SUPREME COURT RULES AGAINST POLICE COMMISSIONER GEOFFREY VAKI
This morning the Supreme Court handed down its ruling against Police Commissioner Geoffrey Vaki's view that he as the Head of the Police Constabulary has constitutional powers under Section 198 of Constitution to set aside the arrest warrants against the PM.
Section 198 of the Constitution provides for the office of Commissioner of Police and prescribes his powers as being responsible for the superintendence, efficient organization and control of the Force in accordance with the Police Act 1998.
Vaki argued that as the Commissioner of Police he has wide powers, control, and superintendence of the Police Force and such powers give him the right or discretion to withdraw arrest warrants.
In defence against Vaki's case Fraud Squad Members represented by Egan and former Police Commissioner Tom Kulunga represented by Moses Murry argued that a warrant or arrest was an order by the District Court which must be followed. Any disobedience to the order is contempt of court.
The arrest warrant was issued by District Court back in June after members of National Fraud Squad made a request to the Chief Magistrate. They applied for the warrant against the PM on Official Corruption charges after finding the PM was implicated for authorising the payments of K71.8 million to Paul Paraka Lawyers.
Official Corruption is a criminal offence under Section 87 of Criminal Code. Section 87(2) states that a person can not be arrested without a warrant (order of the court). Unlike most criminal offences that don't require a warrant of arrest official corruption involves persons in high-profile positions and to avoid politically motivated or wrongful arrests damaging their reputation the law states that police must first obtain a warrant (order) from the District Court. The District Court Magistrate will first review the police evidence to confirm there is reasonable grounds or sufficient evidence to justify the arrest of the accused.
The Fraud Squad members like every member of the force have constitutional powers under Section 197(2) of Constitution to lay, prosecute or withdraw charges against any person who breaks the law. The members of the Police Force are not subject to direction or control by any person outside the Force.
The Police Commissioner who is not outside the force and serving the interests of the PM believed he had overriding constitutional powers to direct or control members of constabulary including their rights of arrest and setting aside arrest warrants obtained by members of the force.
The Supreme Court ruled today he has no such powers to set aside a court issued arrest warrant which is essentially a Court order. However the Police Commissioner has authority to issue directions to other members of the Police force regarding the conduct of criminal investigations, including applying for arrest and search warrants, laying or withdrawing charges. If he were to abuse these administrative powers by preventing a member of the force from arresting someone or ordering them to withdraw the charges without proper grounds then he would be subject to disciplinary charges, either under the Police Act or referral to OC and if found guilty dismissed from office.
After the National Court Judge Kariko refused the PM's application that was supported by Vaki to stay (stop) the arrest against him back in June, Vaki then filed an application in the District Court to withdraw the arrest warrants.
The Chief Magistrate Nerri Eliakim refused Vaki's request, ruling it would be a direct interference in the functions of the Police. The Chief Magistrate endorsed the National Court Judge Kariko's ruling, saying the issue of the investigation and arrest was an administrative matter for the Police. Unless there was an abuse of power by members of force, however Vaki failed to produce any evidence that the warrant was obtained improperly and also failed to satisfy the court that an arrest warrant is not needed to arrest the PM. The Magistrate referred to Section 87 of the Criminal Code that a warrant of arrest is needed to charge a person alleged to be involved in official corruption.
The Chief Magistrate also stated that before a warrant of arrest is taken out on the said charge, a prima facie case (latin meaning sufficient evidence) must be established. She said that was established by the former Commissioner, Tom Kulunga.
Vaki then appealed or challenged the decision of District Court by filing for Judicial Review in the National Court. The National Court which is a higher court has inherent powers to review any decision of the District Court.
In a Judicial Review the Court only looks at the administrative procedures or processes used by the decision making authority in this case District Court to arrive at the decision. It is not concerned with the decision itself. If the findings confirm the statutory or administrative procedures or processes were not complied with it will overturn the decision and refer it back to the decision maker (District Court) to comply with procedural requirements.
The four main grounds which a Judicial Review is based is
(a) Substantive ultra vires - It is to review "excess of power" or "jurisdictional facts" as well as constitutionality of administrative acts.
(b) Procedural ultra vires - It is to review compliance of administrative decisions with statutory procedural requirements.
(c) Natural Justice - It is to review the fairness and reasonableness of those administrative decisions including review of open motive and abuse of discretion.
(d) Error of Law - It is to review administrative decisions that are wrong in law.
Before the Court will hear a Judicial Review application a person must be granted leave (permission) to prove they have been aggrieved (affected) by the previous decision and they have an arguable (strong) case.
In this case Vaki filed for judicial review in the National Court to review the decision of the District Court refusing his request to set aside or withdraw the arrest warrants against the PM. When he applied for leave (permission) the Chief Justice refused his application/request on the grounds he did not have standing because he was not aggrieved (affected) by the decision, the arrest warrants were against the PM not Vaki. Following the decision of CJ the PM's lawyers returned to Court asking for leave for Judicial Review. The CJ granted the PM leave to review the decision of the District Court. The case then came before Justice Gava-nanu who referred fifteen constitutional questions to Supreme Court because the issues raised by Vaki referring to his interpretation of Constitution powers under Section 197 and 198 of Constitution. A further issue was that Task Force Sweep filed contempt charges in National Court against Vaki for failing to comply or enforce the arrest warrants against the PM. Because there are no clear processes or procedure whether contempt charges against orders of the District Court can be heard by the National Court this issue needed to be clarified by the Supreme Court.
Today the Supreme Court ruled the National Court had jurisdiction (power) to determine contempt charges against District Court orders. Basically the Task Force Sweep contempt proceedings against Vaki can now proceed. Because the Supreme Court ruled Vaki has no powers to set aside or withdraw arrest warrant against the PM he is liable for contempt of court charges which was the case for the former Commissioner Kulunga. If found guilty or convicted Vaki may be sentenced to serve time in prison.
The Supreme Court did rule that Vaki as the Commissioner of Police did have standing to file Judicial Review of the District Court decision to issue arrest warrants. However he would have to prove that the members of the force acted ultra vires (latin meaning acting beyond ones powers). In this case it was the former Commissioner Kulunga who approved the Fraud Squad's request for the warrants from the District Court.
So what does the Supreme Court's decision mean in relation to the arrest warrants against the PM. Well the National Court issued a stay order against the warrants pending the final determination of the Judicial Review. The stay remains in effect until the final ruling of the National Court. The findings of Supreme Court will be now be referred back to the National Court to consider in it's final ruling. If the National Court rules against the PM based on the ruling by the Supreme Court then the Court will dismiss the Judicial Review by the PM and remove the stay order on the warrants. This means the Vaki will be forced to allow the members of Fraud to arrest the PM.
Supreme Court also ruled Vaki has standing to challenge the arrest warrants issued by the District Court even though the CJ was of the opinion he didn't. So Vaki may now refile and apply for leave for judicial review against the District Court decision to issue the arrest warrants. He will still need to obtain leave (permission) from the National Court and demonstrate he has strong case if granted leave he can apply for stay on the warrants again until the National Court hears the Review. Failing that the arrest warrants will have to be effected by Vaki or face further contempt charges.
My apologies for being absent from posting on facebook I have been quite busy with a number of assignments over past few weeks. Hopefully I can commit sometime over the next few weeks to continue to keep people informed. This ruling although predicted is only the tip of the iceberg to what's coming.
