Just 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.
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.
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.
In the National Court, yesterday, Justice Makail adjourned two motions that arose as a result of Sam Koim’s alleged contempt – when he published material about the Task Force Sweep’s case in contravention of a court order that expressly forbade him.
The first motion asked the court to dismiss the entire judicial review into the disbanding of Task Force Sweep (the substantive matter) on account of the breach of the order while the second motion sought to have Sam Koim punished for the contempt.
Justice Makail, in his wisdom, decided that the substantive matter should be heard prior. What the…?
So what’s the point of contempt laws?
The whole point of the laws of sub judice contempt and the point of the court’s ruling that Koim not publish anything about this case, was to avoid the case being tried in the court of public opinion and risk that public opinion influencing the court’s decision. (Me, I am of the definite opinion that a full-page advertisement in a national daily newspaper just may be construed as carrying some influence – is there even a question?)
Furthermore, it has been argued by Professor Michael Chesterman, Professor of Law and Acting Judge, District Court of New South Wales, that “stopping the trial and fining the media [the offender] – should either occur together or not occur at all [in the finding of a charge of sub judice contempt].”
Under the circumstances, it seems logical that the contempt charges be heard first as they will quite likely have a profound impact. in law and in actuality, on the substantive case – indeed if Koim is found guilty and the motions succeed there may not be a substantive case to try.
So where’s the logic in this ruling? In making this ruling, Makail has managed to effectively make at least one of the motions absolutely pointless – that’s not how it should work.
The PNG courts, yesterday, (Tuesday 23rd February) handed down two decisions in cases where the Prime Minister was the plaintiff. It was a day of mixed legal fortunes for him.
The first case decided in the National Court and presided over by Justice Colin Makail, was regarding contempt, allegedly committed by Koim. It was dismissed because of a procedural technicality. It was only a momentary and pyrrhic victory for Koim as the court informed the plaintiff that he was still free to bring a charge of contempt against Koim (using correct procedure) – which he is believed to be doing (according to lawyer Tiffany Twivey who said so in open court).
The second was in the Supreme Court where a one-man bench presided over by Justice Bernard Sakora granted the Prime Minister leave to appeal a lower court decision to join Police Officers, Damaru and Gitua to judicial review proceedings. The judicial review is seeking to establish the legality (or not) of the arrest warrant on the Prime Minister authorized by the Chief Magistrate. This latter proceeding was also stayed to allow the first case to be decided.
Social media in conflict with itself
On one hand, social media is hailing Justice Makail as the peoples’ champion and the judiciary as the saviour of Papua New Guinea and on the other bringing into question the integrity of the judiciary because of the unpopular decision of Justice Sakora (even going as far as to impugn his honesty)
While social media sees issues through the prism of ‘popularity’ – a popular decision being a correct one (even in law) according to them, there will remain considerable internal conflict and confusion
And it won’t improve – for while Justice Makail may be today’s hero – he may be tomorrow’s villain – if and when he presides over the actual issue of Koim’s alleged contempt – depending on his finding.
It’s happened before with the Deputy Chief Justice Gibbs Salika when he found Jimmy Maladina guilty.
Social media hailed Justice Salika as a hero – his popularity with this demographic soared. This writer was threatened with a ridiculous charge of sedition for criticising the decision. I was told, in no uncertain terms, that judicial decisions were impeccable and were to be accepted and were not to be questioned.
So pleased were this demographic at the decision (however it was reached) that anonymous writers took to drastic measures not to have it criticised – including threatening this writer (the main critic of the decision) and exalting Sam Koim to have me arrested – notwithstanding that Koim does not and did not have that power. I was labelled, amusingly, as public enemy No 1. (Does this seem a little Quixotic to you?)
But there were tears before bedtime when the newly exalted hero did not impose a sufficiently popularly punitive sentence on Maladina – indeed some would have it that the penalty was nothing more than a slap on the wrist.
Yesterday’s rooster had become a feather duster.
Criticising the judiciary
Judges are not infallible but most good ones do not succumb to ‘singing for the choir’ (so to speak). Justice should be blind – it is the principles of law and justice with which they should be concerned – not becoming the next pin-up boy/girl for social media’s delectation.
It is healthy to assess and critique decisions coming out of the courts – it is neither healthy nor intelligent to decide on the merits of the decision based on blind loyalty to the subject of judicial scrutiny.
Law is not a popularity contest.
It would also bode well if social media would acquaint itself with the facts before commenting. No, Makail’s decision was not a triumph for Sam Koim – he won nothing except a delay in the prosecution.
Likewise for the Prime Minister – the cases have not been won but he has been granted leave to appeal an earlier decision where his lawyers allege the court had erred. It is just one step in the long and tedious process that is western law – and now the law of Papua New Guinea.
Social media has recognized itself as the country’s elite stratum – the country’s intellectuals… on the strength of the analysis and comments emanating from the most popular Facebook sites, this demographic has not moved substantially from being ‘Mangi (meri) ples’.
In Western government/law it is not the person but the principle that is important – this is a lesson that is being resisted by many – not least of all in the social media demographic.
Last week, in PNG, a judicial review, in the court of Justice Colin Makail, that was to decide the fate of International Task Force Sweep (ITFS) was vacated (adjourned) pending a motion by the defendants (the Prime Minister and the National Executive Council) that Sam Koim, Chairman of ITFS (plaintiffs), show cause why firstly, he should not be charged with disobeying a court order and/or sub judice contempt, secondly, why he should not be referred to the Lawyers Statutory Committee and thirdly why the Task Force Sweep case should not be summarily dismissed.
Lawyers for the Prime Minister and NEC alleged that a court order was breached when Koim held a press conference, released a press statement, posted on social media and took out a full-page advertisement in The National that discussed the case.
These are serious allegations as Sam Koim is a lawyer: an officer of the court and should know better.
So make no mistake: this is News – big news.
Then why did The National bury the details of the court proceedings half-way down page 6 of the next day’s (Friday’s) newspaper and the Post Courier chose not to run it until a week to the day after the decision and probably after some high powered complaints from concerned parties?
Besides, by the time the Post Courier published the outcome it was hardly ‘news’ anymore anyway.
This notwithstanding, there were two feel-good stories (or was it three?) run about Koim in the Monday edition of Post Courier, that is, after he’d been cited for contempt and before the Post Courier had found it necessary to inform its public.
However, not charged with sub judice contempt are the publishers of the Koim ‘report’: EMTV, Post Courier, The National, PNG Loop and the plethora of social media pages and blogs that carried the offending report.
It’s interesting that these news outlets were prepared to risk a charge of sub judice contempt to broadcast Koim’s message (they understood the risk) but did not report the court findings neither adequately nor in a timely manner.
This suggests that they are pushing a specific agenda – where are their ethics?
Recently, I met a former Papua New Guinean Member of Parliament and senior statesman. He commented how much he appreciated the media as “we wouldn’t know what is going on if it wasn’t for them.”
I also recall a particularly cynical statement of a colleague “if we don’t report it, it hasn’t happened.”
Do the editors in PNG, those who decide what stories are ‘newsworthy’ subscribe to that last principle rather than the first – because that’s what it’s looking like?
To that very worthy PNG gentleman, I apologize because news in PNG is sick and dying and out of the ashes is rising the promotion of a dangerous, self-serving agenda backed by unknown forces.
Plaintiffs, Prime Minister, Peter O’Neill and Acting Secretary of Treasury, Mr Dairi Vele had their application to the National Court upheld today at Waigani.
The application was pertaining to a loan acquired by government to purchase Oilsearch shares – a situation that gave rise to certain directions by the defendants, the Ombudsman’s Commission (OC ) whose constitutionality remain in dispute.
Earlier this year, proceedings were instigated for a judicial review of the Ombudsman Commission directions to stop payments on said loan
The National Court, at that time, stayed the directions of the OC in order that repayments were able to be met and the government’s obligations under the loan honoured. This was pending an application for a judicial review.
Today, the judicial review was stayed in its entirety and all the questions asked by the lawyers for the plaintiffs referred to the Supreme Court for interpretation.
Amongst the matters to be decided by the Supreme Court are whether the OC has legal authority, power and jurisdiction to issue a notice of direction to government, whether failure to comply with such a notice constitutes misconduct in office and whether the OC has the power, authority and jurisdiction to impose penalties