The curious decisions of Justice Makail.

By PNG Echo

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

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

 

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

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

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

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

Supreme Court says – noooo.

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

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

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

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

Justice Makail, that’s ridiculous!

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

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

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

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

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

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

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

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

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

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

What the…?

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

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

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

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

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

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

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

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

NOT PREPARED?

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

Half a year, apparently.

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

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

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

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

Playing for time

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

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

Koim’s been dragging out this case. Why?

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

It’s not long until then, is it?

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

What a great outcome for Koim that would be!

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

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

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

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

Waddyasay, hey?

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PNG Power: Where’s the money (part two)

By PNG Echo.

The Fraud Squad is either grossly incompetent or corrupt – there is no third way.

The ineffective and ineffectual heads of the Fraud Squad
The ineffective and ineffectual heads of the Fraud Squad

companies related to Mr Tangit [CEO of PNG Power Ltd (PPL)]and his close relatives have received payment of K16 million from from PPL. Combined with the K15 million received from both the [East Sepik] Provincial (K10 million) and [Angoram] District Government (K5 million), it appears that Mr. Tangit and his close relatives have received K31 million through various entities for the period, 19 February 2009 to 30 September 2015.

As CEO of PPL, this represents a serious conflict of interests, even if that were all there was to it – but it’s not – the money has all been paid out, but as of October 2015 there was no evidence of even the commencement of the project referred to anywhere.

Highly confidential (and why’s that?)

The above quote was taken from a 35-page report marked ‘HIGHLY CONFIDENTIAL’ of which I am in receipt.

It was commissioned as a result of questions being asked in parliament as to why, when funds had been allocated and deposited by Members of Parliament into the coffers of PPL for the Rural Electrification Project (RE Project), these projects were not completed, were behind schedule or significantly over budget. It was the July 2015 session of parliament.

In response, on 15 September, 2015, the Minister then responsible, Hon Ben Micah along with Mr Garry Hersey Managing Director (MD) and Chief executive officer (CEO) of the IPBC and Mr John Mangos, then Executive Director of PPL engaged an Australian forensic investigation company to look into allegations of corporate impropriety at PPL.

Déjà Vu

I have read this report in detail, with a pervasive feeling of déjà vu: I’ve heard it all before: it was in different times and different places but a very familiar modus operandi.

It evokes the non-existent Wasa Bridge in Kandep, associated with Don Polye and the non-existent community colleges – a fraud for which the Grand Chief, Sir Michael Somare and certain members of his family have been implicated in the Singapore courts.

Coincidentally (or not?), the RE [non] Project also involves the Somares as the project was to be undertaken in the district of Angoram (Arthur Somare’s seat at the time) and involved the East Sepik Provincial Government.

The Angoram RE Project

It is the K15 million paid out to two contractors to which the report dedicates much investigation.

K10 million was from the coffers of East Sepik Administration that had been deposited by Sir Michael Somare into that account (it is not stipulated under what authority and from whence it came but the K10 million was earmarked for the project) and over K5 million that was received by the contractor from the Angoram District Administration for alleged variations to this non-existent project of which the investigators admitted finding no evidence  (and they looked)

The K10 million remained with the Provincial Government until the contracts to carry out the project were awarded and then it was transferred to PPL.

The report highlights the gross abuses of process that allowed vested interests to win the tendering process and commandeer the project without fulfilling the contract.

The tendering process

Implicated in just about everything – is John Tangit CEO of PNG Power whose ‘wantoks’ were the proprietors of the companies that won the four-part Angoram RE Project – three parts to PNG Engineering – the registered owner being Mr Richard Pii, brother-in-law of John Tangit and one part to Sepik Metal the registered owner being Mr Patrick Wolly Tangit, the brother of John Tangit.

john-tangit-ceo-png-power
John Tangit, erstwhile CEO of PNG Power Ltd.

The investigation team found evidence of John Tangit’s direct involvement with the tendering process on his desktop computer.

What’s more, these two companies seemed to have been made aware of the exact amount of money allocated for the project and their estimates coincided exactly (similar to insider trading). The three-parts of the project for which PNG Engineering won the tender were split into K3 million each, notwithstanding the very different parameters of each individual part. In other words the tender was neither accurate nor competent.

Further to the questionable estimates of PNG Engineering, the investigation teams noticed an assessment of 15/15 that had been awarded by the tenders’ assessment team to PNG Engineering for experience, a ridiculous score when the company was only five months old.

As for Sepik Metal, the other successful tenderer, they did not even gain the highest score in the assessment but got the contract because they came in exactly on budget – a little insider knowledge goes a long way.

As such, it could not be confidently asserted that either of these two companies were the best companies for the job regardless of conflicts of interest.

What’s more, on digging deeper into these two companies and their affiliates, many more links of John Tangit’s pecuniary involvement were uncovered.

John Tangit has been much more brazen even than Don Polye was when he awarded the Wasa Bridge contract to a crony – at least he didn’t ostensibly hand the contract to himself.

There’s nothing new here

Of the three issues, Wasa Bridge, Community Colleges and now the Angoram RE Project, there is nothing new.

In Kandep, an estimate K71 million has been allocated to the project and the contractors – and no bridge.

In 17 districts of PNG a whopping K156 million has been allocated and spent – and not one Community College to show for it. (“Leave the Grand Chief alone – he’s the Father of the nation,” you say– where’s that ironic font?)

In comparison, the K31 million gone missing from the Angoram RE Project is a mere bagatelle but a huge amount none the less in any context, but especially in one where many people exist on a couple of kina a day and women still die in childbirth at alarming rates through lack of governmental services (maybe in Angoram it’s from lack of electricity.)

This was brutally brought home to me recently when I heard that there was a drive to vaccinate potential mothers in PNG against tetanus. What on earth for?

In my world, tetanus is not considered a risk factor for birthing mothers. But it is where mothers habitually give birth on the ground in the dust and the dirt or the mud and the filth.

Yet here we are – talking of K31 million as if it were nothing – because everything is relative and the relationship of various acts of thievery is regularly and usually counted in millions in PNG.

To date, no one has found a way or a will to successfully prosecute these crimes. Why not?

Inadequacy of the agencies of the state.

For a journalist, once is an incident, twice is suspect and by the third time, it’s a trend.  And this mode of corruption is quite the trend in PNG. Yet it’s brazen, and not even particularly sophisticated.

What’s more, in two of these cases, there has either been a very competent Singapore court (Community Colleges) that has done the hard investigative work or a thorough investigation by a reputable independent investigator (Angoram RE Project).  As for the Wasa Bridge, if the authorities wanted some evidence of where to look – they could do worse than start with PNG Echo’s own investigation.

Yet it doesn’t happen, does it?  Why not?

If the agencies of the state, and the state itself, cannot recognise this brazen and obvious trend and put in place ways to successfully prevent and prosecute the crimes, then the agencies are either incompetent or corrupt themselves.

I find it hard to believe that in the PNG Power saga ,all Fraud Squad’s energies were put into prosecuting John Mangos for alleged visa infringements and an alleged K62,000 for which there was no viable evidence – Mangos would argue that it doesn’t exist – yet with all the credible evidence available to them – nothing has been done on the missing millions.

I re-iterate – the Fraud Squad is either grossly incompetent or corrupt – there is no third way.

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The PNG Power saga (Part 1)

By PNG Echo

It has been difficult to unravel the many and varied thrusts and counter thrusts of the cases of John Mangos and John Tangit when they were both working at PNG Power Ltd (PPL). So, perhaps it’s best to start with the current state of play and work backwards.

b57ded_30ee39e57f0c419497561345ba026257-jpg_srz_233_350_85_22_0-50_1-20_0
John Mangos

John Mangos was charged twice with various offences, firstly relating to his employment contract with PPL and secondly with the allegedly illegal payment to a third party amounting to K62,000. Neither raft of charges got past a committal hearing where the both were found to be lacking in evidence. They were thrown out. Mangos is no longer with PPL.

tangit-1-1
John Tangit

John Tangit, having been stood down then reinstated, only to be terminated and who is implicated in corruption amounting to millions of dollars (by an independent investigation commissioned by Kumul Holdings and undertaken by a reputable Australian firm of investigators) is now back as at PPL (unconfirmed) having faced no criminal charges whatsoever – scot free – for now.  How can this be?

From this information alone, it is reasonable to assume that the charges against Mangos were specious – and that’s certainly what the courts found when they threw them out.

Matthew Damaru
Matthew Damaru

It was Tangit that was the informant who commenced the second raft of charges against Mangos in a letter at the beginning of March this year, that he copied to various people, including the then appropriate Minister Hon William Duma, Paul Nerau, Chairman Kumul Holdings and Fraud Squad officer, Matthew Damaru – that stalwart supporter and enforcer to Sam Koim and the Task Force Sweep team.

So what would have precipitated this malicious and abortive prosecution?

Why would these Fraud Squad officers, who are lauded as exemplary and expert investigators by many, instigate proceedings against someone with so little and such flimsy evidence?

Sam Koim
Sam Koim

It just could be because the perception of integrity and competency is, in reality…well…just perception. The competency and the motivations of these officers has been seriously impugned by the fact that they, along with Sam Koim’s Task Force Sweep, have lost up to 50% of their cases at committal.  Is this incompetence or something far more sinister – because it is either one or the other, there is no third way.

It seems the malicious litigation against Mangos was all to do with the findings of the abovementioned commissioned investigation that Mangos, as Director of PPL, was about to act on.

You see, the Mangos’ arrest and charges strikes a familiar chord – there is a precedent . It has all the hallmarks of a pre-emptive strike to suppress information becoming public – as surely as the ‘arrest’ of Tiffany Twivey was.

NEXT PART: What Tangit did and how did he get away with it?  The case against John Tangit

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More Fraud Squad cases unravel

By PNG Echo

What do Attorney General, Ano Pala, Aloysius Hamou and Francis Potape have in common?

Hon Francis Potape - the latest case to be overturned through the illegal activities of the Fraud Squad
Hon Francis Potape – the latest case to be overturned through the Fraud Squad’s illegal collection of evidence.

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.

Lawyer Tiffany Twivey - case still to be heard
Lawyer Tiffany Twivey – case still to be heard

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

Messrs Damaru and Gitua of the Fraud Squad.
Messrs Damaru and Gitua of the Fraud Squad.

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.

Enough arrest warrants and they could empty the parliament and remove all the judges that they are finding unco-operative. (Was Sakora’s arrest meant as a warning to the others?)

Attorney General Ano Pala arrest warrant quashed- his actions were incapable of being criminal
Attorney General Ano Pala arrest warrant quashed- his actions were incapable of being criminal

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.

Kerenga Kua, a prominent opposition member
Kerenga Kua, a prominent opposition member

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.

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Who is really defeating the course of justice?

By PNG Echo

Ano+Pala
Attorney General, Ano Pala – arrest warrant quashed.

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.

Paul Paraka, becoming a peripheral comncern in the saga that bears his name.
Paul Paraka, becoming a peripheral comncern in the saga that bears his name.

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.

Mikail overruled

One of the alleged co-conspirators - Geoffrey Vaki
One of the alleged co-conspirators – Geoffrey Vaki

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

Magistrate Cosmas Bidar
Magistrate Cosmas Bidar who signed off on the arrest 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.

Deputy Secretary (Treasury) Mr Aloysius Hamou
Deputy Secretary (Treasury) Mr Aloysius Hamou – exonerated – onlly doing his job

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.

When is someone going to stop these people?

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Damaru’s charges stayed: What irony, what blatant hypocrisy!

By PNG Echo.

Matthew Damaru
Matthew Damaru

Yesterday, Judge Polume heard an urgent application, ex parte (without the opposing parties) to stay the criminal charges recently levelled against Fraud Squad Officer, Matthew Damaru.

Ostensibly, according to her ruling, this was to enable Damaru to continue with his policing duties.

So what was stopping him, in the first place?

According to the press release of the RPNGC immediately following the arrest:

Mr Andrews [Deputy Police Commissioner] said whilst Mr Damaru is criminally charged for the alleged offences, he remains on active duty as Director NFACD and continues to perform his normal Constitutional Duties.

So what was so urgent?  Why was it held ex parte?  Why did the court entertain such an application?  What could the cause of actions possibly be when Damaru was still in position?

This was not an internal issue, this was an official investigated complaint by one of PNGs most senior judges.

Sir Bernard’s Case

To say that Sir Bernard Sakora “got off on a technicality” on the charges for which he was recently arrested, is to downplay the devious manner in which the arrest was effected.

Sir Bernard Sakora and the Chief Justice share a moment.
Sir Bernard Sakora and the Chief Justice share a moment.

In these circumstances, it is up to the Public Prosecutor to decide whether there is enough evidence to arrest someone.  I suggest that Damaru’s motives for not following the correct procedure may just have been because he was afraid the Public Prosecutor would say no. He was operating on the premise that it was easier to obtain forgiveness than permission.

But what he got was neither – and he should be made to answer for this treachery.

Irony and hypocrisy

Just in case you’ve missed the ironic and hypocritical part – Damaru has decided not to ‘submit’ to the court (as he and others of his ilk want the Prime Minister to do) but has decided to try to use the system to stymie the process.

Peter+O'NeillThat’s his legal right – but it’s also the Prime Minister’s.

However if I’d been screaming the line of “step down and submit to the process” as loud as Damaru has, I would now be very embarrassed at my own actions.

No sense, no feeling?

What’s more, people are constantly quoting how no one is above the law – well public perception is that Damaru now is.

On a popular, anti-government Facebook site one commenter wrote:

Today, as we write or speak, there is one man immune to the law and that is Damaru. Nothing will be done to him.

This was said, not in lament, but in triumph. The courts have a lot to answer for.

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Political shenanigans in PNG: Could the Chief Justice be involved?

By PNG Echo.

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?

Paul Paraka, ignored in favour of the Prime Minister.
Paul Paraka, ignored in favour of the Prime Minister.

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,”

Twivey stated.

Lawyer Tiffany Twivey
Lawyer Tiffany Twivey

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.

Judicial decisions

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.

Sam Koim - who is funding him?
Sam Koim – who is funding him?

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.

COP Gary Baki - the courts making his job maintaining discipline tough
COP Gary Baki – the courts making his job maintaining discipline tough

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.

Chief Justice, Sir Salamo Injia - the judiciary's fearsome leader
Chief Justice, Sir Salamo Injia – the judiciary’s fearsome leader

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.

Belden Namah - as he stormed the Supreme Court with his 'storm troopers' to arrest the Chief Justice, mid session
Belden Namah – as he stormed the Supreme Court with his ‘storm troopers’ to arrest the Chief Justice, mid session

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?

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Is the judiciary overstepping its jurisdiction? The Damaru case.

By PNG Echo.

Damaru and Gitua - The Lone ranger and Tonto
Damaru and Gitua – The Lone ranger and Tonto

Did you know that the Court of Law has no jurisdiction to hear an Originating Summons concerning a suspension of a police officer in an administrative matter except as a Judicial Review?

In the case of Damaru’s suspension, and as far as anyone can tell, Greg Egan and other lawyers for Damaru have not filed for a Judicial Review. Indeed they would have had to have sought leave first and that hasn’t come to anyone’s attention.

So, if Egan sought declaratory orders regarding the suspension outside of a judicial review (and it looks as though he did) then the court has no jurisdiction to effect it.

It’s all to do with the separation of powers – it’s fundamental “trite law”, as one commentator put it (a principle (paradigm) of law so notorious and entrenched that it is commonly known and rarely disputed.)

But however fundamental the legal paradigm, it seems to have escaped Justice Allen David when he stayed the suspension imposed administratively By COP Baki of his officer Matthew Damaru.

And that’s not the only legal paradigm that was seriously shifted in this case.  Justice David heard the case ‘ex-parte’ …but I’m getting ahead of myself.  First things first:

Greg Egan playing 'I've got a secret"
Greg Egan playing ‘I’ve got a secret”

The Judge said that he wanted the parties to come to an agreement on the way forward, but lawyers for the State said that they couldn’t do that as QC for Damaru, Greg Egan, refused to share the court documents with them.

Really, one would think that the wise thing to do under these circumstances would have been for the Judge to have ordered that Egan disclose them so that the parties were both well-informed, enabling them to come to that agreement as to the progression of the case – but did he hell? No he didn’t.

He decided to hear the appeal, ex-parte instead.

This means that Justice David chose to hear the application without any arguments from the defence and without their presence. Why? It was totally one sided.

Now ex parte hearings sometimes become necessary when the opposing parties aren’t available, in order to expedite matters, but the parties for the state and for the police service were all there and the ex-parte route is certainly not one preferred by the courts of justice.

This notwithstanding, the Judge chose to go down (unnecessarily) the least judicially desirable path, thus denying the State and the Police natural justice – the whole thing was one-sided and opposing parties didn’t even know what was being argued.

COP Gary Baki - the courts making his job maintaining discipline tough
COP Gary Baki – the courts making his job maintaining discipline tough

One of the stronger arguments against (apart from the fact that the courts have no jurisdiction), is that to interfere with the Police Commissioner is contrary to the Supreme Court reference  – which recognised the authority of Baki (as Police Commissioner) over his men – but who cares, hey?  No one was listening.

It leaves me wondering whether the Judge is aware of the ramifications of his decision? I mean, the right of the Police Commissioner to have full operational command is fundamental to the stability of the police force – but all efforts to bring discipline into line by Baki is being thwarted – and by the PNG courts.  (Montesquieu would be turning in his grave.)

Besides, there is far too much secrecy surrounding all of this; firstly the Fraud Squad operating on high-profile cases covertly and without the knowledge of the Police Commissioner, then there’s the Fraud Squad and Sam Koim from Task Force Sweep receiving funding from an unknown, and likely inappropriate, source and now Greg Egan playing ‘I’ve got a secret’ with the approbation of a National Court judge,  It’s highly irregular and I’m wondering what they’ve got to hide, aren’t you?

Goodness, I know that sometimes the law is an ass, but this time I don’t think the law was necessarily followed, so who is the ass really…and how do you combat questionable judicial decisions and dubious protocol, because I’ve been dedicating far too much ink to it lately?

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No rogue police: Kalinoe wants hierarchy respected

By PNG Echo.

Police officers Damaru and Gitua, halted in their tracks.
Police officers Damaru and Gitua

They say that PNG is the land of the unexpected – but there is nothing unexpected about the latest decisions pertaining to Chief Superintendent Matthew Damaru and Chief Inspector Timothy Gitua of the RPNGC in what pertains to their witch hunt against the O’Neill government.

In the latest developments, Dr Lawrence Kalinoe, acting for the Attorney-General Ano Pala (who has, quite rightly, delegated authority to Kalinoe owing to a conflict of interest in this case) has refused to brief out barrister Greg Egan and Jema lawyers to represent the two policemen in the cases involving the Prime Minister Peter O’Neill, Finance Minister James Marape, Attorney-General Ano Pala, Police Commissioner Gari Baki, and Treasury Secretary Dairi Vele (or any cases, for that matter).

In the expected outcry by the supporters of the two rogue policemen, I have not been disappointed. This too was anticipated.

However, while my expectations and the expectations of the rogue policemen’s supporters tally, (we both expected the request to be denied) they come from a completely different understanding of justice and the rule of law.

Jungle Justice

Attorney General a=says "no" to a re-engagement of this legal representation
Attorney General says “no” to a re-engagement of this legal representation

The supporters of Damaru and Gitua want jungle justice, PNG style. They believe that the ‘bikmen’ that Damaru and Gitua have targeted are guilty and they want their heads on a plate regardless of how many principles suffer or how much anarchy and its ensuing consequences their need for retribution may trigger.

It is their argument that the government, by denying this request, is merely protecting itself and its implicated members. They claim it’s unfair.

On the surface, it may seem that way but only because these police personnel have been allowed to get away with insubordination for so long – so much so, that it has become normalised and expected that they should get away with more.

Anything is ok,with their followers as long as they deliver the bllood for which these people have been baying.

Who gave Damaru and Gitua the idea that they could act independently: that they had authority to brief these lawyers in the first place? Under whose authority were they acting?  Sam Koim’s?  He has no authority and is unlikely ever to get any again.

As one commentator on PNG Echo wrote:

These proceedings [various proceedings surrounding Koim] are a waste of time and money because Koim’s Task Force Sweep has no legitimate source of funding and since we should have a politically independent ICAC soon which should make Koim irrelevant although I am sure even that will not deflate his ego.

And when Damaru said, in the press, of the Acting Attorney-General’s refusal to grant his choice of lawyers

This is a major setback to all cases (in court) and investigations (into PM and others) currently underway… Taking on new representation will further delay us,

he really has only himself to blame. He should have thought about that before he decided to be a maverick. All actions have consequences, and that this gung-ho police officer failed to foresee them could be a direct result of his unbridled zealotry.

It is directly akin to all of the contempt of court charges that are now extant and threatening to hold up cases while they’re decided.  The people who have allegedly committed the contempt are busy crying foul but again, they have only themselves to blame : if you don’t want contempt charges to muddy the water, stop committing contempt – it’s not rocket science, especially if you are trained in the law.

Brought back into line

Kalinoe-on-Sanctioning-Prostitution-media
Dr Lawrence Kaliinoe, Acting Attorney-General

The RPNGC is a disciplinary force that is hierarchical in structure. There is a definite chain of command, without which the members become vigilantes – answerable to no one. As reported in his letter to Damaru, Dr Kalinoe has reminded the police officer of this when he tells him

…the request should have come from the Police Commissioner as the head of the organisation

Damaru was advised by the Attorney-General’s Department that he and his officers were able to be represented by lawyers from the Public Solicitor’s Office – which is what the office is there for.

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Supreme Court says “yes” to Prime Minister

By PNG Echo

Justice Bernard Sakora
Justice Bernard Sakora

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.

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