the grounds for considering the arrest referred to…could reasonably have been believed to justify the arrest of the applicant.

The police officer who had had the arrest warrant sworn out was ….drum roll…wait for it…Matthew Damaru.

Is Justice Makail so mesmerised by Damaru that he cannot see what other Judges clearly can?

Seems the Supreme Court doesn’t think much of his judgments and I must say I find them …well…curious too.

A trip down memory lane – two more (but who’s counting?)

Sam Koim - playing for time?
Sam Koim – playing for time?

Cast your minds back to March to the time after Sam Koim took out a full-page advertisement in the newspaper allegedly in contempt of a court order stopping him talking to the press.

In the National Court, when this and Koim’s substantive case concerning the status of Task Force Sweep was up for mention, Justice Makail, on adjourning both, decided that the substantive case should be heard first.

What the…?

Justice Makail seems to have a lot of trouble with sequencing. He’s put the cart before the horse again.

If the contempt is found to be proven and egregious enough then it could (and some would argue ‘should’) have the case thrown out. You don’t need to know the law – you just need to be blessed with a modicum of common sense.

Justice Makail, has done Koim a huge favour, removing one of the obstacles to his case. In the meantime He’s made himself look ridiculous (there’s that word again)– but that doesn’t seem to worry the good Judge as he errs in ways that a layperson who watches “Law and Order’ regularly  wouldn’t.

And it’s for the same faction he subsequently favoured in his error-ridden judgments – in this case Damaru and Gitua’s little mate, Sam Koim.

And ironically, while Makail has no sympathy for the physical harm done to Lawyer Tiffany Twivey, back in April, after being manhandled and held in appalling conditions by policemen acting on behalf of Damaru and Gitua – before she was charged, for Sam Koim’s lack of preparedness he has all the patience in the world.

Even armed with a doctor’s certificate detailing the injuries Twivey had received, Justice Makail, would not entertain her request for a week’s adjournment and gave her just a day saying that the case was of national importance and needed to go ahead. (It was the substantive case of Task Force Sweep).

That it clashed with her appearance in court with her own case was not just serendipity – although it was that too – it was just too convenient for Koim to think could be anything but contrived.  With the action of his mates, Damaru and Gitua, Koim avoided the witness stand – and continues to do so.

Ironically, at the same time, Justice Makail agreed to adjourn the case on the request of Sam Koim because Koim was not prepared.

NOT PREPARED?

This is possibly the most important case of his life – and he wasn’t prepared?  How much time does he need?

Half a year, apparently.

Since that day, Justice Makail has entertained Koim’s requests for adjournments another three times that I’ve counted. – with Koim still making all sorts of specious excuses about why he’s not prepared – most involving his representation and Justice Makail buying them all and indulging him.

The case is currently listed for a ‘status hearing’ on 5 October. Why? Why isn’t the case just going to trial?

Justice Makail agreed to give Twivey one day’s adjournment but has given Koim 6 months. Does that sound balanced to you?

Makes you wonder what Koim is playing at and why Makail is facilitating it, doesn’t it?

Playing for time

Sam Koim leaves the Waigani court - with his illegal counsel
Sam Koim leaves the Waigani court – with his illegal counsel

The truth of the matter is that the substantive case was ready to be heard back in April. All the affidavits have been filed – the evidence has been collected and distributed – all neatly in ring binders.

Koim’s been dragging out this case. Why?

October 20th is the date when all public servants contesting the election have to resign, isn’t it?  Hands up who thinks Koim will throw his hat in the ring? All of you? Oh, OK.

It’s not long until then, is it?

Supposing Koim can hold off this case until then, he can resign from his position (a bit of a joke, under the circumstances -but stay with me here) – he then tells the court that, not being the Chairman of Task Force Sweep, he doesn’t have any standing in the case anymore. He withdraws and the case collapses.

What a great outcome for Koim that would be!

Because, there is nothing surer than Koim will not step down from the witness stand smelling of roses if Twivey can get him in there to be cross-examined.  Makail is thwarting that by granting all the adjournments.

I think Koim has an urgent need to avoid that witness stand, at any cost.   I mean, if he’s going to stand for election, that’s not what he wants his constituents to remember – the day, with his hand on the Bible, that he was forced to tell the truth, the whole truth and nothing but the truth – so help him, God. The day his halo may have slipped and be choking him.

Mind you, with Makail hearing the case, I doubt that Koim would lose, precedents suggest that – but that’s OK, his judgment is likely to be overturned on appeal (those precedents again)

Now, I may be completely barking up the wrong tree, but just in case, and, as you’ve said, Justice Makail, this is a case of National importance, so be as punitive with Koim as you were with Twivey. Give him a day. Start hearing the substantive matter on October 6.

Waddyasay, hey?

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Justice Colin Makail errs (again)

By PNG Echo

CourtA three-man bench of the Supreme Court, earlier today, unanimously overturned a National Court decision by Justice Colin Makail to join police officers Gitua and Damaru to the judicial review of Chief Magistrate, Nerrie Eliakim’s decision to grant an arrest warrant against Prime Minister, Peter O’Neill.

Justices Kandakasi, Hartshorn and Kassman  found that Justice Makail was wrong and had fallen into error in granting Damaru and Gitua, as members of the police force, leave to act outside of their chain of command in joining them, independently, to the judicial review.

In their judgment they affirmed that:

The proper person to be a party to a judicial review proceeding on behalf of the Police Force …is the Police Commissioner.

And the Police Commissioner was already a party to these proceeding.

The bench were troubled by Mr Damaru’s admission that his and the interests of the Police Commissioner were different ”

because he wanted the arrest warrant executed but the Police Commissioner did not.

The learned judges gave their binding legal opinion that a police officer is not entitled to execute a warrant against the wishes of the Police Commissioner by way of a court proceeding.

Clearly, this bench of the Supreme Court would not entertain the courts being used in this manner by maverick police officers.

They went on:

Further, that a police officer wishes to execute an arrest warrant against the wishes or orders of the Police Commissioner raises issues as to why that Police Officer is of that view and believes he has such a particular interest in executing the warrant that he seeks court enforcement, against the position taken by the Police Commissioner.

I have a theory on that: could it be that their successes in the courts of Justice Colin Makail have led them into that error – that his errors have been instrumental in fostering the belief that the zealotry and insubordination of these officers is a reasoned response? The Supreme Court begs to differ.

Stay tuned: tomorrow, I will explore that theory further

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