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.
What do Attorney General, Ano Pala, Aloysius Hamou and Francis Potape have in common?
Well, while the recent circus that was the Vote of No Confidence was keeping the whole nation entertained and distracted, in the nation’s courts, the three, abovementioned, gentlemen’s criminal charges were being overturned, quashed, and disallowed.
All three were cases being prosecuted on behalf of the Fraud Squad – featuring Messrs Gitua and Damaru.
These cases have been variously found to be incompetent, ill–conceived, or both as indeed was the case against Justice Sakora – thrown out too.
Other Fraud Squad cases still to be decided are that of lawyer Tiffany Twivey, John Mangos of PNG Power and the Prime Minister himself.
Given the precedents of Fraud Squad incompetence and overconfidence in their ability to influence the courts, that these cases should go the same way is more than likely (except if Justice Colin Makail is hearing them, that is)
The Fraud Squad are not conducting legitimate investigations into corruption but overseeing a witch-hunt.
It’s politically strategic
These rogue elements in the police force are aiding and abetting those with a political agenda to effect that agenda, illegitimately, through the courts and these three recent cases illustrate that all too well. See the details here
It’s the premise that those charged with an offence occupying high office should step down that excites the Fraud Squad and their political sponsors and urges them on to more spurious arrests.
Indeed, had the Attorney General stepped down on his arrest warrant being effected his electorate would have been without a member for the last two years and the national parliament would have been deprived of his services. And all for specious charges that held no water (as was found in the judgment).
But it is the ‘step down’ demand on the Prime Minister, in particular, that has culminated in the opposition seeking the court’s aid to force a Vote of No Confidence in the parliament – a vote that proved to have no chance of getting up – and the Supreme Court complied.
There is considerable debate in PNG as to whether the Supreme Court overstepped their jurisdiction and breached the separation of powers. More money will no doubt be expended on finding the answer to that.
That is, more money than the compensation likely to be claimed by all of those who were burned by the Fraud Squad’s incompetence and misguided zealotry.
These men of the Fraud Squad may be presenting themselves as God’s police; occupying a moral high ground that they have personally defined, but in actuality they are nothing short of loose cannons and dangerous vigilantes.
The political opposition is looking to the nation’s courts to effect a political solution that they are incapable of effecting in legitimate, political ways.
God help us all, if the courts co-operate any further – and yet, the three decisions this week give me hope that the law will triumph over vested interests.
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.
The Supreme Court, presided over by Justice Bernard Sakora, has today (23 February 2016) granted both appeals brought before the court by Prime Minister, Peter O’Neill.
The Prime Minister, represented by Twivey Lawyers and Mal Varitimos QC, had firstly sought leave to appeal the decision of Justice Colin Makail in the National Court where previously, Justice Makail had granted leave for police officers, Timothy Gitua and Matthew Damaru, to join as parties to National Court judicial review proceedings challenging the decision of the Chief Magistrate, Ms Nerrie Eliakim, to issue an arrest warrant against the Prime Minister.
They were granted leave to appeal the joining by the learned Judge.
Following on from his decision to grant this leave, Justice Sakora ordered a stay on the hearing of the issue of the arrest warrant until the appeal against the joining of the parties was settled.
The learned Judge delivered his decision verbally in court and instructed the lawyers to take out orders immediately to effect the stay on the National Court proceedings.
Justice Sakora’s written decision will be available tomorrow and it is expected that, on receiving the orders, Justice Makail will vacate the court date set aside of March 3 when the judicial review on the Prime Minister’s arrest warrant was, just this morning, set down for a mention.