NATIONAL COURT ISSUES INTERIM STAY ON PM'S ARREST
On Friday 18 July 2014, the National Court Judge Gavara-Nanu granted leave (gave permission) to the PM for Judicial Review of the District Court decision refusing the Police Commissioner Geoffrey Vaki's request to set aside or withdraw the arrest warrants against him (O’Neill).
In the handing down his decision Judge Gavara-Nanu issued the following orders (summarized).
1) The PM is be allowed to join Vaki's application for leave as 2nd Plaintiff seeking Judicial Review of the District Court decision.
2) Leave is granted to the PM for Judicial Review of the decision of the District Court on 12 June 2014 issuing a warrant of arrest compelling Fraud Squad Members to arrest the PM for allegedly committing the criminal offence of Official Corruption.
3) Constitutional question be referred to the Supreme Court to answer whether the Constitutional powers provided to the Police Commissioner under Sections 197 and 198 of the Constitution - including the Police Act - gives him the powers to challenge the validity of a warrant of arrest issued by the District Court Magistrate that were applied for by a Police Officer.
4) The warrant of arrest against the PM be stayed (stopped) until the decision of the Supreme Court regarding the constitutional powers of the Police Commissioner and the decision of the National Court Judicial Review of the District Court decision.
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So what does this all mean in layman terms?
Analysis by BRYAN KRAMMER
(1) Initially it was Vaki who filed the case in the National Court for leave (asking for permission) to review the decision of the District Court after the District Court Chief Magistrate refused his request to withdraw the arrest warrants against the PM.
At the first hearing in the National Court the Chief Justice (CJ) raised the point to Vaki's lawyer, why is your client (Vaki) seeking Judicial Review when he is not aggrieved (affected) by the decision of the District Court, in that the arrest warrants are against the PM not Vaki. The CJ suggested it's the PM who should be seeking Judicial Review. Vaki's lawyer then asked for an adjournment (defer or postponing court hearing to another day) to discuss the issue with his client. The CJ adjourned the case to Friday 18 July 2014. When the matter returned to Court on 18 July 2014, the PM's lawyer appeared in court making a request to join Vaki's case as a plaintiff (a plaintiff is a person who files a case in court). In this case Vaki filed as the only plaintiff and PM wanted to join to support his case as 2nd plaintiff. The Judge granted leave (permission) to the PM to join the case because ultimately he was the person affected by the District Court’s decision to issue arrest warrant against him.
2) The Court then heard arguments from both Vaki and PM's lawyers asking for leave (permission) for Judicial Review of the District Court’s decision. In the end, the Court refused Vaki's application because he never had standing in that to qualify for Judicial Review you have to be a person aggrieved or affected by a Court's decision. The decision of the District Court to issue arrest warrants only affected the PM so the court only granted leave for Judicial Review to the PM.
So what is a Judicial Review?
A Judicial Review is a special process of the Courts where a person aggrieved or affected by an earlier decision of the Court can make an application or request to a Higher Court to review the decision of the Lower Court that made the decision against them. In this case Vaki initially filed an application in the District Court who ruled against him. So he applied to the National Court (higher court) for Judicial Review of the District Court's decision (lower court). Although the District Court ruled against Vaki he did not qualify to seek a Judicial Review because the decision by the District Court to issue the arrest warrants was never against him, but against the PM.
The process of Judicial Review first involves a person obtaining leave (permission) from the higher court before it will review a decision. This is because Judicial Review is not a right to any person but special inherit powers afforded to the National & Supreme Courts to review any decision of a lower court. These powers are provided for under Section 155 of Constitution. A National Court can only review a District Court or a Tribunal decision, and the Supreme Court can review all rulings including National Court decisions.
Whether or not the National or Supreme Court will grant you permission is at their discretion if they believe you have a very strong case and not just wasting the Court’s time. This process for leave (permission) involves a single court judge to first hear a person's application and look over the reasons for them wanting a Judicial Review. You first file an application (motion) outlining your reasons/grounds to demonstrate that you have an important point of law or question of fact that justifies the Court granting you permission for Judicial Review. A person can only apply for Judicial Review in special circumstances where either there is no right of appeal or after someone has lost an appeal.
An example where there is no right of appeal or law prohibits an appeal: In an Election Petition the Organic Law on Elections Section 220 states the National Court ruling in an Election Petition is final and not subject to appeal. So where the National Court rules against a person in an Election Petition it prohibits any appeal and therefore the only option is for the person who believes they are aggrieved by the decision to apply to the Supreme Court for a Judicial Review.
I'm sure there are those of you who are asking the question but what is an appeal? In most court proceedings civil (private disputes) or criminal cases if a court rules against you, by law you have a right of appeal to challenge the Court's decision. This right of appeal is provided by law and you don't need to apply for leave (permission). The reason for appeal or review is, we are all human and sometimes make mistakes, and the best way to find out if a mistake has been made is to have it checked. An appeal or review is a process of the Courts to double check its own decisions to avoid injustice either through bias decisions or honest mistakes. If you believe the Courts decision is biased or it made a mistake then it's up to you to appeal to a Higher Court to overrule the lower Courts decision against you.
If a decision is made in the District Court you appeal to the National Court. A decision of the National Court can only be appealed in the Supreme Court. The same applies for Judicial Reviews. The Courts have put in place strict processes and guidelines for appeal or Judicial Review to follow including deadlines to file. In an appeal a person must file their case within 40 days from the Courts decisions against you. In the case of Judicial Reviews the deadline to file is just 14 days. If you fail to comply with this process or deadlines the Courts will typically throw-out your case.
So what's the difference between an appeal and a Judicial Review? In an appeal you don't need the Court's permission and is common in civil and criminal cases. In a Judicial Review you first need the Court’s permission. In an appeal the higher court will look over the lower court's decision in detail to confirm if all processes were followed in arriving at its decision. However, in a Judicial Review, the Court will take a narrower approach and is only concerned if the final decision was lawful. Whether there is an important point of law raised, in that you believe the Court applied the wrong law or whether the facts the Court relied on were so outrageous and absurd that it resulted in injustice.
So in this case the National Court granted leave (permission) to the PM to have the National Court review the decision of the District Court when it issued the arrest warrants against him. The reason of the review was not based on facts but on important point of laws raised by Vaki and PM's lawyer.
1) The first being whether or not a District Court had the powers to issue the arrest warrants compelling or ordering the Fraud Squad members including every member of the Police force to arrest the PM.
2) Whether the Constitutional powers provided to the Police Commissioner under Sections 197 and 198 of Constitution including the Police Act give him the powers to challenge or withdraw the warrant of arrest issued by the District Court Magistrate that were applied for by a Police Officer.
The second point was referred by the National Court to the Supreme Court to answer. Why? Because it relates to Constitutional Law (highest law) which comes under jurisdiction of the Supreme Court (highest court). So the Supreme Court will first have to interpret or answer this question before the National Court will hear and rule on PM's Judicial Review case.
To answer why this question was asked in the first place is because Vaki raised this point as part of his arguments asking for leave for Judicial Review. When Vaki filed a case in the District Court to withdraw the arrest warrants his lawyer argued that as the Acting Police Commissioner Vaki was empowered under Section 198 of the PNG Constitution responsible for the superintendence (management, administration and control of the Police Force. Vaki argued the District Court erred in law by not taking this into consideration when it refused his request for the Court withdraw the arrest warrants against the PM. Vaki relied on Justice Kariko comments in his ruling against the PM's earlier National Court application to stop Police from arresting him. The Judge stated that “the administrative matters are for the Commissioner of Police to resolve and not the Court."
The District Court Chief Magistrate Nerrie Eliakim ruled that the application by Vaki to discontinue the arrest warrants on PM was misconceived (wrong). The Chief Magistrate explained that police were required by law to obtain arrest warrants on Official Corruption cases before charges are laid, such as the current case of O’Neill. Further, that there were no proper reasons as to why Vaki should revisit the investigation files when the former Police Commissioner Sir Tom Kulunga had already assessed the files and established a prima facie case to have the matter prosecuted. The Chief Magistrate stressed that the National Court decision by Justice Kariko was not disputed and that it clearly stated that the courts cannot interfere with the work of police. It would be in direct interference with the work of police if the warrant was discontinued. "Courts can only interfere when there is a clear case of abuse,” she said. She also said court orders were meant to be obeyed and should be obeyed at all times. She therefore refused the application. (source post courier).
So now Vaki and PM filed a Judicial Review arguing the Chief Magistrate erred in law by not accepting the Police Commissioner (Vaki) had constitutional powers over the entire force and there the powers to ask the court to withdraw the arrest warrants. The Supreme Court will determine whether or not the Constitution does give Vaki such powers.
In the mean time now that the PM has been granted leave for Judicial Review and until the Supreme Court rules on that question the PM's lawyer will be required to first file new proceedings for Judicial Review in the National Court and also responsible for compiling the Review Book. A Review Book will contain all the relevant documents that the court will consider in reviewing the District Court's decision. This will include all originating documents filed and argued in the District Court by Vaki's lawyer including the District Court’s decision and orders.
The Judicial Review process will go through a number of court hearings before the National Court will hand down its final decision. The first hearing is the Directional Hearing where the Court will issue directions for parties to comply setting deadlines to file relevant documents that will be included in the Review Book etc. Second is the Status Conference hearing where the Court will confirm all orders at the Directional hearing were complied with and the case is ready for substantive (main) hearing. Third, the Substantive hearing where the Court will hear the main arguments from the PM's lawyer. 4th is the Final Decision after the Substantive hearing the Court will adjourn or defer handing down its decision to carefully review and consider all the arguments and documents. This process of Judicial Review may take up to three months, in some cases one year, depending on the Judge who takes the case and availability of dates. You can also expect the PM's lawyer to look for every excuse and opportunity to delay this process as they did in the first National Court case. The longer the issue is before the Court the longer the stay order remains in place preventing his arrest.
Lastly the National Court issued interim stay order preventing Police from arresting the PM. Many have asked why? The Court will typically invoke its powers under Section 155(4) of Constitution to issue interim stay orders when a matter before the Court. Section 155(4) gives both the National and Supreme Court inherit powers to issue any orders to do justice in circumstance. In this case the Court saw it was just to stop Police from arrest the PM until it heard the case and it would defeat the court process if Police arrested the PM then there would be no point for the court to review the decision especially when it has ruled there is an important point of law to determine.
In humble my opinion the National Court should rule against the Review and uphold the District Courts decision. The Supreme Court should also rule that the Police Commissioner powers under section 198 of the Constitution that relate to management and administration of the police force does not give him powers to interfere with every Police Officers constitutional powers of arrest provided by section 197 of the Constitution. Vaki would only have powers to infer if the Police officers abused these powers and there are no evidence to prove they did. This view is consistent with the Chief Magistrate's ruling.
Irrespective the PM's Lawyers objective was never to win the case but to (1) obtain a stay order against the PM's arrest and (2) lock up the matter in courts. Both objectives they have achieved and probably celebrating over it. Remember its not PM or Vaki making these calculated decisions it highly paid lawyers and consultants behind the scenes. However in politics as the saying goes there is more than one way to skin a cat and it was never the arrest that will remove the PM. It's what we will discuss in my next article.
