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?
A 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
Attorney General, Ano Pala, has today had the warrant of arrest, extant since July 2014, quashed by a unanimous three-man bench of the Supreme Court – consisting of Justices Higgins, Sawong and Batari.
The warrant had been sworn out by Magistrate Cosmas Bidar at the behest of Police Officer, Matthew Damaru.
The charge leveled was ‘defeating the course of justice’ in conspiracy with others including the Prime Minister, Finance Minister, Geoffrey Vaki and their respective counsels notwithstanding that most of these people were not a party to the proceedings at the time. The quashing of the arrest warrant means that the conspiracy charges are also not recognised.
Pala’s alleged sin, in the eyes of Detective Chief Superintendent Damaru, was to apply for the State to be joined to a matter wherein the Prime Minister and the Finance Minister had filed proceedings to legitimize (or not) bills paid by the state to Paul Paraka Lawyers by way of a declaration of taxation.
This is a most important question because if the Paraka bills are legitimate then no offence has been committed.
It is a way of getting to the truth – proof of a crime should be at the very beginning of an investigation (clearly no one has told this to Task-Force Sweep or the Fraud Squad.)
The truth is something that Police Officer, Matthew Damaru patently did not want to get in the way of a good witch hunt
I mean, how could trying to ascertain the truth be an attempt to defeat the course of justice?
Indeed, the three learned judges ascertained that Pala’s filing of proceedings
…is an act incapable of being a criminal act.
Further, they emphasized their ruling was timely (and lucky for some) as had Pala been arrested and denied his liberty, he would have had ample cause for redress.
With this decision, the Supreme Court overruled the previous decision of Justice Colin Makail in the National Court that dismissed Pala’s petition saying he had no standing to bring proceedings until after he was arrested.
Think about it: what’s the point of trying to quash an arrest warrant after its already been effected? But that’s what Justice Makail, in his wisdom decided – yes it baffles me too.
But it was not only that the charges were specious that caught the attention of the learned Judges but also the manner in which the arrest warrant was effected.
The faulty warrant
The Judges maintained that
…the warrant ha[d] received such little attention that the learned magistrate [Bidar] did not even choose whether the subject was “him or “her”.
The judgment went on:
It does not appear that any grounds were suggested to the magistrate… [although] …[t]he need to consider alternative grounds is mandatory.
Yet, even had the magistrate considered the grounds (which the bench found he hadn’t) apparently ”
None of the grounds for considering arrest referred to…could reasonably have been believed to justify the arrest of the applicant.
And so the witch hunt continues.
This is the second ruling this week that has found that the actions of the Fraud Squad have been cavalier.
For two years the Attorney General has had this charge hanging over his head – just because he lawfully sought the truth.
And then there’s the Deputy Secretary of Treasury, Mr Aloysius Hamou – described by all his work colleagues as a true and faithful public servant – who was sacrificed to the zealotry of these rogue elements in the Police Force who have become a law unto themselves.
He was also exonerated, found to be only doing his job in the purchase of the Israeli turbines matter – in fact, had he not obeyed the lawful directive from the NEC he would have been up on disciplinary charges.
I’m told Mr Hamou doesn’t enjoy the best of health, this episode, for an honest, fine and upstanding man, such as he, must have added a considerable amount of stress to his life, not to mention the loss of reputation.
Veteran former ABC Journalist and Pacific correspondent, Sean Dorney, has called the recent spate of political and judicial wranglings in Papua New Guinea “stranger than fiction,” but are they really?
It’s about power: wars have been fought for it, sons have killed fathers for it and innocent people have become a victim to it. And while the quest for power is rarely altruistic, hypocritical usurpers often invoke altruism to justify their lust for it.
And so it happens in Papua New Guinea where the desperate, wanting the head of the Prime Minister, say they’re fighting corruption. But how can that be when they ignore the main perpetrator, Paul Paraka, in favour of a dubious political target whose downfall would be beneficial to their goal of taking over government?
So who are they?
We don’t know for sure and it seems that they want to keep it that way – in fact lawyer Tiffany Twivey is of the opinion that her arrest was to prevent her from cross examining Sam Koim, on the witness stand as to the source of his funding.
It’s not lost on me [that] I was arrested the day before this final attempt to try and get the truth out there,”
Certainly the public faces of the unholy crusade are Sam Koim, and Fraud Squad officers Matthew Damaru and Timothy Gitua, but they can’t be acting on their own – they couldn’t afford to be, neither in monetary nor career terms.
Anywhere else or in any normal situation that would be sedition,
said Tiffany Twivey of their maverick arrest spree carried out in secret without the knowledge of their boss.
But not so in Papua New Guinea where actions that would be seditious in less unruly contexts are backed by judicial decisions that are often “stranger than fiction.”
For while the political support for the action of the rogue police is self-serving, hypocritical, mal-intended, it is expected – politics is like that.
(I believe that MP Kerenga Kua, sacked attorney-general and Sir Michael Somare’s former lawyer has coughed to the funding in an interview recorded by the ABC correspondent in Port Moresby and about to be aired on Australia’s 7.30 report – if it hasn’t been already.)
But nevertheless, and in spite of the separation of powers, none of this could have happened without the support of certain members of the judiciary whose rulings have oftentimes bordered on the bizarre tacitly condoning the anarchical actions of the rogue police while ensuring they remained answerable to no one.
Lately, one can almost predict the outcome of a legal case in matters involving the Prime Minister just by which judge the case will be before.
Justice Colin Makail has made some rulings that defy logic – deciding to hear a case, for instance, out of logical sequence rendering the second case potentially inconsequential, when it shouldn’t be.
It’s in the matter relating to Task Force Sweep where he decided to hear the substantive case without first hearing the charges of contempt and subjudice contempt against Koim. If Koim is found guilty of such contempt his case could (and arguably should) be thrown out – but it can’t be if it’s already been heard.
And as far as things subjudice are concerned, Justice Makail has recently queried something that COP Gary Baki published and has asked for submissions on whether it is subjudice. However, when Sam Koim published a paid full-page article on the case in the newspapers, not a single judicial eyebrow was raised – and this is in spite of the fact that it was not only subjudice contempt that could be alleged but also Koim was defying a court directive preventing such a breach.
Then there’s Justice Kirriwom who referred lawyers acting for the Prime Minister and Police Commissioner to their statutory body on a wrong premise.
Then again, Justice David Allen arguably (and I’m sure the lawyers are preparing to argue this in court) overstepped his jurisdiction by interfering in police administrative matters. His ruling directly contributed to the potentially dangerous situation where, in an attempt to bring his men into line, the Commissioner of Police had to use some of his men against others of them – something he should be never forced to do.
So why do certain elements of the judiciary appear to be politically compromised? Is the Chief Justice implicated?
The Chief Justice
This is a question for which I do not have the definitive answer – but there are things I do know, things told to me, usually in confidence, but always told with believable conviction and with a proviso that their name not be mentioned – one doesn’t cross the Chief Justice (CJ), apparently.
You see, the CJ, ideally considered to be ‘first amongst equals’, is so much more in PNG. Indeed the name of the Chief Justice, Sir Salamo Injia, is whispered in awe and trepidation in PNG legal circles, I’m told.
“My Lord and Master,” is how one Judge facetiously described the Chief Justice – and while there was certainly an element of tongue-in-cheek sarcasm with that remark, I’ve no doubt that were the CJ to say “jump” the response would be “how high.”
What’s more, the CJ has considerable influence within the Judicial Legal Services Commission (JLSC), which is the body that appoints judges. Although a five-member team makes the appointments, it is said that the CJ dominates.
It was a surprise to most when the late Justice Mark Sevua was not reappointed to the bench. Indeed, I have heard lawyers who’ve appeared before the learned judge wax lyrical about the privilege. However, he had not kept on the good side of the CJ whose dislike for Sevua was manifest when he failed to attend his funeral but left it to the Deputy Chief Justice instead.
The cognoscenti are also aware that there is no love lost between recently-arrested judge Sir Bernard Sakora and Sir Salamo either, (although there is no evidence that connects the CJ with his arrest – just a sneaking suspicion, based on recent bizarre judicial decisions).
So, it is in the best interests of a judge coming up for re-appointment – or indeed any other time – to keep on the good side of this powerful man. I’ve been told by those same cognoscenti that the CJ neither forgives nor forgets.
If that be true, then he would have a considerable grudge against this government over the impasse.
And understandably so – I still cringe when I see the footage of Namah storming into the court yelling: “Arrest him.” How ignominious to the office of the Chief Justice and the Chief Justice himself to have to cower behind the locked door of his chamber against this crass onslaught.
One has to wonder whether this crosses Sir Salamo’s mind when involved political identities come within his jurisdiction – before his courts? Revenge is a powerful emotion.
Because under the current system, it is the CJ who decides which judges sit on appeals in the Supreme Court – a considerable power – I wonder on what criteria he makes his selection?
For Sir Salamo Injia is a Chief Justice whose conscience and scruples allowed him to stop a legal case against himself and also to disregard the Supreme Court Act to deliver judgment in the second case between Prime Minister O’Neill and Sir Michael Somare after two of the judges of the five-judge bench left – it’s an ominous precedent on how Sir Salamo is prepared to wield his power.
Has he been doing that here – or am I adding 2+2 and coming up with five?
A motion brought before the National Court by the Prime Minister for Sam Koim, to ‘show cause why he should not be charged with contempt’ for allegedly disobeying a court order restraining him discussing matters before the courts in regards to Task Force Sweep has been dismissed by Justice Colin Makail today.
The learned Judge said that there were only two ways to proceed with contempt charges and that was for the courts to bring the charges or for one party to bring the charges against another – to ask a party to ‘show cause’ was a procedural error and Justice Makail ruled the motion as “incompetent” and dismissed it.
However, the Judge advised that it was open for the Prime Minister and the NEC to charge Koim with contempt and lawyer for the Prime Minister, Ms Tiffany Twivey, advised, in open court this morning, (Tuesday 23 Feb.) the intention of her client to do so.
Justice Makail, in making his ruling, dismissed the case purely on a procedural hiccough without considering the merits of the contempt allegations.
It is expected that the charges will be filed within the next week.