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
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.
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?
The accosting and arrest of lawyer, Tiffany Twivey, at Jacksons Airport, yesterday, is a considerable blight on every law enforcement officer in Papua New Guinea by association with senior but rogue police officers, Damaru and Gitua and the Machiavellian, Sam Koim.
When around 10 plain-clothes police started shouting aggressively at Twivey after she’d exited the arrivals hall of Jacksons Airport, she had no idea why they were shouting for her to get into their car.
Twivey’s 85-year-old mother, frail and fragile, was travelling with her and she was confused, upset and frightened as she watched her daughter being manhandled into the car. But the police were determined not to let an old lady’s distress distract them from their zeal and would not let Twivey go back to speak with her mother.
…they were shouting, “get into the car – get into the car” aggressively
It was only good fortune that Twivey’s driver was there to rescue her frail, confused and frightened mother – for Christian decency was not the order of the day with the police officers.
Twivey is a lawyer, she knows her rights and when she asked why the police wanted her to come with them, as she was not under arrest – the police officer replied that she was although ABC Australia was informed that she wasn’t.
…they were grabbing my arms and trying to shove me into the car – and I have bruises,
So what were Twivey’s sins that she was arrested and manhandled in this ignominious fashion?
It’s simple, her client is the Prime Minister and he has been targeted by anti-government forces led by police officers Damaru and Gitua, spearheaded by the former head of Task Force Sweep. – the anti-corruption fighter that has some of his own explaining to do, Sam Koim.
And explaining he would have been:
I was to cross examine Sam Koim and examine McRonald Nale on the source of the private funding of the policemen and Sam Koim for the past two years,
wrote Ms Twivey in a statement.
She says that the timing is not lost on her, for instead of appearing in the National Court on behalf of the Prime Minister – with Koim uncomfortably on the stand under her cross examination, today she will be required to appear in the District Court defending herself.
Koim should be breathing a sigh of relief, it would take considerable arrogance to deliberately lie on the stand, wouldn’t it? Within the next few hours we would have known who has been behind all of these vexatious arrests – who’d been bankrolling the zealotry. Serendipity or a deliberate ploy?
For as Twivey asked:
Why couldn’t they come to my office? I’ve been in the same office for 5 years/ same apartment?
Ms Twivey was also at pains to point out that when Justice Kirriwom referred her and lawyer Sam Bonner to the Law Society, he did so on an incorrect premise of which Damaru and Gitua were well aware. It seems that this was what the arrest was all about.
These policemen did not object or make any submissions against my appeal In the Supreme Court against referral to the Law Society as they knew Kirriwom J had got the facts wrong, and yet they now initiate a criminal process,
she asks, incredulously?
Which brings me to Justice Bernard Sakora, why was he, at this very point in time, being arrested for something that allegedly occurred in 2009 and which the likes of Task Force Sweep, under the guidance of Sam Koim, had known about for 6 years? What took them so long?
Well there IS that timing thing again that Ms Twivey remarked upon…and it’s no surprise that driving the arrest were police officers Damaru and Gitua.
How many such cases has Task Force Sweep been keeping to themselves and for how many years…and why? To what avail?
Sakora is alleged to have taken a bribe from lawyer under investigation, Paul Paraka. Although the alleged bribe has been explained by Justice Sakora as the sale of a car, the explanation is not good enough for Damaru who alleges that Sakora should have declared the transaction when he presided over cases they were involved in.
However, as in Twivey’s case, he did not raise any objection in court, which would have been the appropriate time.
One commentator believes that this could be a thinly-veiled attempt to get Sakora off the bench – just as the motive for the Prime Minister’s arrest seems to be to get him to step down. Sakora has found for the Prime Minister lately, which is likely, his sin.
Someone suggested to me that this could be viewed as an ominous ‘warning’ to others not to cross them (Damaru, Koim Gitua) – be they lawyers, politicians or judges.
I wonder how much ‘dirt’ the files of Task Force Sweep contain, on whom and when these will see the light of day? It’s all in the timing, I guess.
What do you call a nation/state controlled by corrupt zealots and rogues who are answerable to no one and whose tools include vexatious arrest and blackmail? Just asking.
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.
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
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.
I’ve been incommunicado on the other side of the world for some weeks, so yesterday (24 October 2014) with good internet connections temporarily restored, I was shocked to learn that tensions and conflict within the police service in PNG seems to have escalated.
Why should that be so when the Supreme Court on October 2 clarified the constitutional position confirming that the Commissioner of Police has ultimate authority and control of his men – and that the duty of a police officer was to obey the orders of superiors?
Well, seems some ‘rogue’ police officers have chosen to disregard the ruling of PNG’s highest court.
A dissident faction, led by Chief Inspector Damaru and Inspector Gitua, seem to have forgotten they are first and foremost police officers and have become righteous zealots, hell bent on carrying out an arrest warrant on the Prime Minister, notwithstanding that the courts have stayed the warrant and regardless of the fact that their superior officer, Commissioner Vaki is currently seeking a judicial review of that same warrant.
My response as posted in the ‘comments’ section of the Prime Minister’s PNC facebook page.
By Susan Merrell
Mr. Prime Minister, I guess that would be me you’re referring to. Feel free to call me by name.
With all due respect, are you even aware of what constitutes a failed state? I agree, PNG is not one at present, but if you do not pull your disciplinary forces into line there is definitely the potential there. If you are of the belief that a police force that gang rapes women and then beats up women who dare to complain about the crime is not anarchy, then we have a differing understanding of the word. Anarchy already reigns in pockets of PNG.
You have coveted the portfolio of Minister of Police, so I guess the buck stops with you – and even if it went beyond you, the buck would stop at you again as PM.
Mr Prime Minister, maybe it is you who should travel (without the diplomatic entourages) and witness how others around the world live – then hang your head in shame – I would were I you.