Today, Sam Koim, of Task Force Sweep, made an application to the Supreme Court to discontinue his appeal. The appeal was against the decision of Justice Colin Makail in the National Court that dismissed the judicial review of the disbanding of Task Force Sweep.
In finally accepting judicial defeat, and after three long years of court battles, Koim, nevertheless still sought to maintain control by asking the courts to direct the government and its agencies, by order, to surrender all Task Force Sweep’s files to line agencies and the Fraud Squad.
While the discontinuation was granted, the order to surrender the files, according to Koim’s direction, was refused.
This effectively puts control of the of the country’s disciplinary forces back where they belong – with the duly elected government of the day.
Therefore, the NEC’s 2014 decision to set up an interim office of ICAC under the direction of retired judge Graham Ellis now stands. I expect that the new office will take custody of those files forthwith and PNG will be welcoming the Judge back to its shores.
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.
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?)
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.
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.
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
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.
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.
Papua New Guinea’s political opposition has just two weeks to oust the Prime Minister if they want to get their hands on the government cheque book before the next election – and they do – desperately.
They’re pulling out all the stops.
As I write, there should be a decision being handed down by the Supreme Court as to the recalling of parliament to allow a motion of ‘No Confidence’ to go ahead. With the three judges sitting on the case being Mikail J, Salika DCJ and Injia CJ, I don’t like the chances of the government winning this.
The opposition are likely to get their chance at a Vote of No Confidence – whether they win it, is another matter entirely.
But they’re in there trying!
Bring out the big guns
They’ve got former Prime Ministers Sir Mekere Morauta and Sir Michael Somare joining forces in the attempt to depose the Prime Minister and asking other MPs to join them in a press statement that is the most hypocritical and self- serving document imaginable.
These men live in a very fragile metaphoric ‘glass houses’, yet they insist on throwing stones.
The two masters of the ironic (Morauta and Somare) are saying:
As former Prime Ministers we have made our choice, and we ask our fellow Papua New Guineans to join us in rescuing our country. We cannot, through inaction, see our democracy and the institutions that support democracy ruined. The nation’s future is at stake. Today we are declaring that the Prime Minister must stand down, for the good of all Papua New Guineans.”
For the good of all Papua New Guineans? When did these two have the good of Papua New Guinea foremost on their agenda?
Sir Michael was the architect and founding father of what Wikileaks called “a dysfunctional blob” and when Wikileaks made a comment on the possibility of Sir Michael coming back into power after the 2011 political coup, they referred to the Somare regime as
…a cesspit of corruption, incompetence and mediocrity.
Then again, Sir Mekere Morauta presided over what the Prime Minister has described as “the lost decade” with opportunities and good times squandered.
They are proposing a rescue plan that, on scrutiny, is actually a plan to make a plan. – they provide no solutions but plenty of criticism – all wreaking of gross hypocrisy.
The past five years of Mr O’Neill’s leadership have been characterized by mismanagement, waste and corruption on an unprecedented scale.
As Minister, Arthur Somare regarded the SOEs [state–owned enterprises] as toys to be owned to glorify his image.
He said that the Somare family regarded these SOEs as their “honey pot”
It’s an interesting criticism when you consider the similar one the Prime Minister made of Sir Mekere when he recently said that that the
“…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…[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].”
As for corruption, well the ‘Father of the Nation’ is still allegedly at it (see here) and it would be more important to him than ever, now that he’s announced his retirement, that he install a government that would be sympathetic to his, and his family’s, ongoing needs.
No, neither of these two has earned the right to access the public coffers -especially not prior to an election that would recognise either of them as the mandated incumbent – and that’s unlikely to happen ever again making them no different to thieves, taking what doesn’t belong to them.
The question has to be asked why the opposition so desperately need access to the state’s coffers, doesn’t it? What plans do they have for money belonging to the people?
These two weeks are so crucial to the Opposition because if they depose O’Neill after this small window of opportunity, then it will trigger an election – and they will have to go to that election without the benefit of the public purse.
Make no mistake, these next two weeks are nothing to do with the good of the nation and everything to do with the financial ambitions of the Opposition who’d like the trough for their snouts.
They’ll be quiet come the end of July – mark my words. The good of the nation will be forgotten.
That the leave sort by lawyers for the Prime Minister to apply the ‘Slip Rule’ to the recent Supreme Court ruling (lifting the injunction on arrests and harassment of the Prime Minister and his associates) was not granted today, is not surprising.
I don’t believe there is any case which has actually been granted leave to make a Slip Rule Application since the rules were changed in 2012 requiring that leave be granted.
What’s more, in this particular case the Justices who handed down the decision to lift the stay (Hartshorn, Makail, Sawong) are the ones that heard the leave application and would be naturally hostile to an application that suggests they erred.
A more satisfactory outcome would have been to have heard it argued before Judges with no pre-conceived ideas about the matters at hand – which, I concede, is becoming increasingly difficult in Papua New Guinea at the moment.
Interestingly, although the Justices stated that they would give an ex tempore decision, what they ended up doing was reading from a lengthy and widely-researched judgment that quoted extensive case law – including cases from Australia.
Nevertheless one of the PNG cases that counsel for the Prime Minister put forward in her submissions, MRA & Ramu Nico v Koroma (2015), the Justices resolutely refused to follow.
A decision that was 5 years in the making was discounted by this bench of the Supreme Court in less than an hour. Indecent haste?
Patently, this case had been decided even before counsel made its submission in court this morning. There is little likelihood that this judgment could have been researched and written in the lunch break. It had been pre-judged (the verb from where we get the noun prejudice).
In practical terms, it means that their previous decision is upheld and the PM, his legal team and other people covered by the order can be arrested.
That doesn’t mean they should be.
For the police to be running around willy-nilly arresting people just because they can, is madness. Only in Papua New Guinea!
Citizens and others residing in Papua new Guinea need to feel secure that the law protects them, not declares open season on them – as has been suggested by many unrestrained commentators.
I believe that the stay order on the arrest of the Prime Minister on the Paraka matter is still extant – the court has not lifted this.
Firstly, let me go on record as saying that I couldn’t be happier that the abomination that is the Manus Island Detention Centre will soon cease to exist.
It has gone way beyond my ken to think that one government could conceive of such a place and another government go along with it and I said so, many years ago.
But forgetting about the asylum seekers (which they did) this treaty allowed political jockeying to strip both governments of all vestiges of humanity, to put political self-interest before the rights of the most unfortunate men, women and children.
Thank goodness at least one player, Papua New Guinea, has come to its senses, at last. But with the stone already thrown in the pond the ripples are bound to continue.
The reasons this treaty was signed were at best cynical:
At the time, the then Australia Prime Minister Kevin Rudd was in his death throes and thought this punitive, but popular policy in Australia, would pull him out of the doldrums – it didn’t – and it suited subsequent Australian governments to leave it in place. No asylum seekers on the shores of Australia means one chronic political headache (regardless of the reaction to asylum seekers in Australia being out of all proportion to the scale of the problem) was solved. Now gimme them votes.
As for Papua New Guinea, I’m supposing that, in return, a substantial monetary consideration (aid) was negotiated (although, I have read the latest Memorandum of Understanding (MOU) between Australia and PNG – and the exact quid pro quo is not articulated). But more than this, knowing what a political hot potato ‘boat people’ are in Australia, for the PNG government to have done Australia such a huge favour gave PNG considerable political leverage with the most powerful nation in the Pacific.
It suited Prime Minister O’Neill, who has been trying to maintain PNGs sovereignty against intrusions by it’s nearest neighbour and former colonizer, with OkTedi springing immediately to mind.
So, with Manus in his arsenal of negotiating tools the pendulum would have seemed to always be in PNGs orbit. – just how the Prime Minister wanted it.
But, regardless of the reasons, it was, nevertheless, a signed treaty between two sovereign nations – a pact, however Faustian
Now, one party wants to resile – to break the agreement. There are bound to be consequences.
It’s all very well for the Australian Immigration Minister, Peter Dutton, to state that the court decision in Papua New Guinea is not binding on Australia, because while he may be right, it’s binding on Papua New Guinea, and when Papua New Guinea sneezes, Australia will catch the same cold.
And Australia is going to be kicked out, just like they were when the Supreme Court ruled the Enhanced Cooperation Program unconstitutional under the Somare government.
For Australia, the situation must not only be inconvenient but just a little irksome in that the MOU between the two countries states that
The participants may jointly decide to vary this MOU in writing.
About this decision there is no “jointly’ – only a unilateral decision by PNG.
It is an internal problem that has become a headache for an international partner – and an important partner at that..
As in so many cases recently in PNG, the problem involves the Executive at odds with the Judiciary.
It’s really not good enough for the PNG government to say that there’s little they can do because the Supreme Court has spoken – all of these little glitches should have been ironed out before the treaty was signed.
For PNG to come to the conclusion that the treaty is unconstitutional, almost 4 years after the signing of the initial agreement is criminal. Someone should have been dotting the i’s and crossing the t’s before the fact not engaging in crisis management like this.
I can’t imagine that this incident won’t damage the reputation of PNG internationally. I’m sure that PNG will be eyed with some suspicion and approached with some caution when it comes to any bilateral, multilateral or any other international treaties for some time to come.
I know, were it me negotiating, I’d want to know who was running the country and I’d certainly ask for Judicial assurance before I’d do business with PNGs executive – the incident has affected the credibility of the executive government.
By all means fight the internal battles – but for international purposes PNG should have a united front
…but you promised
What’s more, there are many people in Papua New Guinea who had pinned their hopes on the continued operation of the detention centre, especially Manusians – and they’re not going to be happy either.
Already Hon Ronny Knight, Member for Manus is panicking. He told the press:
If it has to be closed down it has to be closed down, but we still need our roads fixed. It’s not our fault this happened – we’ve been promised certain things still yet to be fulfilled.
Mr Knight has tried to distance himself and his constituents from Papua New Guinea – and he can’t.
Papua New Guinea has reneged on the contract (and by association Mr Knight and his constituents). It will not be fulfilling its part of the bargain – how can he then expect Australia to fulfil theirs? PNG is at fault as far as the breaking of a pact is concerned, how do they expect that they will emerge unscathed?
In history, wars have been fought over broken treaties, national sanctions have been imposed – I doubt that Australia is considering anything like this and may even decide to bow out gracefully, but now, Papua New Guinea has lost its biggest bargaining chip. So many bets will be off – the landscape will change.
You’ve heard the saying “marry in haste: repent at leisure,” well I think this applies to this situation too – PNG (and Australia too) signed in haste and they’ll now be forced to repent in their own good time.
ADDENDUM: I have read the Supreme Court judgment, where all five judges (Salika, Sakora, Higgins, Kandakasi and Sawong) are in accord.
In this judgment the main protagonists weren’t forgotten nor ignored (at last). Indeed, Justice Higgins came back to a quote, more than once, that asked if what was happening was
reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind?
I think he’s got it – what a shame he’s four years late.
A unanimous decision by a three-man bench of the Supreme Court (Gavara-Nanu, Sawong and Higgins) upheld the appeal by Jimmy Maladina against his two convictions: conspiring to defraud and misappropriation in the National Provident Fund matter (NPF) that reaches back almost two decades.
it’s taken a while to established that Jimmy Maladina is innocent – but he always has been.
Maladina’s conviction was based on conjecture and misdirection and was a clear case where justice was miscarried according to reviewing Judge Gavara-Nanu.
It is all about more of that ‘trite law’ that I wrote about in my previous article on the judicial decision that quashed Damaru’s suspension.
This time, the law that convicting judge, Deputy Chief Justice (DCJ) Gibbs Salika failed to understand (according to his fellow judges) thus allowing him to bring down a guilty finding in the Maladina case, was the fundamental paradigm that western law is built on – the presumption of innocence and the onus of the prosecution to prove guilt beyond a reasonable doubt.
Justice Gavara-Nanu said in his judgment:
The view taken by the trial judge was of course contrary to the law relating to the burden of proof in criminal trials viz; proof beyond a reasonable doubt. The prosecution always carries the burden to prove every element of the offence charges.
Earlier in the document he stated:
…the trial judge had effectively shifted the burden of proof to the appellant to prove his innocence. This is evident from the trial judge’s statement that it was “incumbent” on the appellant to give evidence and explain the issues raised by the prosecution…
This burden [of proof] never shifts to the accused,
Justice Gavara-Nanu said.
But the DCJ had tried to do just that, maybe because there was precious little of prosecution evidence – and the little that there was available was circumstantial and able to be imagined in more ways than the prosecution had presented or backed up with evidence.
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.
Minister James Marape has today (Tuesday 9 April 2016) had his appeal dismissed unanimously by a three-man bench of the Supreme Court (Justices Hartshorn, Makail and Sawong).
The news was broken on social media and anti-government forces are hailing this latest Supreme Court decision as a David-and-Goliath type victory for the renegade police officers (Damaru and Gitua) with the Prime Minister and Minister for Finance said to have been “trashed” (sic) by the Supreme Court (even with their expensive QCs),.
But the truth of the matter is that the decision is on a procedural matter and is generally insignificant except for one major consequence.
The most far-reaching consequence of the dismissed appeal is that it also served to lift the blanket stay of any arrest warrant (on any matter) for Minister Marape, the Prime Minister and their lawyers etc.
However, the Prime Minister, in a press statement released today, after the decision of the Supreme Court in the Marape case, reminded us that:
The case relating to legal fees for the Paraka matter remains outstanding before the court through a judicial review by Senior Judge, Justice Bernard Sakora, which also reaffirmed that the warrant of arrest be stayed until the judicial review is heard.
In other words, there is still a stay on the arrest warrant for the Prime Minister in the Paraka matter and that is a significant because an arrest is all that the anti-government forces have on their mind and their agenda.
This is war
So, while a small battle has been won today, the war continues unabated – and make no mistake, for democracy, it is important that the Prime Minister wins.
For all the proceedings have base political motivations, where the only goal is to have the Prime Minister arrested so that he is forced to step down from office. There is no discernible aim beyond this. Indeed, all the proposed (aborted and abortive) protest rallies have this as their only objective. Why?
In reality, it is known that any charges against the Prime Minister are unlikely to be proved – but that doesn’t matter – the damage would have been done by then, their goal effected. But there would be far-reaching ramifications -not only to this current Prime Minister but all those that follow him.
In today’s press release the Prime Minister had this to say
As the serving Prime Minister of the day, I cannot allow a precedent to be set that will render future Governments weak and ineffective. Once a precedent is set then we know every future Government will become bogged down by malicious attempts to pursue arrest warrants by people outside the Parliament, simply for the reason of attracting media attention and applying political pressure.
To all those who ask time and time again why the Prime Minister does not “submit” himself to the courts, I think that question is now asked and answered.
The Prime Minister, in the aforementioned press statement, reiterated his confidence in the courts of PNG (whereas, on the other hand, I’m not nearly so confident) but stated he will not submit himself to the malicious and rogue attempts to use law enforcement as a political weapon.
That’s a response from a strong and responsible leader.
Every government inherits that which went before, sometimes it’s a golden chalice, sometimes the chalice is poisonous. The Prime Minister “inherited” the Paraka situation and he rightly states:|
The issues at the centre of this matter occurred before I was Prime Minster. Pursuing me on this matter is nothing but an attempt to influence politics from outside the Parliament and to undermine the authority of the Office of the Prime Minister, and the stability of the national government.
So, let’s clear away the debris and look at the real issues of this case and the reasons for the attempts to implicate the Prime Minister.
For also in the press statement the Prime Minister said:
We all know who are the real financial beneficiaries of the Paraka transactions, and only time will tell when these identities will be revealed. I look forward to the facts seeing the light of day on this issue.
Last week, in parliament, the Prime Minister named Don Polye and the THE party as two of the financial beneficiaries. He has also stated that the evidence is with the police – perhaps this may be worth the self-proclaimed, misnamed ‘anti-corruption’ forces pursuing before they finish their ‘dance of joy’ over this small and insignificant victory.
This pursuit of the Prime Minister is nothing like a ‘David and Goliath’ battle for David was on the side of righteousness – this is more like a sniper attack on the fabric of democracy in PNG.
This article is the first in a two-part series that looks at the Judiciary in Papua New Guinea. This first part will look at the newly-proposed legislation, ask some questions and highlight some concerns. The next part will look at the judiciary in general and seek to answer the question of whether the judiciary will be the saviour of PNG or merely a powerful part of the problem.
The proposed legislation to establish a Court of Appeal in Papua New Guinea and separate the National Courts from the Supreme did not pass last week.
However, that was not because of opposition to the bill.
As far as I can tell, there was only one dissenting voice, that of erstwhile government and now opposition member for Lae, Loujaya Kouza who walked out in protest. (She needn’t have bothered there was a deficit of numbers in the chamber -79 and 83 were needed for it to pass.)
In other words, opposition did not defeat the bill, apathy did – the MPs didn’t think it was important enough for them to make it into the chamber.
Indeed, when I asked a prominent PNG lawyer for comment he replied that he knew nothing of the proposed legislation.
They may just be missing something.
What’s it all about?
The Bill seeks to establish a Court of Appeal that sits above the National Court and below the Supreme. After appealing a decision to the new Court of Appeal there is a mechanism to further appeal to the Supreme Court but now, one must first ask for ‘leave’ to do so which may or may not be granted.
It’s added an extra layer to the justice process – a further avenue of appeal.
If passed, it will be similar to the Australian system where the Supreme Court is the court of appeal, in the first instance, then the High Court (which one must also obtain ‘leave’ to petition). However, Australia is over three times the size of Papua New Guinea and one is forced to ponder the necessity of such a system in Papua New Guinea or its usefulness in dispensing justice.
Moreover, what this will mean for the judiciary is that National Court judges will not automatically be judges of the Supreme Court as is the case currently. Judges will either reside in the National Court, the Court of Appeals or the Supreme Court.
It is expected that the appointments will be according to seniority with the most experienced judges being attached to the Supreme Court, the more junior judges in the National Court and the medium-term judges on the Court of Appeal.
With the practice of sending newly-appointed National/Supreme Court judges to the provinces; for them then to be denied their week in ‘the big smoke’ to sit on the Supreme Court, may be a sticking point with some when considering appointment and may deter some talented candidates.
What’s more, if this is indeed the intended arrangement, then the most experienced judges will no longer be conducting trials.
The other relevant questions are: who will head each division?
I am assuming the Chief Justice will preside over the Supreme Court and he is appointed (for 10 years) by the National Executive Council (NEC), but who will appoint the leader of the National Court and the Court of Appeal?
Will it also be the NEC or will it be the Justice and Legal Services Commission (JLSC) – a judicial agency dominated by the Chief Justice? What are the ramifications of each course of action? Whose interests will be served?
The scurrilous blogsite, PNG Blogs in an article written by Dianne Rut (likely a pseudonym) has accused the Prime Minister of using the legislation to protect himself. She writes:
…Peter O’Neill had been having very difficult time with judges who dealt with his cases were also in the Supreme Court [sic].
The suggestion is that this legislation will remove these judges from the courts of appeal (including the Supreme Court) and leave only experienced and easily manipulated judges (?) there.
Not only is that suggestion highly defamatory, it is also completely wrong.
Those with even a cursory knowledge of cordial relations between the Prime Minister and the Chief Justice will know that, probably stemming from the political impasse of 2011, there is no love lost between the two – and there’s no doubt the Chief Justice will head the Supreme Court.
Indeed, it has been suggested to me by a high-ranking former member of PNGs legal fraternity that:
…there is [maybe] a hope, which I think is forlorn, that if they [the government] give the CJ what he wants (including his K400m+ court complex) then he will be nice to them.
The Hon. Loujaya Kouza has also issued a press statement accusing the Prime Minister of base political motives. She writes:
I did not take part in the vote is simply because the timing was wrong [sic]. The intention was not only wrong but the initiator was ill-motivated as well.
Kouza called the Prime Minister “…an intelligent, brilliant architect of evil,” – but then she would, wouldn’t she? She sits (uncomfortably) on the opposition benches.
What Kouza did not do was look beyond the Prime Minister.
Kouza’s need to establish his sinister motives has blinded her to what may be the real agenda of this legislation given that these reforms were first suggested by the Chief Justice over 5 years ago.
Part two of this series will look at the Judiciary – the good, the bad and the ugly – Saint or Sinner?