THE UNTOUCHABLES POLLUTING OUR JUSTICE SYSTEM

By KELLY PERAMO

One of the top brains of this country, Sir Mekere Morauta once described the scale of corruption in this country as “Systemic and Systematic”. Many others have labelled it as having permeated throughout the fabrics of the society. Corruption is said to have widespread in Government and is prevalent in how businesses are conducted both in private and public sectors. 

We are experiencing unprecedented number of prosecutions of leaders both by police and the Ombudsman Commission. These are leaders mandated by our people but the law is keeping a check on their exercise of powers. Eventually, their fate will be ultimately determined by the judiciary. Thanks to the Deputy Chief Justice Sir Gibbs Salika, who is an unapologetic member of the bench and sending a strong message with the number of people he is sending to jail. Sir Salika seems to be motivated to send wrong doers to jail and has no time hunting escape routes for criminals. 

The judiciary, though the third arm of the tripartite system of Government, enjoys a further constitutionally entrenched independence.  In principle, the other two arms of Government supposed to provide check and balance on the judiciary. Nonetheless, nobody outside of National Judicial System including the Minister for Justice has any power to give directions to any court, or to a judge of any court, in the discharge of their judicial functions. The judicial powers that the judges exercise is the peoples’ power vested in them by the Constitution. Each judge takes an oath of office, promising to uphold the law and deliver justice without fear or favour.

At the decline of public confidence and trust on the other two arms of Government (Legislature and Executive), the judiciary has become the last bastion of hope for the people. Every other Legislative and Executive decisions are increasingly subjected to judicial scrutiny.  This has elevated the judiciary to be more powerful and incompatibly superior to the other two arms of government.

International and regional human rights instruments recognise as fundamental the right of everyone to due process of law, including a fair and public hearing by a competent, independent and impartial tribunal established by law.

It's beneficial to have an independent judiciary. The question is “who effectively scrutinises the judicial functions?” Those who are sitting on the seat of justice –are they without vice?  Sure they are not saints insulated by impenetrable righteous walls. If all other government institutions, including constitutionally independent institutions, are infiltrated by corruption and “wantok” networks, is the judiciary spared? Of course judges are professionals and must be of impeccable standing to qualify for appointment. But sit down and try to imagine some of the strange decisions of judges of the recent past.

I have been following and observing some of the recent high profile cases and the results of my discovery scared me. Something is wrong somewhere in the judiciary after I left the court registry many years ago. I have conducted a number of file searches and asked a number of relevant people and the following is an account of my findings. I did it as a private citizen and I cannot disclose my identity due to the sensitivity of the issue.

1.    2011/2012 POLITICAL IMPASSE CASES


The 2011/2012 political impasse, though engineered by the Legislature and Executive Government, spilled over to the Judiciary and the memories are still fresh. A number of unparalleled behaviours were displayed by individual judges. 

a)    LATE JUSTICE HINCHLIFFE’S ESTATE


This was a diseased estate claim pursued by the adopted son of late Justice Timothy Hinchliffe, Junior Hinchliffe.  Late Justice Sevua granted the orders for NJSS (Judiciary) to pay the estate funds (K200,000 plus) to Junior. The CJ Injia however, without even varying the orders of Sevua J, made an administrative decision and directed the registrar to pay the funds into NJSS accounts.
During the height of the political crises, CJ was arrested and charged for diverting the funds in contravention of the court order. Most extraordinarily in the commonwealth jurisdictions, the CJ granted an order preventing his own arrest in the first instance. Then he asked Justice Manuhu, who without even hearing arguments from both sides, granted a permanent stay on the criminal case.

Now with the recent five men bench Supreme Court ruling on Eremas Wartoto’s case where it was held that the Civil Court cannot interfere into a criminal process, it would be interesting to know where this particular case would be placed. CJ Injia himself in the ruling intimated that unusual decisions like controversial lawyer Herman Leahy’s case would be reviewed in light of the Wartoto ruling. Will his own case be reviewed as well?

b)    SUSPENSION OF CJ BY NEC AND COMPROMISE OF CASES

During the height of the 2011/2012 political crises, CJ Injia and Justice Kirriwom were suspended by a NEC chaired by O’Neill for allegedly taking sides with the Somare faction. Despite the NEC decision, CJ and the judges continued to demonstrate contempt against the NEC and deliberated on cases that challenged the legal validity of the change of government. That prompted O’Neill and at O’Neill’s counsel Namah, decided to storm the Court House. Belden Namah, in the company of a number of ministers, police and soldiers, stormed the court house whilst the Chief Justice was in session. This is the contemptuous behaviour of the highest magnitude. This was not only an attack on the CJ but the entire judiciary. CJ Injia ordered the Registrar to institute contempt proceedings against Namah, O’Neill and other ministers.

Through my researches, I discovered that O’Neill/Namah unnoticeably signed a consent order with CJ Injia which nullified the NEC decision suspending CJ & Kirriwom on the one hand and the contempt charges against O’Neill/Namah on the other hand. CJ Injia traded the criminal charges to preserve his own job!

2.    CASES RELATING TO THE CRIMINAL ARREST WARRANT OF PM PETER O'NEILL


a)    O'Neill & Vaki -v- Nellie Elliakim & The State.


In this judicial review case, I discovered that the principal argument was that there was no Information at the District Court to originate the issuance of the warrant of arrest against PM O’Neill. Despite O’Neill not being a party in the initial proceeding, the presiding judge went backwards to allow him to be joined at the hearing. The judge didn't bother to ask the parties who obtained the warrant to be joined as they would be the ones who would suffer any judgement without being heard. The judge in haste granted the leave application and further ordered a stay on the arrest warrant.  To frustrate the process further, the judge referred some questions to the Supreme Court by way of a reference for the Supreme Court’s opinion.

Another related proceeding (Contempt of court against Geoffrey Vaki for not executing the warrant of arrest against PM O’Neill) was also referred by the Chief Justice Sir Salamo Injia to the Supreme Court for a consolidated hearing. The Supreme Court made its determination. (IN RE POWERS, FUNCTIONS, DUTIES AND RESPONSIBILITIES OF THE COMMISSIONER OF POLICE [2014] PGSC 19; SC1388 (2 OCTOBER 2014)).

Immediately after the Supreme Court delivered its opinion, the Chief Justice, as a matter of course, recalled the National Court proceedings (contempt case against Vaki), registered the Supreme Court opinion, and progressed the matter to hearing. It is understood this matter is pending completion of trial.

For reasons known to the presiding judge (Gavera-Nanu) and the Chief Justice himself, the case regarding the stay of the arrest warrant was never listed to take its course. My inquiries confirmed that lawyers representing the Police (Timothy Gitua and Mathew Damaru) have written countless letters, filed countless applications to get the matter listed without much success. Notices of Motions were filed to force it on the court registry to give a return date. I’m told the registry clerks were advised against giving a date. I have asked the registry clerks to conduct a search on the file. They keep telling me the file is with the Chief Justice. Some of them were my own colleagues from years back but they cannot provide anything to me. It’s been SEVEN MONTHS now and nobody knows why a case that has considerable national interest attached to it is being kept in the chambers of the Chief Justice. The other parties are denied an opportunity to challenge the stay order obtained by PM O’Neill. For someone who worked with the National Court registry during my preparatory years, I am at a loss understanding this. This is something out of the ordinary!

Interestingly, and on the flipside, Gavara-Nanu J was renewed his contract for another term in December 2014 (while he was sitting on the matter). And the Chief Justice is pushing more projects for his home district (Tsark/Wapenamanda) and the judiciary –readily funded by the Government of O’Neill.

So what is actually causing the delay? Are the judges too scared to admit that a stay order was issued on a misrepresentation that they willingly accepted? Are they using the stay order as a bargaining chip for personal gain? Are they too scared of Peter O’Neill just like everybody else?

b)    O.S. NO. 115 OF 2014: MARAPE & O’NEILL –V- PARAKA

This was a taxation suit filed by Paul Paraka Lawyers to apply to the Court for Paraka’s controversial bills be treated as taxation matters and not as criminal. That case existed at the time when PM O’Neill was served the warrant of arrest so he used that case to obtain a stay order against the warrant. Mr O’Neill’s application for stay was however refused by Justice Kariko. (MARAPE V PARAKA [2014] PGNC 118; N5740 (1 JULY 2014))

James Marape filed an appeal against Kariko’s decision. When the heat was turned on, both Marape and O’Neill applied to the court with all their lawyers consenting on both sides, and obtained blanket restraining orders against police from ever arresting the duo. In recent turn of events, the new and most learned judge from Australia, Justice Higgins remarked words to the effect: “how taxation proceedings were used to stay criminal proceedings is something out of the ordinary”. He said those remarks when granting the police detectives leave to be joined as parties in the proceedings and potentially to set aside the crazy blanket orders issued by the Supreme Court.

Observing that Justice Higgins would not spare the stay order protecting PM O’Neill if he proceeded to hear the substantive case, he (Higgins) was quickly whisked away to be a resident judge in Kokopo in less than two weeks after his decision. One wonders the utility of transferring a learned judge (Higgins is former Chief Justice of Australian Capital Territory) to a remote centre to deal with insignificant cases when he could assist to dispose the backlog of major cases in Waigani.

Meanwhile, it is understood applications to discharge the stay orders are not attended to and who knows, might take another year.

c)    KOIM –V- O’NEILL & NEC

In this judicial review proceeding, the Chairman of Taskforce sweep challenged the NEC decision abolishing the Sweep team. A permanent stay order was granted. Legally the effect of the order ensures the team operational. Nonetheless, that had been undermined by government not providing the funding. That clearly is contemptuous! I have conducted file search on the court file and learnt that Sweep team’s lawyers filed contempt proceedings against Secretary for Finance and Treasury to force it on them to release the funding. For some unknown reasons again, the court registry clerks were told not to give a return date for these contempt applications and charges. Further applications are understood to have been filed last year to direct O’Neill Government to release funding for Sweep team but that too has not been given a return date for hearing despite many follow ups. Under the National Court Motions Rules, a Notice of Motion has to be given a return date. This is a real unfamiliar practise of a case! Those applications are colouring the court file in the registry since last year as the sweep team bleeds dry.

3.    ILA GENO’S CHALLENGE ON THE CONSTITUTIONAL VALIDITY OF THE 30 MONTHS GRACE PERIOD


In that constitutional reference case, Ila Geno, former Chief Ombudsman of PNG, challenged the O’Neill Government’s decision to amend the constitution and extend the grace period to 30 months and further placed substantial restrictions on the procedure for mounting a vote of no confidence.

The Supreme Court heard the reference and reserved ruling. Instead of returning to deliver its opinion, the Supreme Court for some very infrequent reasons recalled parties to reopen the case and allow parties to produce some facts. This is unusual because Supreme Court references are matters that purely require interpretation of the constitution and do not delve into factual issues.  A further unusual bit is the fact that instead of requesting parties to obtain extrinsic evidence such as the Parliament Hansards to ascertain the real intention of the Parliament “at the material time” when they passed and changed the law on the grace period, the Supreme Court requested founding fathers like Somare and Chan to provide affidavits explaining their age-old intentions. Wondering they still remembered??? Politicians’ intentions and overt actions are dictated by the politics of the day and hope the court achieved what it fished for.

The affidavits were filed anyway. That case is still pending. The reopening and protracted hearing has surpassed the utility of the proceeding. The grace period had lapsed in February this year and the Supreme Court is still yet to determine the case. Looks like the balance of activities on that Supreme Court reference case is just an academic exercise.  If the decision was handed down and nullified the amendments prior to February 2015, it would have made it easier for MPs to move around and lobby for the change of Government. O’Neill’s wishes had been observed favourably by the judiciary, it seems.

Is the judiciary dancing to the music of the O’Neill Government? The judiciary should know better. During the political crises of 2011/2012, they dragged on the cases challenging the constitutional validity of the O’Neill Government’s assumption of power until events had taken over. Their subsequent decision had no bearing and is now a mere reference point.

4.    PATRICK PRUAITCH –V- OMBUDSMAN COMMISSION


This is an age-old frustration of the due process at the active connivance of the judiciary. Mr Pruaitch’s challenge to the leadership tribunal is spanning over man years and terms of governments.

The Supreme Court decisions in SCA NO 74 OF 2011 & SCA NO 86 OF 2011 that appealed National Court decisions had effectively stayed the National Court Proceedings. However nowhere can one find a stay on the Tribunal from proceeding. The Supreme Court (in PRUAITCH V MANEK [2010] PGSC 7; SC1052 (31 MAY 2010)) ruled that Mr Pruaitch and any other leader other than the PM for that matter, should be automatically suspended when the Chief Justice appointed the tribunal. After Justice Kassman dismissed Mr Pruaitch’s proceeding in February this year, there was nothing preventing the Chief Justice from requesting the Tribunal to reconvene.  Few months had lapsed and the Chief Justice has not done so. Is the Chief Justice returning a favour to Pruaitch for lobbying for his appointment when National Alliance was in power? I hope not.

5.    O’NEILL –V- OMBUDSMAN COMMISSION ON UBS LOAN


The Public Prosecutor, a seasoned prosecutor, created some of the most rudimentary blunders when he was deliberating on the OC’s file against PM O’Neill. I am not convinced it is incompetence or negligence. Am more inclined to believe it was designed. Pondros Kaluwin created the escape door for O’Neill to eventually forestall the case in court and they have achieved it.

What is more worrying is the laxity of the judiciary. The judiciary does not seem to care that these are national interest cases and should be prioritised. The judges take their time attending to court circuit trials in other centres while these cases continue drag the interest of the nation.

Say attending to a murder trial in Kimbe is good but the victim is one person. For the cases I have listed above, the victim is the whole nation. I don’t see the logic that these cases cannot be given immediate attention unless someone is colluding with those who have vested interests in the cases. 

AT THE CENTRE OF ALL OF THESE IS THE CHIEF JUSTICE SIR SALAMO INJIA. IS HE NOT TELLING US SOMETHING THAT WE SHOULD KNOW?

Next –Judges, promiscuous lifestyles, and promotions for favours.