Manus case to show courts' power
Whether the Peter O'Neill government or opposition leader Belden Namah - scourge of judges - is declared the victor, the courts will have showcased their ability to frustrate the nation's politicians.
It is a serious challenge the Gillard government's Pacific Solution is facing in the PNG courts.
The independence of the PNG judiciary was an important sub-theme in last year's political drama as rival prime ministers and governments struggled for supremacy - eventually resolved decisively in O'Neill's favour at the July election.
Luther Wenge, a former acting judge who became for a decade the elected governor of Morobe province, won a succession of constitutional challenges.
The most important were his overturning in 2002 of the 10 per cent value added tax, PNG's then new GST - ripping a great hole in the budget until legislation restored it - and his sinking of the Enhanced Co-operation Program in 2005. Under the latter, 154 Australian Federal Police officers had been deployed to PNG, and 60 other officials, as part of a $850 million aid package.
But Wenge claimed the rules under which the Australian police were operating infringed the PNG constitution, and won. The ECP limped along, but much of its impetus was lost.
Now Namah is seeking to do the same, challenging as unconstitutional the deal struck between the Gillard and O'Neill governments to re-establish an asylum-seeker centre on Manus island, in the country's distant north.
Namah is a former army captain who served five years' jail for sedition, and is a former Forestry Minister.
He was deputy prime minister to O'Neill, but clearly saw himself as inexorably shifting to the top job. His aggressive style and courting of controversy prompted O'Neill to drop him after the election. He shifted across to become opposition leader.
Why Namah has chosen to make the Manus Island centre his first major battleground with the government is intriguing. Perhaps he was impressed by the way Wenge courted PNG nationalism.
"We have compromised the sovereignty of our nation," he says of the Manus Island centre.
He didn't have much to say about the issue before, when he was in government. Previously, it has been Powes Parkop, the Governor of Port Moresby - a highly articulate former journalist and human rights lawyer who originally came from Manus - who has led the constitutional questioning of the centre.
Parkop says detaining people in PNG without trial is unconstitutional. It is against the country's culture and laws to hold people indefinitely, he says, "even if they are aliens from outer space".
It is also curious that Namah - who says the detainees have not committed any crime in PNG and so are being detained unlawfully - launched his legal challenge last Friday in the National Court, where cases are heard by a single judge. More usually, constitutional issues are determined by a five-judge bench at the Supreme Court, where the case will almost certainly end up. Namah's lawyer in the challenge is Loani Henao, a failed candidate at last year's election for Namah's party.
Henao says: "By virtue of the memorandum of understanding (between Australia and PNG), the asylum-seekers who were in Australia were in effect forced to come into PNG territory."
The legal year does not formally start in PNG until February 1, and the courts may not be inclined to go out of their way to accommodate Namah by bringing forward a hearing.
As deputy prime minister, he ordered the suspension of Chief Justice Salamo Injia; then, last May, he notoriously stormed into the Supreme Court with police and ordered the arrest of Injia, whom he accused, with Justice Nicholas Kirriwom, of "clearly political and vindictive" actions.
He said then: "My leadership style is probably new and strange to our country, but I strongly believe (its) time has come."
The O'Neill government has since come to a rapprochement with the judiciary. And, while it would be wrong to assume that Namah's form on judicial independence will colour the manner in which the courts consider his claim, it would equally be naive to assume it will not affect the way or timeframe in which the hearings are organised.
O'Neill is underlining the importance of the deal he has struck with Canberra, by flying on Friday to Manus - where he will be warmly received. For people on Manus, the asylum-seekers have brought with them the attention not only of Canberra but also of Port Moresby, and O'Neill will announce some funding for a community that has long complained of being overlooked.
Whatever the outcome of Namah's challenge, the ripples from this Pacific Solution seem destined to keep spreading, for better or for worse, into the farthest corners of the region.
Rowan Gallick The Australian
This article was first published by The Australian newspaper on the 23rd of January 2013
