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
Don Polye, the Engan warlord, whose election result has been set aside on more than one occasion for suspected and proven tampering (including the most recent one), who is implicated in many corruption scandals including (but not only) the unresolved Paraka case, who has been rejected and sidelined by every government he’s served under, not least of all for incompetence, has been named as the alternative Prime Minister.
Is this the best the Opposition can do?
I’ve maintained (and am unlikely to resile from the position) that the Opposition is not a fit outfit to run a country. They are a motley crew of the disaffected, disgruntled and rejected – all with knives sharpened to do each other in at the earliest opportunity.
I think they’ve already done Ben Micah in.
According to a government press release, Micah, when denied what Minister Marape has labelled “unreasonable demands” to whit: to be given the Deputy Prime Minister’s Portfolio (the good Minister considering Micah ” …does not have the stature, experience and respect required to be Deputy Prime Minister.”) he gathered up all his toys, like a spoilt child, and left – disgruntled, disaffected and rejected.
Only he left a few behind, like the Chans – the most useful toys in his stash.
How would he perform as DPM when he can’t even maintain the following of a small political party? I do, though, wonder how Micah found himself in oppositional no man’s land – no nomination as alternative Prime Minister – not even Deputy (they’ve got Basil, who’s made that role his own.)
The only reasonable explanation is that he did more than just sulked away – likely left with a whip behind him. Ah, you never know how humble you can be – until being humble is all the choice you have.
(Apologies to the unknown sage whose words of wisdom I’ve bastardized)
Mind you, the Opposition are so few that, at this stage, promising Ministerial portfolios would not be a problem.
However, once they’re all gone – what do they have left that’s in the least attractive for the other MPs and for the country? Not a lot.
Yet we are being regaled, in the social media, with all the likely defections – to the Opposition – when in fact the faction that is the most wobbly is the Opposition.
Micah, for instance, he’s got nothing for his defection (and he’s not known for doing things out of the goodness of his heart) and what’s more they quite likely tricked him out of the leadership or deputy role and he wouldn’t be pleased about that. I’d say Micah is for sale to the highest bidder – except no one seems to be bidding.
And then, there’s Namah… who has been ‘making eyes’ at O’Neill for some time now. But the famous cuckold has been, so far, unsuccessful. However, O’Neill would only have to wink at him and he’d come running. He’s no stable member of this wraggle-taggle mob – a bit of a floozy really.
Wasn’t it humiliating to see Speaker, Theo Zurenuoc go to water when Kua reminded him, ominously, that he could be charged with contempt of court – a veiled threat, I thought. You could have carried the Speaker around in a bucket. I’m wondering what motivates this feisty little gnome-like creature other than enriching the Somares.
Then, lurking in the background, not really with them, not really against them, is the Governor of Oro, Gary Juffa.
Here’s your solution.
I’m now going to suspend all disbelief in order to give you all what you say you want: that is the Opposition, the social media and the silent majority.
It is the Opposition’s position that this VONC was necessary because Peter O’Neill is ruining the country and needs to be removed to save PNG. Their motivation is to save PNG from corruption and bad fiscal management.
Pay attention to this, because it’s vital.
How can that be the case when they’ve nominated someone like Don Polye to be alternative Prime Minister – just more of the same things they accuse O’Neill of and worse?
I have also demonstrated, here and at other times, that the main contenders for alternative Prime Minister in the Opposition are all tainted by the broad brush of corruption.
The Opposition would tell you that they were acting on behalf of the ‘silent majority’; that they’ve heard their plaintive cries (although I don’t know how when they’re silent) and are responding – a voice for the voiceless.
Equally, there is a certain demographic that uses the social media who claim to also be speaking for the ‘silent majority’. (The students’ did too – but let’s leave them out – this social grouping seems to be becoming over-represented).
We can therefore conclude that the Opposition and the social media, anti-government forces are speaking for this same voiceless demographic.
With me? Excellent.
If we scrutinize the rhetoric of this social media grouping and take heed of the many surveys they have carried out, the consensus is that this silent majority, want Gary Juffa as alternative Prime Minister. Unequivocally! (Oh and Basil as the Deputy – who else?)
Juffa, though, hasn’t got the numbers and the Governor understands this only too well – yes, but only because these supposed representatives of the ‘silent majority’ have given their vote to Polye when their supporters want Juffa.
Oh come on Don, why don’t you listen to the plaintive cries of your constituents? It’s easy stuff, step down, instruct the Opposition (which you claim to lead) to back Juffa.
This will reveal, if your aim is really as stated or whether this VONC is a cynical exercise to raid the state’s coffers. As for the social media and the anti-government forces, I’ve given you a tangible way to get what you want – go lobby – but be prepared to run when the sheepskins are shrugged off to reveal the hungry wolves.
proclaimed the headline of Australian ’boutique’ publication The Saturday Paper, (its author, Mike Seccombe)
This is opinion and, in my opinion, it is tainted opinion.
It’s a melange of the same old sources, saying the same old thing, displaying a nostalgic longing for a time passed when Papua New Guinea was ‘get rich and get out’ country unimpeded by governments who were far more malleable than this one.
Take the headline – incorrect: the very first indication of a failed state is when the government loses control of its disciplinary forces. That hasn’t happened – nor will it. O’Neill is still the Supreme Commander of the PNG armed forces and O’Neill appointee, Chief of Police, Gary Baki, is doing a sterling job of maintaining discipline even with a few court-backed rogue police as thorns in his side.
Ironically, the article was brought to my attention on the Facebook page of Gary Juffa, Governor of Oro and the politician who is spearheading a campaign to #takebackpng# – it was republished with just a small comment by the Honourable Governor “It has come to this..” It was ‘shared’ by dozens of his Facebook friends.
I don’t know what the Governor means: It’s come to what?
But certainly if PNG is going to be taken back then perhaps overseas reports, such as this, should be exposed for what they are: highly inflammatory, bordering on libellous, focused on Australian interests and quite often wrong.
The author and his ‘sources’
Last November, in The Australian ‘Media Watch Dog‘, Gerard Henderson named Mike Seccombe “Media fool of the week” for his front-page article on Cardinal Pell.
Henderson points out that “…”Smirk” Seccombe’s sources – for want of a better word,” are hardly impeccable and are most often nameless, such as “Cardinal Pell’s “most trenchant critics,” and “Pell’s anonymous critics” and even “some influential figures in the church” – and while Seccombe in his article about Papua New Guinea does name some of his sources, he fails to point out the ‘elephants in the room.’
However Papua New Guinean lawyer, Ms Tiffany Twivey who counts amongst her clients the Prime Minister and who was recently arrested by the aforementioned rogue police operating outside of the purview of Chief of Police in very controversial circumstances, has no such qualms writing:
That terrible article [Seccombe’s on PNG] – quotes Paul Flanagan, an Australian – who is failed former PNG treasury employee who has been writing “the sky is falling” economic forecasts for PNG since he was sacked. Then there are the team from development policy at ANU – where people go if they can’t get a job actually in development.
She goes on:
As for Lawrence Stephens – well he was working for PNGSDP when the government took over OK Tedi – lost his job. Former catholic Secretary General for PNG who has made a career out of pointing out problems in PNG but never actually helps to solve them.
For my part, my particular fascination is with Seccombe’s source that couldn’t be named “for good reason” – but we’re told he is a former senior Australian government official – and as such I can’t imagine why he needs to hide his identity – only people with something to lose need to do that – and maybe that’s the nail hit squarely on the head, especially when we read later:
You have to be careful about putting your name to criticism these days if you ever hope to get back into PNG. Hence the reluctance of our old hand, quoted above.
Now I understand. Is this “old hand” hoping to get a lucrative government job in PNG to cushion his retirement? The government’s policy of dispensing with overseas ‘consultants’ would not have suited many with such plans and they’d be understandably bitter.
Seccombe, even in quoting Dr Ron May (emeritus fellow to the State, Society and Governance in Melanesia Program at ANU), only gives some basic widely known and understood context – handy for an ignorant Australian audience but unnecessary for a Papua New Guinean one.
And that’s the crux: Australian’s are Seccombe’s audience. It’s written from their point of view and with their best interests in mind and with Australians giving their ‘expert’ opinions on Papua New Guinea to other Australians.
So why is a PNG audience on the social media, who describe themselves as ‘elite’, taking so much notice?
Every Australian article that I read about Papua New Guinea recycles the same old ‘experts’ who carry the same old trite views. Invariably they are Australians who have had lucrative careers as ‘consultants’ to Papua New Guinea and are clearly missing the ‘good old days’ where Papua New Guinea was more easily exploited and are alarmed at the rapidly changing landscape.
It’s becoming a habit.
It was just in January, this year that I wrote about the article by Bill Standish (also associated with the Development Policy Centre – about which Ms Twivey is so scathing) making the same observations about its useful contribution to Papua New Guinea (as opposed to Australian interests)
Standish makes many of the same assumptions that Seccombe does, especially about Task Force Sweep.
While Standish talks of “several” convictions of the agency, Seccombe talks of their “40 high-profile arrests.” Nowhere in either article could be found the figures that illustrate the abysmal failure of the agency:
In the figures that Sam Koim (ITFS Chainman) provided the PNG public recently he claimed to have registered 350 cases – 93 that were ITFS initiated of which 12 were successful.
Those figures neither take into consideration that the conviction of MP Francis Potape (one of the only two major convictions of ITFS – the other being MP Paul Tiensten – twice) was successfully overturned on appeal nor that some have mooted that this may be the fate of other convictions.
For now, it stands at 11 out of 93, or 11.83% success rate! Based on the cases registered (350), the success rate comes out at 3.1%. Indeed, a full 50% of ITFS cases have not made it past committal. (My emphasis)
To support their shaky thesis they have also needed to overlook the fact that Koim is embroiled in his own allegations with a charge of Contempt of Court dogging him along with the question of who is funding him. When this question can be answered then Koim may be further discredited. Another elephant in the room ignored.
Lying can be as successfully achieved by omission as by commission.
Just for good measure, the anonymous “old hand” and Professor Stephen Howes (yes, another source from that Development Policy Centre) – are in agreement that the court system in PNG is probably the last bastion of democracy and the only PNG government institution that can be trusted to function effectively.
This notwithstanding, Howes does mention a couple of appointees (though not by name) who seem to have been corrupted but is eager to point out that it isn’t the ‘white’ judge, Justice Terry Higgins, who was a former chief justice of the Supreme Court of the ACT. No it wouldn’t be the Australian, would it?
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.
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
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.
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.
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.
I am often asked what attracted me to the politics of Papua New Guinea. I can only reply by evoking the country of my birth – Wales.
Although I left Wales as a teenager, Wales has never left me – I see in Papua New Guinea many reflections of Wales – especially in the struggle for identity.
Today I was reminded of poet, Gerallt Lloyd Owen: a fiercely patriotic Welshman who, in 1972, published an antholology of poems entitled: ‘Cerddi’r Cywilydd’ which, translated from our language (Welsh), means ‘The Poems of Shame’.
The poems were written in response to Wales having invested the English Prince Charles as Prince of Wales – a very unpopular event with those of a nationalist bent – although celebrated by many – to the nationalistic horror of Lloyd Owen.
Most striking in this anthology is the poem ‘Fy Ngwald’ (My Country). In it he invokes the name of Llewelyn – the last (indigenous) Prince of Wales who was killed by the English in 1282.
It is a bitter lament on national subservience and the colonial mindset. Here is the first and most well-know verse.
Wylit, wylit, Lywelyn,
Wylit waed pe gwelit hyn.
Ein calon gan estron ŵr,
Ein coron gan goncwerwr,
A gwerin o ffafrgarwyr
Llariaidd eu gwên lle’r oedd gwŷr.
You’d cry, you’d cry Llywelyn,
You’d cry blood if you could see this,
Our hearts with a foreigner,
Our crown with a conqueror,
And our people are just a privileged lover
With meek smiles, where once there were men.
Do they resonate in Papua New Guinea? Could the name of our great Prince Llywelyn be substituted by a great warrior/leader of Papua New Guinea and these words become eerily apt?
It is because of my strong nationalist leaning that I support the leadership initiatives of Prime Minister, Peter O’Neill, when he takes back what is rightfully PNGs – like OkTedi.
It is because I believe that the identity of smaller nations should not be subjugated to a more powerful neighbor that I applauded when your Foreign Minister, Rimbink Pato, restricted the access to Bougainville for Australians when Australia decided it could ignore PNG national sovereignty and bypass diplomatic channels.
It is also why I support the initiative of Gary Juffa (if not necessarily the modus operandi) #takingbackPNG.
But ‘no’ to racisim
Mty brand of nationalism, however, does not support xenophobia – indeed the Welsh tradition embraces all comers – especially the downtrodden. And I am nothing if not a product of proud Welsh traditions.
Welsh coal miners, from which I’m directly descended, defied the British government and, using their own resources, travelled to Spain to fight against the fascism of General Franco in the Spanish Civil War.
Wales supported and harboured black dissidents banished from America because of their civil rights activism against black oppression – such as the singer Paul Robeson.
Robeson stated that It was in the valleys of south Wales (from whence I hail) that he first understood the struggles of white and negro together – after he had been down a coal mine in the Rhondda Valley (the next valley to where I was born) and lived amongst us.
My activities in Papua New Guinea are just a continuation of a proud political tradition transferred to closer, different (but often so similar) arena.
Prime Minister, Peter O’Neill has hit back at the continued and sustained attack on the government by former Prime Minister Mekere Morauta, saying his…
…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…
He went on to say:
[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 Prime Minister, admonished the former Prime Minister, now retired politician, for playing politics from outside the parliament He said Sir Mekere was
… a failed Prime Minister who initiated Papua New Guinea’s lost decade
(Sir Mekere’s Prime Ministership from 1999 – 2002 was followed by that of Sir Michael Somare lasting until the political coup of 2011 and is no doubt the “lost decade” of which O’Neill is referring.)
An unholy alliance
In spite of the recent alliance between Morauta and Somare, where they teamed up to criticize the government’s UBS deal, the fact is, Sir Mekere Morauta, has never been an admirer of the politics of Sir Michael and stood in opposition to him for most of that decade.
More recently (2011) he made a scathing attack on Sir Michael’s government and especially the performance of Sir Michael’s son, Arthur Somare on inheriting the IPBC from him. He said:
As Minister, Arthur Somare regarded the SOEs [state–owned enterprises] as toys to be owned to glorify his image,… It seems that the IPBC and its SOEs were seen as the Somare family “honey pot”
Morauta was scathing about the abortive deal done by Arthur Somare that, arguably, was the precedent that made the UBS deal necessary and he questioned “the motives of the borrowers.”
It is therefore a considerable irony that these two have become allies against the government – with the Grand Chief even willing to play second fiddle to Don Polye (the Leader of the Opposition ) – a man he never trusted to deputize for him while he was Prime Minister.
Given that Polye has had an alleged hand in so many corrupt deals, that these two strange bedfellows (Somare and Morauta) would happily fall in behind him while claiming to still have altruism as their only motivation, would need a complete suspension of all disbelief.
It all smacks of self preservation and the protection of vested interests.
These government’s accusers do not have clean hands and neither do they have a right to lifetime stewardship and control of governmental assets (however controversial or fiercely fought for) and/or the right to expect that the Prime Minister position should be a sinecure or something that can be gifted to their children.
All of this belongs to the people of Papua New Guinea.
…democracy, […] denotes a system of government, not an actual state of equality. It means that we enjoy equal rights versus the government, and in relation to each other. Having equal rights does not mean having equal talents, equal abilities, or equal knowledge. It assuredly does not mean that “everyone’s opinion about anything is as good as anyone else’s.” And yet, this is now enshrined as the credo of a fair number of people despite being obvious nonsense.