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?

Share Button

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

Share Button

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.

Share Button

Slip rule applications are rarely successful.

By PNG Echo

Justice Derek Hartshorn - Leave denied.
Justice Derek Hartshorn – Leave denied

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.

Share Button

Look who’s talking – Foreign media.

By PNG Echo.

The failed state of PNG

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.

Hon Gary Juffa, Governor of Oro
Hon Gary Juffa, Governor of Oro

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.’

Lawyer Tiffany Twivey
Lawyer Tiffany Twivey

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:

Lawrence Stephens formerly of PNGSDP, currently, Transparency International
Lawrence Stephens, Transparency Int.

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.

Sam Koim - has his own questions to answer over corrupt actions that he'd rather avoid.
Sam Koim – has his own questions to answer over corrupt actions that he’d rather avoid.

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.

PNG Courts

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.

Justice Terry Higgins
Justice Terry Higgins

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?

While I have also not seen any evidence that Justice Higgins is anything but impeccable and ditto other ‘non-white’ Papua New Guinean judges, nevertheless, in my close observations of the courts lately, I have seen some extraordinarily illogical decisions handed down by some and have remarked on them
See http://www.pngecho.com/2016/04/26/political-shenanigans-in-png-could-the-chief-justice-be-involved/ http://www.pngecho.com/2016/04/19/is-the-judiciary-overstepping-its-jurisdiction-the-damaru-case/   http://www.pngecho.com/2016/03/30/the-png-judiciary-the-power-and-the-glory-part-two/ http://www.pngecho.com/2016/03/29/the-reformation-of-the-court-system-in-papua-new-guinea/

Yet Seccombe tells us:

Others spoken to for this story say likewise: the government might be crook but not the courts.

Another of Seccombe’s immpeccable sources: “Others spoken to.”

With all this in mind, does this give Seccombe the qualification to gratuitously call the government of Papua New Guinea variably, corrupt, crook and greedy?

My advice, #takebackpng# – start listening to people who are talking to you – not those talking to the vested interests (that aren’t yours).

Share Button

Twivey and Sakora arrested: Justice scorned

By PNG Echo

Tiffany Twivey-manhandled
Twivey, Manhandled

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

said Twivey.

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,

she said.

So what were Twivey’s sins that she was arrested and manhandled in this ignominious fashion?

Sam Koim - has his own questions to answer over corrupt actions that he'd rather avoid.
Sam Koim – has his own questions to answer over corrupt actions that he’d rather avoid.

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?

Justice Bernard Sakora whose sin seems to be deciding in favour of the PM
Justice Bernard Sakora whose sin seems to be deciding in favour of the PM

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.

Share Button

The PNG Judiciary – The power and the glory – Part two

By PNG Echo

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.

Chief Justice Sir Salamo Injia. The first amongst equals.
Chief Justice Sir Salamo Injia. The first amongst equals.

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

And here's another idea of the great philosopher
And here’s another idea of the great philosopher

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.

Sir Kina Bona and Sir Salamo Injia at the legal year opening, Bougainville, 2015
Sir Kina Bona and Sir Salamo Injia at the legal year opening, Bougainville, 2015

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.

Tiffany Twivey leaving the court with Barrister Mal Varitimos
Tiffany Twivey leaving the court with Barrister Mal Varitimos

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.

Share Button

Lawyers’ appeal fails

By PNG Echo.

Tiffany Twivey leaving the court with Barrister Mal Varitimos
Tiffany Twivey leaving the court with Barrister Mal Varitimos

A three-man bench of the Supreme Court today refused the application of Lawyers Tiffany Twivey and Sam Bonner to have their referral to the Law Society quashed and so the referral stands and will go ahead.

The decision to refuse the appeal was a majority decision (2:1) of Justices Makail and Sawong with Hartshorn dissenting.

The referral to the Law Society for disciplinary action was initiated by Justice Kirriwom and announced in court during the hearing of the case of the arrest warrant of Secretary of Treasury Dairi Vele and the replacement of two respondents without, what the learned Judge considered, sufficient notice. The complaint/order was later followed up by His Honour by letter to the Society.

Lawyers for Twivey and Bonner argued that the pair had not been accorded natural justice or procedural fairness by the court before the referral. They were given no opportunity to respond to the allegations.

Sam Bonner - referred too
Sam Bonner – referred too

Twivey and Bonner contended that, as such, the ensuing plethora of publicity in the mainstream and online press (that had only one side of the story to report -Kirriwom Js) had tarnished their reputations’ and impacted negatively on their standing in both the eyes of the public and their clients and they stood to lose personally, substantially and professionally.

The cases were not decided on any wrongodoing on the part of the two lawyers but on a procedural consideration of whether the referral was a court order or a complaint.

Two judges decided that the referral was not a court order and that they had no jurisdiction to hear the appeal and indeed may be usurping the role of the Society were they to.

It was considered that all the grievances of the lawyers could be aired when the Society considered the complaint.

Justice Derek Hartshorn - dissenting
Justice Derek Hartshorn – dissenting

Hartshorn’s dissent arose from the fact that he considered that the referral was a court order and he agreed that natural justice had not taken place and furthermore was of the opinion that, under the circumstances, if the complaint was subsequently heard by the Law Society, justice would not be served as the nature of the referral had already done the damage regardless of the eventual outcome. He wanted the case quashed.

So, in this matter, the Supreme Court of Papua New Guinea has passed the buck to the Law Society with but a single prick of conscience from the dissenting judge for the potential damage to reputations that has already been caused.

I guess it’s medical doctors not Judges that take the Hippocratic Oath – “First do no harm.”

Share Button

PM to charge Koim with contempt after ‘Show Cause’ motion dismissed.

By PNG Echo

Lawyers representing the Prime Minister
Lawyers representing the Prime Minister

A motion brought before the National Court by the Prime Minister for Sam Koim, to ‘show cause why he should not be charged with contempt’ for allegedly disobeying a court order restraining him discussing matters before the courts in regards to Task Force Sweep has been dismissed by Justice Colin Makail today.

The learned Judge said that there were only two ways to proceed with contempt charges and that was for the courts to bring the charges or for one party to bring the charges against another – to ask a party to ‘show cause’ was a procedural error and Justice Makail ruled the motion as “incompetent” and dismissed it.

However, the Judge advised that it was open for the Prime Minister and the NEC to charge Koim with contempt and lawyer for the Prime Minister, Ms Tiffany Twivey, advised, in open court this morning, (Tuesday 23 Feb.) the intention of her client to do so.

Justice Makail, in making his ruling, dismissed the case purely on a procedural hiccough without considering the merits of the contempt allegations.

It is expected that the charges will be filed within the next week.

Share Button

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.

Share Button