What is happening to OS (JR) No 485 of 2014? Why is there an undue holdup?

by PETER BALOS

The newly NEC appointed Police Commissioner Gari Baki says that he is awaiting “…the decision of the Supreme Court on Prime Minister Peter O’Neill’s case before he decides on what action to take.”. People of PNG, the question we should ask is: ‘Which Supreme Court (SC) case regarding Mr. O’Neill is Baki adverting to?’ Let me clarify what appears to be wilful misinformation by Baki to confuse the bulk (of us) and delude us into thinking that there is a SC case regarding O’Neill currently afoot.

The Reality

On 12 June 2014, the Port Moresby District Court constituted by her Worship Chief Magistrate Nerrie Eliakim, on application, issued a warrant of arrest against the incumbent PM pursuant to section 8 of the Arrest Act 1977. The National Fraud and Anti-Corruption Squad (Police) and Investigation Task Force Sweep accused that PM engaged himself in official corruption, viz., issued direction to the then Finance Secretary Steven Gibson that remarkably excessive sum of money (PGK7.1 million) was dishonestly and unjustifiably paid to Paul Paraka Lawyers allegedly under the costume of legal bills for State’s case brief outs, thereby contravening section 87(2) of the Criminal Code Act 1974.

On 16 June 2014, the irked PM terminated Sir Toami Kulunga from Police Commissioner’s post and appointed Geoffrey Vaki as Acting Police Commissioner. 1 July 2014,the latter was confirmed the permanent position.

On 14 July 2014, Vaki and O’Neill ran to the National Court (NC) and commenced Judicial Review (JR) proceeding by way of Originating Summons (OS) to review her Worship Eliakim’s decision dated 12 June. The file reference number created was OS (JR) No: 485 of 2014 and it was before his Honor Justice Les Gavara-Nanu.

On 31 July 2014, Justice Gavara-Nanu raised six Constitutional questions and referred them to the SC under section 18(2) of the Constitution for its interpretative opinion. The resultant SC file reference number created was SC Ref No 2 of 2014.

On 2 October 2014, the five-man SC bench consisted of Justices David Cannings, Colin Makail, Don Sawong, Goodwin Poole and Lawrence Kangwia pronounced their verdict and returned the matter to the NC constituted by his Honor Justice Gavara-nanu.

The SC basically gave standing to Vaki to challenge the decision of her Worship Eliakim. But the Court clearly stated that Police Commissioner or any other member of the Police Force has power under Section 197(2) of the Constitution to direct or control another member of the Police Force from executing a warrant of arrest issued by a court of competent jurisdiction.

The Status Quo

Currently, it has been a long time that the NC is prolonging this case. We, the people of PNG, fail to know why it is taking this too long. Is it the case that the parties are not pursing this case? Even then, the NC should issue necessary orders to speed up the case. The courts must not operate in isolation. As they are people’s courts, they must efficiently and effectively manage cases and respond to people’s aspirations and interest. In that respect, due concession and priority must be given to certain cases of special nature and overwhelming public anxiety and interest, like this PM’s case. Why undue holdup in/by the Judiciary? Judiciary has a moral duty to explain why this high profile case is being held-up. Reasonable delay is justifiable. But, in the words of learned Author Edmund M. Morgan, a “(p)rompt decision on the merits is imperative, for justice delayed is often justice denied. Sometimes wrong decision made earlier is better than a right decision made after undue procrastination.”. As his Honor Justice Sawong J. emphasized this in Pipoi v Seravo [2001] N2120, unreasonable delay in the administration of justice denies justice, diminishes the quality of judgement, or even results in decision that could not have been reached if it was reached earlier. His Honor said:

“Delay reduces to quality of justice. Indeed justice delayed is justice denied. Witnesses disappear, witnesses die, memories fade, and documents get lost. A claim which will fail if brought promptly might succeed to twenty (20) years later when key witnesses are dead and vital documents lost. Conversely a claim which would succeed if brought promptly might fail if brought many years later. Most countries prevent stale cases being brought by statute of limitations.”.

With due respect, I feel that the delay by NC in regards to OS (JR) No 485 of 2014 is by now undue.
Baki’s falsehood

Respectfully speaking, Baki must stop starting confusing the people of PNG. If he was not in PNG and does not know, then the onus is on him to first get his common/primary facts right. Enough of media talking! In fact, media talking is unnecessary and unwanted. It only amounts to media propaganda. People of PNG are observant, just take the acquired action. Positive words are not positive actions that the very words may speak of. Positive words are not wanted. Positive actions are wanted. And no paper bullshitting!