The Defense of Task Force Sweep (Who’s funding Koim?)

By PNG Echo
(Keep reading to the end where the document that answers the question is supplied.)

6a00d83454f2ec69e201a511c676d5970c-250wiIt was the National Executive Council (NEC) that established Task Force Sweep and it was the NEC that terminated the agency.

But Sam Koim couldn’t accept the inevitable. He was enjoying his elevated and internationally lauded position, notwithstanding his inexperienced and inept management of the agency that saw only half of his prosecutions make it through a committal hearing and of many of those that have, have been an unnecessary failure, according to a concerned legal expert.

Koim recently stated of the decommissioning of the agency:

It’s like the accusers threw us out of the ship in the middle of the deep ocean and expected us to drown and die, but when we made it to the shore alive, they then turned around and accused us saying “why are you still surviving?”

Actually, the situation was anything but.

They were let out of a very leaky, inadequate boat on the Jetty and told to go home – but Koim kept wading back into the sea then expecting someone to pay for expensive lifeguards to get into the surf with him and keep his head above water. It has been a wilful and continuing act.

The analogy is plain: We are talking about his many and various attempts to keep the agency afloat using expensive and illegally hired lawyers and barristers. Recently, for the third time, the Supreme Court made the ruling of their illegality bringing into question every and any court victory he may have obtained using the expensive counsel

Anyway, the question of who has been funding the agency as well as funding the litigation has been the burning question.

Ask no more.

Hereunder is an account from the Grand Papua Hotel for Mr Greg Egan, Koim’s senior counsel of choice,  accomodation and food.  The entity that was picking up the tab was Posman Kua, Aisi – Kerenga Kua’s old law firm.

I am also reliably informed that the ‘Dream Inn’ a Kua enterprise has also been used extensively – but that will remain speculation until someone can find an account I can publish. For now, let’s go with the one we have.

This is page 6 of Mr Egan’s accommodation bill with the final amount disclosed.  I have receipt of the other five pages. Please note who’s picking up the tab.
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The Somare accounts.

By PNG Echo.

You asked for it – here is is.  Another nail in the coffin of the Grand Chief’s aspirations to cover up the Singapore dealings.  When he asks that advise he says he’s going to of his lawyers, I wonder what they’ll tell him?

What we know so far is that 3 cheques made out to Sir Michael Thomas Somare were deposited in Singapore bank account No 0374026963

  1. Dated 16.08.10 and was for $US280,000 – it was deposited on 16.08.10
  2. Dated 01.09.10 for $US280,000 – it was deposited on 02.09.10
  3. Dated 12.11.10 for $US224,000 and was deposited on 15.11.10

The Standard Chartered Bank “One Account” of Sir Michael Thomas Somare,  for which PNG Echo has two bank statements, one can assume is a different account to the one that the cheques written out to Sir Michael Somare were deposited into as one of the transfers in the Oneaccount came from 0374026963

Hereunder, Sir Michael Thomas Somare’s “Oneaccount’ bank statements for the end of 2010

Transactions of interest

9 September 2010  Statement

17 August – Bulk cheque deposit – $280,000
1 September – Cash withdrawal – $260,000
3 September – Bulk cheque deposit – $200,000
3 September – Cash Withdrawal – $125,000
3 September – Transfer 0309980593 – $125,000
3 September – Transfer of $165,500 from account 0374026963 (see above)
3 September – Cash withdrawal $165,500

9 December 2010 Statement

16 November – Bulk cheque deposit – $224,000
7 December – Clearing cheque – $220,000

Summary

In August/September there were three large deposits (and other small ones that I have not taken into account). The total of those cheques was $645,000.

In November there was another for $224,000 – making the grand total $869,000.

In the space of 3 days (1-3 September) an astounding $550,500 was withdrawn in cash, $125,000 was transferred into another account (recipient unknown), then in December a cheque was written on the account for $220,000

In – $869,500
Out – $895,500

NOTE;  Incomings are in blue, outgoings in red for ease of reading.

The thought that is exercising my mind is how do you move that amount of cash?  What does $550,500 cash even look like?  How many suitcases would it fill?  How were those funds moved internationally? Was it legal?

Disclaimer:  Owing to the indistinct printing of some of the documents, although all care has been taken, we bear no responsibility for any inadvertent mistakes.  People should rely on their own reading of the documents that are hereunder provided.

The Cheques and the Bank Statements

Somare Cheque 2Somare Cheque 3Somare Cheque 1scan-2scan-3scan-4scan-5

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An ill wind blows in Bougainville

By PNG Echo

A cold political wind is blowing on the islands of Bougainville that’s fuelling a cold war.

This wayward wind, which was downgraded to a tropical breeze at the cessation of hostilities in the bloody civil war on Bougainville at the end of the 1990s, has never been tamed but held in check by a peace agreement signed by most of the warring parties.

The Promise

The car ferry in the capital of Buka - at present, peace reigns
The car ferry in the Bougainvillean capital of Buka – at present, peace reigns

The keystone of the accord was the promised plebiscite for an independent state, to take place within 20 years of the agreement. The promise effectively took the wind out of the sails of the immediate call for independence, just as surely as Federation did similarly to the Republican movement in Australia at the beginning of the 20th Century.

This future vision watered down many Bougainvilleans’ commitment and backing for the Me’ekamui State, (declared during the hostilities by the rebels). Within Me’ekamui dwell the more militant Bougainvillean rebels. Me’ekamui refuses to die.

The possibility of independence without bloodshed was an attractive proposition for many who had lived through the war; who had suffered its deprivations and lost loved ones – as brother fought against brother.

It was the proverbial pot of gold at the end of the rainbow, analogous with the biblical ‘promised land’ for those that had also suffered the loss and pollution of their precious lands at the hands of foreign interests that were supported by a government who were prepared to sacrifice Bougainville and Bougainvilleans on the altar of national economic interests.

As the twenty-year time frame enters its final years, all the old wounds that the peace agreement managed to stitch together are being torn apart by the same old issues – for they were never resolved, just postponed.

The Panguna copper mine is the single most pressing of those issues and the peace agreement did not address it at all or any of the concerns over mining in Bougainville. The sensitivity of the issue, that had been the catalyst for the civil war, was the elephant in the room that needed to be ignored to effect an agreement – and it was. But, like M’ekamui, it never went away.

Bougainvillean independence and Panguna are irrevocably interlinked

Panguna – to mine or not to mine

A flower blooms in Panguna.
A flower blooms in Panguna.

When the Bougainville rebels shut down Panguna in 1989, it was supplying PNG with 45% of its national export revenue and was the single biggest contributor to the economic viability of the Independent state of Papua New Guinea hence the national government’s interest. It was also the biggest polluter and cause of unrest on the island of Bougainville.

The issues surrounding Panguna were the causal link to the beginning of the hostilities – with the rebels closing the mine and the PNG Defence force being deployed to Bougainville to open the mine – forcibly if necessary. The rebels didn’t budge. There followed, on Bougainville, nine years of war that included a blockade and that pitted the PNG Defence Force against its own people.

Even though the war has been over now for almost 20 years, Panguna has never re-opened, although it’s potential output and profitability remains unchanged. There is wealth in Panguna of unrealised proportions estimated to be in the vicinity of 5 million tonnes of copper and 19 million ounces of gold.

That the mine has been closed for so long is a testimony to just how polarising the issues still are – the mine is considered a jinx.

The author in Panguna
The author in Panguna

I have visited Panguna, it’s eerie: there is a chill in the air that is not explained by the weather, I was glad to leave. Having been there, I can well understand the sentiments of a populace far more prone to the belief in the supernatural than I.

Nevertheless, to expect that it will remain closed is not realistic for if Bougainville opts for independence without reopening Panguna, how will the new State sustain itself?

This notwithstanding, none of the main actors in the cold war that’s developing, many of whom are the mandated leaders of Bougainville, have yet been willing to nail their colours to the mast about the mine’s future. But if there is a Bougainvillean, economic Holy Grail, this is it. Politically, it’s a poison chalice.

Into the fray recently, whipping up the already restless political air currents, has come mining giant Rio Tinto, who had controlling stock in Bougainville Copper Limited (BCL), the company that worked Panguna copper mine until its forced closure by the rebels in 1989 – BCL still holds the lease although its mining rights were downgraded to that of an exploration licence, after the new Bougainville Mining Laws were enacted in 2014.

In an interesting piece of timing, (why now?) Rio Tinto has gifted all of their shares in BCL: some to the PNG government and some to the Autonomous Bougainville Government (ABG – autonomy being another condition of the peace agreement).

The ‘gift’ has pitted these potential protagonists against each other and managed to seemingly divest Rio Tinto of all further responsibility to clean up their mess.

While the gift of the shares to the ABG comes with all the controversy surrounding Rio Tinto’s stubborn refusal to effect reparations, both it terms of repatriation of the mining site and compensation – the shares gifted to the PNG government have the added controversy of having been gifted to an inappropriate entity.

BCL shares

Prime Minister, Peter O’Neill, has recognised that the PNG government is not the correct recipient of the BCL shares: that they rightfully belong to Bougainville. In a politically provocative move, he announced he would re-gift these shares to the affected landowners of Panguna but not through their political representatives, the ABG, but directly –there is 17.4% of the company in the offing.

4959874-3x2-340x227
President Momis

President Momis was not amused: the Prime Minister had decided to by-pass the ABG – Momis suggested that the Prime Minister seemed to believe that he knew better than the ABG, saying:

You substitute your view for ours.

Prime Minister O’Neill retaliated by accusing President Momis of playing “petty politics” that undermined the peace agreement.

In reality, the politics are not petty and it would seem that the Prime Minister is himself engaging in politics using a Napoleonic ‘divide and conquer’ tactic. With his action, Mr O’Neill has diluted the power of any one BCL shareholder and denied the ABG a controlling interest.

The Prime Minister of Papua New Guinea
The Prime Minister of Papua New Guinea

Being an astute politician, O’Neill would be aware that the gift is good public relations for his erstwhile flagging image. It portrays him as a benevolent and generous leader (a Bik Man, if you like) while also ensuring that some time in the future, if the mine is opened under BCL, the PNG Government can form a coalition with one or a few of the other shareholders to gain control (the PNG Government has held a 19% share interest in BCL for many years). Mr O’Neill is a master in the dynamics of coalitions.

For while Mr O’Neill justified his expropriation of OkTedi, as the right of a mandated government acting on behalf of its people, he has denied controlling interest in BCL to the ABG. He can do that because Bougainville is not yet a sovereign state (and may never be).

There are other interested parties that have weighed in on the issue too, not least of all the Minster for Communications in the national government and member for Central Bougainville, Jimmy Miringtoro.

Mp for Central Bougainville - Hon. Jimmy Miringtoro
Mp for Central Bougainville – Hon. Jimmy Miringtoro

In a press statement, Miringtoro attacked the past record of the ABG and, in particular, President Momis whose involvement in the national government goes back to 1972. (Momis was one of the drafters of the PNG constitution).

Miringtoro asserted that, from his position in the national government, Momis

…could have prevented the war if he’d been honest from the start.

The only way for Momis to make peace with the people of Panguna, according to Miringtoro, was to admit that he’d “failed them,” and he recommended that:

… the President cede control of Bougainville to someone who has the energy, commitment and vision to move Bougainville forward instead of wasting time…

The Minister reminded his readers, on two occasions, that he was a mandated leader of Bougainville – seemingly to add weight to his argument. Yet, in spite of the Minister’s stated opinion on the track record of the President, it was just last year that Momis won the Presidential election on Bougainville. It was a landslide victory.

Coming a distant second was former rebel leader, Ismael Toroama who polled 18,466 votes to Momis’ 51,382 – with such a decisive result, so who is really speaking for the people?

Such is the complexity of the Bougainville issues that a simple dichotomy between PNG and Bougainville cannot be taken for granted – for, at present the only position that can be relied upon is that PNG does not want to cede independence to Bougainville – and the irony is that it doesn’t ever have to thanks to that inadequate but temporarily effective peace agreement that gave PNG  a veto

Near Kieta - the theatre of war and of dogged resistance
Near Kieta Harbour – the theatre of war and of dogged resistance

There is, however, no doubt that Momis and O’Neill are jockeying for position as the Supremo of the Autonomous Region of Bougainville (AROB), especially considering the upcoming plebiscite and the fact that the BCL shares would prove worthless if their mining licence in Panguna is revoked – and it could be, President Momis has already threatened the Prime Minister with this consequence.

Is this a portent of things to come and is Panguna set to become the battleground?

For questions over the future of the mine remain unanswered: should it re-open? If so, when – before the plebiscite or after? …if the plebiscite is successful? …if it’s not? Which company will mine Panguna? What of the shares in BCL …and many other considerations too numerous to mention?

Independence – who wants it?

By 2019, Bougainvilleans will all have to consider this question.

We know what O’Neill thinks but we are, as yet, not aware of the position of President Momis nor of such MPs as the aforementioned Jimmy Miringtoro who may be against Momis but may still favour independence (clearly without Momis) – who knows?

PNGs Hous Tambaran (parliament)
PNGs Hous Tambaran (parliament)

In parliament last week, O’Neill highlighted how the PNG government is helping Bougainville rebuild its infrastructure (as destroyed during the war, I suppose) that he stated was needed far more urgently than independence (I am left wondering why this wasn’t attended to many years ago – is the answer because the plebiscite was not imminent then?) He also highlighted the reforms in education and health taking place on Bougainville thanks to the PNG government.

His one erroneous assertion was that a country with a population of 200,000 (Bougainville) is unlikely to be able to survive because “the economy may not be strong enough.”

Yet, the Bougainvillean copper mine Panguna, once propped up the whole of Papua New Guinea economically, of which O’Neill would be well aware. Without Panguna, in 1976, PNG independence would not have been viable. This single asset is more than able to provide a solid economic basis for a new independent state. The Prime Minister is also well aware of what re-opening of the mine under favourable conditions would mean for Papua New Guinea who still retain 19% share in BCL – and he seems to be trying to force these conditions.

PNG wants to keep Bougainville in the fold
PNG wants to keep Bougainville in the fold

It is, however, reasonable to expect that Mr O’Neill would not want Bougainville to secede – no country or nation willing cedes territory – and it might be equally reasonable to assume that, on the opposite side of the tracks, the ABG would want it – but in that assumption you’d be wrong.

It is not yet known what position the ABG favours, it seems to be sitting back waiting for the best offer – Momis vacillates. At present he is saying that the people will decide, as indeed they will – but leaders should lead from the front, not behind.

If all that is not confusing enough, we have not yet taken into account the other important and major stakeholders in Panguna, the affected landowners who are holding some of the trump cards. Do they want independence and/or the mine to reopen? Well, yes, no and that depends.

The Landowners

The gifting of BCL shares from Rio Tinto and the subsequent re-gifting of them directly from the PNG government has managed to stir up a hornets nest in Bougainville.

President Momis, Prime Minister O'Neill and head of Me'ekamui, Chris Uma - three of the main actors in the current saga
President Momis, Prime Minister O’Neill and head of Me’ekamui, Chris Uma – three of the main actors in the current saga

To resolve the situation, the ABG government called a meeting of all the landowning stakeholders ,on 26th August, with a view to obtaining a consensus that favoured the government’s position.  Momis got it. A resolution was signed by 10 parties including a signature purportedly from the Chief of Chief’s of the Me’ekamui Government of Unity (MGU).

The resolution refused the shares from the PNG government on behalf of the landowners and suggested that they gift them to the ABG instead.

In reality, there was no consensus.

By 28 August, the chairman of one of the affected landowner groups – a group that had signed the resolution, described a social media posting by a chairperson of another group that was a signatory, as being “misleading.”

In the same email he stated that Mr Philip Miriori, President of Me’ekamui did not sign the resolution supporting the ABG’s stance. This notwithstanding, there is a signature above the title ‘MGU Chief of Chiefs’ on the resolution. The signature is too long to be that of Chris Uma, it is otherwise illegible – I don’t know who signed it.

(I am becoming terminally confused about who is the head of Me’eakamui – Philip Miriori, Chris Uma, or this Chief of Chiefs that signed the resolution.)

The original aforementioned chairman finishes his email by saying:

As people mandated [there’s that word again] by our long-suffering Landowners of Panguna…we will not stand by and watch our ABG Government become a monster by convincing our ignorant people by so much sweet talk especially up to date our legacy issues are still evident on the ground.”

The legacy issues

The mine site needs repatriation - there are frequent landslides caused by the giant pit
The mine site needs repatriation – there are frequent landslides caused by the giant pit

The legacy issues consist of the reparation to the Panguna site and/or compensation that is owed for damages. Rio Tinto has not made any, nor has it offered to do so in the future.

Many of the landowners want this issue pursued vigorously.

One leader of a landowner group expressed the view that both the National Government of PNG and Rio Tinto be sued for the environmental damage but in a separate legal opinion I have sighted, addressed to some of the affected landowners, BCL is identified as the correct entity to sue.

How ironic, with this new share transfer/gift, the landowners could be potentially suing themselves and the ABG for damages, if they take up the proffered shares they would own 53% of the company.

Legal opinion to the chairman of a landowner group stated that the divestment of Rio Tinto of its interests in BCL makes the prospect of compensation unlikely and the writer goes on to warn that the share transfer potentially creates a conflict of interests between the ABG and the landowners

The interests of the ABG and the Landowners are not aligned and potentially diverge rather than converge.

Mining is, once again, polarising the people of Bougainville. How this will be resolved is anyone’s guess and throw an independence vote into the fray for good measure and there’s cause for concern.

For while some stakeholders have expressed the opinion that maintaining the peace on Bougainville is the single and most important task of the ABG in Bougainville at present, others have been far more belligerent.

Arms and the rebels
Arms and the rebels

In a recent interview with Radio NZ, John Jaintang, described as a special envoy to Mr Chris Uma the leader of Bougainville’s Me’ekamui rebel group, has accused Bougainville’s leaders of breaking the peace process by engaging with Rio Tinto and BCL.  Mr Jaintang says that “the leaders of Bougainville have gone back to bed with the enemy.”

Ominously, he goes on to state that Me’ekamui remains “outside the peace process, ” and warns that “Me’ekamui has 100% of the arms.”

In summation

There are many self-confessed mandated leaders in this melee who are refusing to lead. While the minutiae is being attended to, the big picture is being neglected.

How to vote responsibly in the plebiscite, taking into account all of the possible issues, is a vital measure to disseminate and they need to hear it from their government. They know where the national government stands but, to date, they are getting conflicting messages from the ABG.

Yet, coming through loud and clear was the special envoy from Me’ekamui whose point, if I’m not mistaken, in saying that Me’ekamui has all the guns, is that the rest of you had better watch out.

This could well be an ominous threat if O’Neill, on a successful vote of ‘yes’ to independence, decides to exercise the ultimate folly of the peace agreement: the proverbial ‘get out of jail free’ card for the Government of PNG – the right of veto over the decision. In my opinion, O’Neill will not hesitate to use it.

Having said that, clearly a ‘no’ vote would be less problematic for the Government of Papua New Guinea as it would give them the renewed mandate in Bougainville – a clear indication of their right to rule.

And so the ‘courting period’ between PNG and Bougainville intensifies. It’s a period when it’s likely that PNG, like an anxious suitor, will be especially considerate of the needs of Bougainville, even generous.

When and if Bougainville succumbs to seduction and the courting period is over, with no more political leverage left, what then?  Those who do not heed the lessons of history are doomed to repeat them.

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Moti in Papua New Guinea: Part 1

It’s a sad truth that precious few political scandals in Papua New Guinea reach a satisfactory conclusion: they tend to erupt violently only to soon be forgotten (and often forgiven) as the next crisis or sensation overtakes and overshadows.  It is why PNG Echo has a category ‘Lest we forget’.

However, in true PNG fashion, this category has been overlooked lately as PNG Echo has become swept up with current political events.  It’s time to address that irony by revisiting the Moti Saga.

The Moti Saga caused a serious diplomatic stoush between Australia and countries of the Pacific – most notably the Solomon Islands and Papua New Guinea – but not only – Fiji and Vanuatu were involved too.

In the ensuing years, myth has overtaken fact and there are many misconceptions about what really happened.

The Journalist...
The Journalist…

My involvement with the Moti case and Julian Moti dates back to 2009 when I first interviewed him – and continues to this day

As a political scientist, I was appalled at his treatment and the egregiously bad behaviour of authorities in many jurisdictions and since the first article there have been dozens more – all revealing what both the Australian authorities and, sadly, the Australian press did not want the public to know.

Three years later, the High Court of Australia agreed with what Moti had always avowed and what I had been trying to disseminate, with varying success, through a reluctant media.

This is what happened in Papua New Guinea.

By Susan Merrell

No one would accuse Julian Moti of being politically naïve. When he accepted the position as Attorney General of the Solomon Islands in 2006 he knew there were powerful opposing forces.

..the Solomon Island's Prime Minister...
…the Solomon Island’s Prime Minister…

None so powerful as the Australian authorities that were having difficulty accepting a change in attitude towards their role in the Solomon Islands brought about by the new Prime Minister, Manasseh Sogavare.

Sogavare had, over time, become increasingly critical of the intervention of the Australian-led Regional Assistance Mission in the Solomon Islands (RAMSI). Moti backed Sogavare’s position.

Australia’s best interests would be served by a quick removal of Sogavare and his backers.

So when Moti learned that the Australian Federal Police had begun a new investigation into a charge of sex with a minor (a charge that had been thrown out of a Vanuatu court almost a decade previously – Moti was found to have no case to answer), he braced himself for the ‘smear campaign’.

This was how they would discredit him, he reasoned. It was politics and politics is dirty.

But, even though Moti was in Papua New Guinea on his way to Honiara to advise Sogavare how to defeat a parliamentary motion of ‘no confidence’ against him in September 2006, and though he was aware that the Australians would be hoping that the motion was successful, he still did not foresee what would happen next

Unlawful

It must be nerve racking to arrest a lawyer. Lawyers have an air of arrogance buoyed by the confidence of knowing the law, their rights within those laws and how to exercise them. A wise person would be very sure of their grounds before making such a move.

...the then PNG Deputy Prime Minister.
…the then PNG Deputy Prime Minister…

Moreover, in Papua New Guinea’s international airport on September 29, 2006, it was no ordinary lawyer that was arrested. It was the Attorney General elect of the Solomon Islands, Julian Moti, in transit to Honiara to take up his position.

The now PNG Opposition Leader, Hon Don Polye, in a statement to the PNG parliament (2011) on the Ombudsman’s Commission Report (into the Moti issue) reminded parliament:

Mr. Moti was not an ordinary person. He was the Highest Law Officer of a Sovereign nation. He was the Attorney General of Solomon Islands. He deserved to be treated with decorum and proper protocol of a foreign dignitary.

Polye continued:

MR SPEAKER, not only was Mr. Moti deserving of decorum and protocol, (as we would expect other countries to treat our Attorney General), Mr. Moti was also an International Protected Person under the Convention on the Prevention of Crimes Against Internationally Protected Persons including Diplomatic Agents 1973 (“the IPP Convention 1973”) to which PNG became a signatory in 2003. Under the IPP Convention PNG was obligated to protect Mr. Moti, who qualified as a “representative or official of a State” and grant him safe passage as the highest ranking law officer of Solomon Islands.

The Arrest, Extraction and Detention of Mr. Moti by our Police, was in breach of our International Law and our International Obligations under both the Chicago Convention 1958 and the IPP Convention 1973.

So where was the Arrest Warrant and why was Moti removed from the transit lounge without the correct immigration documents and visas? It’s questions such as these that lead one to suspect that there were compelling forces at work – even more compelling than the law.

How the arrest was effected.

When Moti arrive in Papua New Guinea, he had been travelling for almost twenty-four hours. It’s no simple matter getting from India (where Moti had been an academic) to the Solomon Islands. He took the quickest route – to Singapore through Papua New Guinea, onto Honiara.

Had Moti known what was in store he may just have chosen the long way round.

...and the Attorney general
…and the Attorney General of the Solomon Islands

For there was a reception committee waiting at the transit lounge of Jackson International Airport. It wasn’t welcoming or befitting Moti’s status.

Step aside,

was the instruction as Moti’s travel documents were handed to an awaiting, unidentified, Australian man. After perusing the documents, the Australian conversed with another Papua New Guinean man who approached Moti. Identifying himself as a police officer with the Transnational Crime Unit, he informed Moti he was under arrest.

Why am I under arrest,

Moti demanded to know.

I don’t know.  My seniors will tell you when they come.

The Police Officer replied.

Where’s the warrant for my arrest,

Moti asked

I don’t have it, it’s with my seniors,

the increasingly rattled policeman responded.

Clearly agitated by Moti’s questions, the police officer waited anxiously for his “seniors.” He knew who Moti was – he was well-aware of his position.

The seniors never did arrive – neither did the Arrest Warrant. And in spite of Moti not having the required documentation to enter Papua New Guinea, he was taken from the airport to a prison cell at Boroko Police Station.

The Machiavellian Australian figure appeared to direct the proceedings, the Papua New Guinean police carried out the orders.

In the Boroko cell.

The cells at the Boroko Police Station are hot and oppressive. There’s no air conditioning.

Squalid habitations for the wretched of the earth,

is how Moti described them.  By this time Moti was indeed wretched.

I remained in a state of shock throughout the day,

wrote Moti of his incarceration.

I had not been given anything to eat or drink. I had never felt so dejected in my entire life. The stench in that cell was overpowering.

Moti became ill and was vomiting. He was having trouble breathing. He had no access to his asthma medicine, which was in his luggage that had been taken off the plane bound for Honiara but had since gone missing.

Moti’s lawyer in Papua New Guinea, Peter Pena, described the condition of the cell as “putrid.” Moreover, the other inmates incarcerated with Moti were being detained for “wilful murder and other serious crimes.”

A more ignominious fate for a high-ranking official of a fellow Melanesian state is hard to imagine, a fact recognised when Moti received a visit from Joseph Assaigo (since deceased).  The Intelligence Branch Chief attached to the Office of the Prime Minister, apologised to Moti for the bad treatment.

By this time it was already afternoon.

Moti had received a copy of the Arrest Warrant mid morning. It had been obtained from the District Court at 9.30 a.m. Moti had been arrested at 5.30 a.m.

Mr. Moti, had in actual fact been arrested, extracted from the International Transit Lounge of the airport and held in police custody for over four hours at the behest, direction and supervision of the Australian Government without even a Warrant of Arrest.

wrote Peter Pena incredulously in his affadavit

Moreover, in the abovementioned statement to parliament, Hon Don Polye admitted Papua New Guinean culpability, stating:

MR SPEAKER, the most important fact that has eluded the media and the public eye for the last five (5) years that I must remind this House is that Mr. Moti has not committed any crime in Papua New Guinea. Mr. Moti did not commit any offence in PNG. Mr. Moti has not broken any law in PNG, either on or before the 29th of September 2006.

MR SPEAKER, there were no charges laid against Mr. Moti at the time of his arrest – for arrest, extraction from the International Lounge [Jacksons Airport] and lock-up. You can’t lock up international transit passengers without any charges. But that’s what we did.”[original emphasis]

Australian Federal Police and RPNGC - in cahoots?
Australian Federal Police and RPNGC

Furthermore, Moti’s lawyers (including, now Acting Judge Danajo Koeget) noted numerous legally questionable premises on which the Warrant of Arrest had relied including an old extradition law that had since been repealed and replaced.

It was clear to Pena and Koeget that this document had been written in indecent haste and with scant regard to the laws of Papua New Guinea.

Nevertheless, and to the lawyers’ astonishment, the magistrate refused to discharge Moti but took it upon himself to grant bail.

So, in spite of Assaigo’s expressed regret at the bad treatment of Moti, the Solomon Islands’ Attorney General elect was left for twelve hours in a prison cell with murderers.

It was a cell that stank of human faeces, urine and sweat. He had not been allowed a shower or a change of clothes.

Ominously, that afternoon, Moti had also been made aware of plans to keep him away from Honiara. If he was to believe Assaigo he had every reason to fear for his life. In Moti’s affidavit to the Queensland Supreme Court he recounts this conversation that occurred at Boroko Police Station:

You watch your back, Moti,

Asaigo warned.

“The stakes are high. You’ll be finished. This whole intervention is making a lot of Aussies very rich. We’ve kicked them out. [most likely talking of the aborted Enhanced Cooperation Program], they’re kicking you and Sogavare out before you guys can kick them out too.”

Late that afternoon, by the time Moti was released on bail, he was shaken and physically ill. The lawyer’s confidence had deserted him. Clearly, the law could not be relied on to keep him safe. He was a marked man.

What happened next?  Stay tuned.

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Hold on Papua New Guinea: Get the election you deserve.

by PNG Echo

Papua New Guinea’s political opposition has just two weeks to oust the Prime Minister if they want to get their hands on the government cheque book before the next election – and they do – desperately.

They’re pulling out all the stops.

As I write, there should be a decision being handed down by the Supreme Court as to the recalling of parliament to allow a motion of ‘No Confidence’ to go ahead. With the three judges sitting on the case being Mikail J, Salika DCJ and Injia CJ, I don’t like the chances of the government winning this.

The opposition are likely to get their chance at a Vote of No Confidence – whether they win it, is another matter entirely.

But they’re in there trying!

Bring out the big guns

Strange bedfellows
Strange bedfellows

They’ve got former Prime Ministers Sir Mekere Morauta and Sir Michael Somare joining forces in the attempt to depose the Prime Minister and asking other MPs to join them in a press statement that is the most hypocritical and self- serving document imaginable.

These men live in a very fragile metaphoric ‘glass houses’, yet they insist on throwing stones.

The two masters of the ironic (Morauta and Somare) are saying:

As former Prime Ministers we have made our choice, and we ask our fellow Papua New Guineans to join us in rescuing our country. We cannot, through inaction, see our democracy and the institutions that support democracy ruined. The nation’s future is at stake. Today we are declaring that the Prime Minister must stand down, for the good of all Papua New Guineans.”

For the good of all Papua New Guineans? When did these two have the good of Papua New Guinea foremost on their agenda?

Sir Michael was the architect and founding father of what Wikileaks called “a dysfunctional blob” and when Wikileaks made a comment on the possibility of Sir Michael coming back into power after the 2011 political coup, they referred to the Somare regime as

…a cesspit of corruption, incompetence and mediocrity.

Then again, Sir Mekere Morauta presided over what the Prime Minister has described as “the lost decade” with opportunities and good times squandered.

They are proposing a rescue plan that, on scrutiny, is actually a plan to make a plan. – they provide no solutions but plenty of criticism – all wreaking of gross hypocrisy.

They say:

The past five years of Mr O’Neill’s leadership have been characterized by mismanagement, waste and corruption on an unprecedented scale.

That’s not right.

If we’re talking mismanagement there are plenty of precedents in the Prime Ministership of both Somare and Morauta. In fact, let’s hear from Sir Mekere on what he thought about the management of PNGs finances during the Somare era,

As Minister, Arthur Somare regarded the SOEs [state–owned enterprises] as toys to be owned to glorify his image.

He said that the Somare family regarded these SOEs as their “honey pot”

It’s an interesting criticism when you consider the similar one the Prime Minister made of Sir Mekere when he recently said that that the

“…ongoing stream of hate and malice is all about the former Prime Minister trying to undermine the Government to keep control of the Sustainable Development Program (SDP) money…[Morauta] thinks that if there is a change of Government he might get to stay on and keep spending the money belonging to SDP [Sustained Development Program associated with compensation for the OkTedi mining environmental damage].”

The Founding father of the dysfunctional blob
The Founding father of the dysfunctional blob

As for corruption, well the ‘Father of the Nation’ is still allegedly at it (see here) and it would be more important to him than ever, now that he’s announced his retirement, that he install a government that would be sympathetic to his, and his family’s, ongoing needs.

No, neither of these two has earned the right to access the public coffers -especially not prior to an election that would recognise either of them as the mandated incumbent – and that’s unlikely to happen ever again making them no different to thieves, taking what doesn’t belong to them.

To election…

The question has to be asked why the opposition so desperately need access to the state’s coffers, doesn’t it?  What plans do they have for money belonging to the people?

These two weeks are so crucial to the Opposition because if they depose O’Neill after this small window of opportunity, then it will trigger an election – and they will have to go to that election without the benefit of the public purse.

Make no mistake, these next two weeks are nothing to do with the good of the nation and everything to do with the financial ambitions of the Opposition who’d like the trough for their snouts.

They’ll be quiet come the end of July – mark my words. The good of the nation will be forgotten.

Hold on PNG – get the election you deserve.

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Student protests: the missing Ingredients

By PNG Echo.

Student protestors in PNG with their den=mands
Student protestors in PNG with their demands

They say that those who don’t learn from history are doomed to repeat it. Here are a few historical lessons I’ve dug up for the protesting students of PNG to keep in mind.

What’s the issue?

On initial reflection, it seemed to me that the difference between the protests of the PNG students and other past student protests elsewhere in the world is that the PNG protests have been partisan and blatantly political, right from the word go – targeting one man, not even a government or a party and that’s not usual.

Be young and shut up - the advice of the soixante-huitards (students of 1968) to President de Gaulle
Be young and shut up – the advice of the soixante-huitards (students of 1968) to President de Gaulle

For even though the most famous of student riots – Paris 1968 – eventually adopted the slogan “adieu de Gaulle” (goodbye de Gaulle – the then French President) they had begun by a revolt against what the students considered to be outmoded and repressive rules – specifically that they could not have a member of the opposite sex in their dormitories. They wanted the right to have unbridled sex with each other.

The reasons for the French protests became very diffuse and were badly articulated. They were more an attempt at cultural and social revolution against the backdrop of a conservatively repressive government. They arguably succeeded in their cultural and social goals, but politically, they failed miserably.

When De Gaulle called an election in response, far from it being ‘adieu de Gaulle’ it was ‘bienvenue’ as he was returned with an even larger majority than before.

The lesson PNG students can take from this historical episode is that however noisy and disruptive they become, they should not assume that they are speaking for the majority, nor assume that others will follow their political lead.

…but wait…there is a precedent

Although not usual, there was a situation in 1992, in Brazil, that closely resembles the causes in PNG with the Brazilian students having a similar political demand

"Fora Collor" -Out Collor. The student demand for the impeachment of Brazilian President Fernando Collor de Mello
“Fora Collor” -Out Collor. The student demand for the impeachment of Brazilian President Fernando Collor de Mello in 1992

They called for their President’s impeachment after the President’s brother revealed a corruption scam in which the president was involved.

There followed a Commission of Inquiry the results of which were accepted on the floor of the lower house, that then referred the president to the Chamber of Deputies who progressed the charges to the Senate that then proceeded to hear the charges in an impeachment trial where the President of the Supreme Court was presiding officer.

But while the underlying reasons are similar, that’s where the similarities end.

You see, the whole of Congress was against the President – as was, apparently, the media (yes, a neutral media is indeed a myth – everywhere).

On the other hand, O’Neill has unprecedented political support and although the Prime Minister has been referred to the leadership committee in a situation similar to the President’s referral to the Senate Committee, this has yet to progress.

What’s more, the mainstream media is not campaigning against O’Neill and is generally considered to be sympathetic to him– although there is a very noisy social media backlash – mainly orchestrated by impotent political opponents.

But back to the Brazilian President:

He didn’t resign until the last day of the hearing (it’s a myth that every politician willingly falls on their sword), knowing he was losing the case and hoping to avoid the eight-year suspension penalty.

He didn’t avoid the suspension penalty and was impeached. Success, I hear you say, something to buoy the PNG students. Well…it was extremely limited.

When the, by then, former Brazilian President was later charged criminally, all charges were dropped as the prosecution couldn’t make the case and by 2006, he was back in the Brazilian Senate and in 2015, he’s again facing corruption charges.

The French have a saying: Plus ça change, plus c’est la même chose – the more things change, the more they remain the same. It’s something to think about.

The missing Ingredients

Prime Minister O'Neill - has responded more than adequately to the students' expressed issues.
Prime Minister O’Neill – has responded more than adequately to the students’ expressed issues.

The students have presented their issues to the Prime Minister and he has answered them, more than adequately. Now all they have left is a demand that he step down. Why? I may remind you that the prosecution has yet to establish that any crime has been committed – so he’s an accessory to what? The arrest warrant was always previous, cavalier and political.

Before the students continue with this campaign they’d do well to remember that the Prime Minister still retains the confidence and the backing of those with the power – including a large part of the electorate (that silent majority that the students claim to speak for).

The students no longer have any issues that are not partisan and blatantly political and, if history is any indication, to effect their political goals they are going to need more than a handful of desperate political wannabes and has-beens backing them.

It’s becoming more and more evident that the students’ latest efforts are nothing short of early election campaigning for political interests, at best, or a blatant use of their enthusiasm to effect an agenda that over ambitious vested interests have been unable to do at the polls, at worse

Plus ça change…

 

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Slip rule applications are rarely successful.

By PNG Echo

Justice Derek Hartshorn - Leave denied.
Justice Derek Hartshorn – Leave denied

That the leave sort by lawyers for the Prime Minister to apply the ‘Slip Rule’ to the recent Supreme Court ruling (lifting the injunction on arrests and harassment of the Prime Minister and his associates) was not granted today, is not surprising.

I don’t believe there is any case which has actually been granted leave to make a Slip Rule Application since the rules were changed in 2012 requiring that leave be granted.

What’s more, in this particular case the Justices who handed down the decision to lift the stay (Hartshorn, Makail, Sawong) are the ones that heard the leave application and would be naturally hostile to an application that suggests they erred.

A more satisfactory outcome would have been to have heard it argued before Judges with no pre-conceived ideas about the matters at hand – which, I concede, is becoming increasingly difficult in Papua New Guinea at the moment.

Interestingly, although the Justices stated that they would give an ex tempore decision, what they ended up doing was reading from a lengthy and widely-researched judgment that quoted extensive case law – including cases from Australia.

Nevertheless one of the PNG cases that counsel for the Prime Minister put forward in her submissions, MRA & Ramu Nico v Koroma (2015), the Justices resolutely refused to follow.

A decision that was 5 years in the making was discounted by this bench of the Supreme Court in less than an hour.  Indecent haste?

Patently, this case had been decided even before counsel made its submission in court this morning. There is little likelihood that this judgment could have been researched and written in the lunch break. It had been pre-judged (the verb from where we get the noun prejudice).

In practical terms, it means that their previous decision is upheld and the PM, his legal team and other people covered by the order can be arrested.

That doesn’t mean they should be.

For the police to be running around willy-nilly arresting people just because they can, is madness. Only in Papua New Guinea!

Citizens and others residing in Papua new Guinea need to feel secure that the law protects them, not declares open season on them – as has been suggested by many unrestrained commentators.

I believe that the stay order on the arrest of the Prime Minister on the Paraka matter is still extant – the court has not lifted this.

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All fingers point to the PNGSDP

By PNG Echo.

The first section of this article will be old news for many. If so, skip it and go to the second heading – but for those who need context, keep reading because lately things that haven’t made sense, suddenly are starting to, and knowing the context sets the scene for the intricate web of treachery.

Environmental disaster and compensation

It was always blood money –

PNGSDP was set up to obtain legislative immunity from prosecution [for BHP] for environmental damage to a great river system, a human and environmental tragedy that can be even observed from the moon,

writes Paul Yabob

Sir Mekere Morauta
Sir Mekere Morauta

Sir Mekere Morauta gave BHP clemency… PNG did BHP a favour that it did not deserve.

It was Mekere Morauta’s sell-out deal that would guarantee Morauta a lucrative position well past his political career and…

To protect it [the PNGSDP Fund] with the change of government, he [Morauta] has been appointed to head PNGSDP,

explains Yabob.

And the fund has rewarded its board members well, with reportedly comparatively meagre benefits for the people of the Western Province where the incidence of Tuberculosis, especially the drug-resistant kind, is beyond alarming and something that the Fund could and should have tackled before now. Tuberculosis can be eliminated. This notwithstanding the late, great, eco-warrior Dr Nancy Sullivan wrote:

In 2010 PNGSDP brought $40 million of the Singapore fund back to PNG to fulfil its program mandate. But they spent $10 million on their own administration, and a further $1.5 million on Board fees.

So, after the sell-out deal, did BHP go scurrying back to Australia with its tail between its legs – no it did not. Dr Sullivan, takes up the story again:

BHP and its lawyers went about setting up the structures [for the fund] and drafting the relevant agreements.  BHP then told the PNG Government that to start up the fund in Singapore – so that interest is readily available and PNGSDP can sustain itself from the beginning – there would be no need for any start-up capital from PNG itself.  BHP LOANED PNGSDP USD$120 Million for the fund in Singapore.

And when someone gives a loan – they give terms to secure that loan. The terms BHP gave were that UNTIL the loan was 100% paid back, BHP would nominate 4 of the 7 directors on the PNGSDP Board.  BHP would retain a majority on the PNGSDP Board.

Since its inception 12 years ago, [article written in 2013] PNGSDP has been controlled by BHP through its Board…  BHP has never left PNG.

The Board members.

Lawrence Stephens
Lawrence Stephens

A lucrative position with PNGSDP was not only enjoyed by Sir Mekere Morauta but also by Transparency International’s Lawrence Stephens and neither he nor Sir Mekere blinked when a dubious character was appointed to the board by then Treasurer Don Polye with the board’s blessing.

Rex Paki, was about as controversial as you can get – where was the due diligence or the caution in appointing a man that over the previous 20 years had appeared before two Commission of Inquiries (Finance Department and National Provident Fund), two Public Account Committee Inquiries, and a Supreme Court case where he was severely criticised with the judges finding him “evasive and dishonest?”

Rex Paki
Rex Paki

In fact, Paki seems to be suspected of running a Paraka-like scheme but with accounting fees rather than legal ones where the Public Curator’s Office had paid RAM [his consulting firm] K1,561,062 (approx US$640,000), without the existence of a contract, proper invoices, or evidence that any work had been done, according to PNG Exposed

Nevertheless, here he was, in charge of millions of dollars belonging to the people of Western Province.

The irony is we have men like Stephens and Morauta being held up in the international media as anti-corruption warriors, but what did they do about Rex Paki for all these years?”

asks PNG Exposed

Good question hey?

Mind Mapping – the burning question of who and what’s funding anti government forces?

Who is funding, Koim, Damaru, Gitua, and anti-government, NGO and activists?

Lucas Kiap
Lucas Kiap

Well the biggest clue was when Lucas Kiap of the NGO PNG Anti-Corruption Movement for Change, publicly acknowledged a debt to Mark Davis, the spin doctor from PNGSDP who was unceremoniously deported from PNG for “playing politics” against the conditions of his visa.

Mark davis
Mark davis

 

It started me wondering and here are the links I found that connect the main players to each other. It appears that all roads track back to Mekere Morauta and the PNGSDP.

 

The players – the links

  • Rex Paki: He was appointed to the board of PNGSDP by the Treasurer, who was Don Polye at the time. He was also involved in the controversial Paga Hill Development.
  • Sam Koim: Racking up bills aplenty with no visible means of support. Sam Koim also was involved in investigating the Paga Hill Development.  Dr Kristian Laslett, who heads ISCI’s Papua New Guinea Research, claims that errors in the Task Force Sweep assessment are “seismic” and “can’t be put down to mere ignorance or inexperience. He suspected something more sinister. Supposing Koim’s support base was Mekere Morauta and the PNGSDP, then his reluctance to find any wrong doing in this matter starts to make sense.
  • Lawrence Stephens of Transparency International who has been a bitter critic of this Prime Minister but a staunch defender of Rex Paki whom he says has not been convicted so should be given the benefit of the doubt. Now there’s a hypocritical position. Stephens lost his job with PNGSDP when the state reclaimed OkTedi.
  • Mekere Morauta – the leading critic of the Prime Minister – must be worried that he will lose control of the fund and the lucrative fees he’s collecting.
  • Mark Davis, the spin doctor for PNGSDP – who’s still “playing politics” apparently.
  • Lucas Kiap – one of the protagonists of the unrest with a debt to pay to Mark Davis.
  • Kerenga Kua – linked to Rex Paki when the courts were informed that the invoices Paki was failing to produce could be found at his office.
  • Don Polye, appointed Rex Paki to the board of PNGSDP.

All of these people are interlinked. Could it be that what’s sustaining them all is the PNGSDP?

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Another day, another Supreme Court decision

By PNG Echo.

ppellant: Minister for Finance - James Marape
Unsuccessful appellant: Minister for Finance – James Marape

Minister James Marape has today (Tuesday 9 April 2016) had his appeal dismissed unanimously by a three-man bench of the Supreme Court (Justices Hartshorn, Makail and Sawong).

The news was broken on social media and anti-government forces are hailing this latest Supreme Court decision as a David-and-Goliath type victory for the renegade police officers (Damaru and Gitua) with the Prime Minister and Minister for Finance said to have been “trashed” (sic) by the Supreme Court (even with their expensive QCs),.

But the truth of the matter is that the decision is on a procedural matter and is generally insignificant except for one major consequence.

The consequence

Justice Bernard Sakora still to preside over the substantive issue
Justice Sakora to preside

The most far-reaching consequence of the dismissed appeal is that it also served to lift the blanket stay of any arrest warrant (on any matter) for Minister Marape, the Prime Minister and their lawyers etc.

However, the Prime Minister, in a press statement released today, after the decision of the Supreme Court in the Marape case, reminded us that:

The case relating to legal fees for the Paraka matter remains outstanding before the court through a judicial review by Senior Judge, Justice Bernard Sakora, which also reaffirmed that the warrant of arrest be stayed until the judicial review is heard.

In other words, there is still a stay on the arrest warrant for the Prime Minister in the Paraka matter and that is a significant because an arrest is all that the anti-government forces have on their mind and their agenda.

This is war

Prime Minister O'Neill - his arrest is their only goal.
Prime Minister O’Neill – his arrest is their only goal.

So, while a small battle has been won today, the war continues unabated – and make no mistake, for democracy, it is important that the Prime Minister wins.

For all the proceedings have base political motivations, where the only goal is to have the Prime Minister arrested so that he is forced to step down from office. There is no discernible aim beyond this.  Indeed, all the proposed (aborted and abortive) protest rallies have this as their only objective. Why?

In reality, it is known  that any charges against the Prime Minister are unlikely to be proved – but that doesn’t matter – the damage would have been done by then, their goal effected. But there would be far-reaching ramifications -not only to this current Prime Minister but all those that follow him.

In today’s press release the Prime Minister had this to say

As the serving Prime Minister of the day, I cannot allow a precedent to be set that will render future Governments weak and ineffective.   Once a precedent is set then we know every future Government will become bogged down by malicious attempts to pursue arrest warrants by people outside the Parliament, simply for the reason of attracting media attention and applying political pressure.

To all those who ask time and time again why the Prime Minister does not “submit” himself to the courts, I think that question is now asked and answered.

The Prime Minister, in the aforementioned press statement, reiterated his confidence in the courts of PNG (whereas, on the other hand, I’m not nearly so confident) but stated he will not submit himself to the malicious and rogue attempts to use law enforcement as a political weapon.

That’s a response from a strong and responsible leader.

Political Inheritance

Lawyer, Paul Paraka - the man at the centre of the proceedings.
Lawyer, Paul Paraka – the man at the centre of the proceedings.

Every government inherits that which went before, sometimes it’s a golden chalice, sometimes the chalice is poisonous.  The Prime Minister “inherited” the Paraka situation and he rightly states:|

The issues at the centre of this matter occurred before I was Prime Minster.  Pursuing me on this matter is nothing but an attempt to influence politics from outside the Parliament and to undermine the authority of the Office of the Prime Minister, and the stability of the national government.

So, let’s clear away the debris and look at the real issues of this case and the reasons for the attempts to implicate the Prime Minister.

For also in the press statement the Prime Minister said:

We all know who are the real financial beneficiaries of the Paraka transactions, and only time will tell when these identities will be revealed.  I look forward to the facts seeing the light of day on this issue.

Last week, in parliament, the Prime Minister named Don Polye and the THE party as two of the financial beneficiaries. He has also stated that the evidence is with the police – perhaps this may be worth the self-proclaimed, misnamed ‘anti-corruption’ forces pursuing before they finish their ‘dance of joy’ over this small and insignificant victory.

This pursuit of the Prime Minister is nothing like a ‘David and Goliath’ battle for David was on the side of righteousness – this is more like a sniper attack on the fabric of democracy in PNG.

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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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