ANALYSIS ON GEOFFREY VAKI’S CONVICTION - Part 2
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Bire Kimisopa current Member of Goroka Open, former Minister of Internal Security (Police) and Minister of Justice 2006-2007 |
This is Part 2 of a 5 part series of articles providing an insight into recent National Court’s conviction of the former Commissioner of Police Geoffrey Vaki on two counts of contempt charges for failing to enforce the Warrant of Arrest issued against the Prime Minister Peter O’Neill. Before reading over this article I would first suggest reading Part 1 if you haven’t already done so.
Part 1 discussed the background issues that lead to the District Court issuing the warrant and the efforts by Police to effect the Prime Minister’s arrest on charges of Official Corruption in relation to alleged fraudulent payments of K71.8 million to Paraka Lawyers.
The article concluded at the point where the Prime Minister and Minister of Finance James Marape issued instructions to their lawyers to secure a stay (stop) order against Police from effecting their arrest.
Before continuing from that point I thought it appropriate to first cover a number of other key background issues and events that were overlooked in Part 1. The central issue behind the issuance of warrant of arrest against the Prime Minister relates to fraudulent payments to Paraka Lawyers. Thus I thought it appropriate to first explain the genesis (beginning) of this whole issue to put everything into context.
Paul Paraka is a lawyer and principle owner of Paraka Lawyers. On 19th December 2002, the then Attorney General (AG) or Minister of Justice, the late Francis Damem, briefed-out (engaged) Paraka Lawyers to act for the State (Government) on 56 matters (cases). These were followed by a further 210 matters in 2004, bringing the total briefs to Paraka Lawyers to 267.
The term brief-out is used when a legal firm or lawyer engages another legal firm or lawyer to take up a case on their behalf. This practice is common when the principle lawyer or legal firm lacks any knowledge in particular area of law or they are overwhelmed with existing cases.
Attorney General (AG) is the chief or principle legal advisor (lawyer) of Government providing advice to National Executive Council (NEC) or Cabinet. If a Member of Parliament who is a lawyer by profession and appointed to be Minister of Justice they automatically assume rthe position of Attorney General. As opposed to a Member of Parliament who isn’t a lawyer by profession they are referred to as Minister of Justice.
Example Sir Arnold Amet, Kerenga Kua and Ano Pala are all lawyers by profession when they were appointed the Minister of Justice they were all referred to as Attorney General. Member for Goroka Open Bire Kimisopa was appointed as the Minister in 2006 he was referred to as Minister of Justice. In such instances the Secretary of the Department of Justice assumes the position of Attorney General, principle chief legal advisor to NEC not the Minister of Justice.
Department of Justice or Attorney General’s (AG) Office is the legal department in charge of all legal matters on behalf of the State (Government). Headed by Secretary of Justice who is a lawyer by profession and is in-charge of the two other legal branches of the Department, Offices of Solicitor General and State Solicitor. Solicitor General is a lawyer whose office's primary function is to represent the State on matters before the Courts. While the State Solicitor provides legal advice or opinion on legal or legislative matters including drafting contracts and other legal documents. All contracts involving the Government must be first cleared or vetted by the Office of State Solicitor.
Government has its own qualified legal officers that include Attorney General, State Solicitor, Solicitor General, Public Prosecutor and Public Solicitor. All are paid positions under the Public Service and their officers are fully staffed. An organisation having its own lawyers reduces the cost of engaging private law firms who’s services can be expensive and unnecessary, especially when you already have paid legal officers who can perform the same services.
However there will be instances where the Government will need to seek legal advice outside the Attorney General’s Office. In such cases the Attorney General will brief-out to outside lawyers or legal firms on matters where it has little or no legal knowledge, e.g specialist areas of law such as Environmental Law or Oil & Gas legislation. Or where the AG Office is understaffed and overwhelmed with a backlog of cases against the Government. Any briefs to a private law firm or lawyer must be by formal approval of the Attorney General pursuant to (in accordance with) Attorney General's Act. Their engagement as a service provider to Government must also comply with Finance Management Act.
So in 2002 the then Attorney General late Francis Damem, briefed-out Paraka Lawyers to act for the State. It is unclear what the nature of the cases were or reasons behind it.
On 18th September 2002 the State paid K41.9 million to Paraka lawyers which included K3.9 million that covered a period prior to Paraka Lawyers even being engaged. Between 2003-2006 Paraka Lawyers continued to act for the State on all matters including cases on behalf of the Public Solicitor.
During that period Paraka Lawyers was billing the Government for 100’s of millions of kina for purported legal services carried out on behalf of the State all while the Government had its own lawyers who should have been acting in those matters.
In April 2006 Member for Goroka Open Bire Kimisopa was appointed Minister of Justice, soon after taking office he issued directive to the then Chief Secretary of Somare Government Joshua Kalinoe directing the then Acting Secretary of Finance Department Gabriel Yer to cease all further payments to Paraka Lawyers.
In October 2006 Minister Kimisopa with the endorsement of NEC chaired by Grand Chief Somare terminated all brief-outs to Paraka Lawyers and ordered a Commission of Inquiry in the Department of Finance relating to the substantial payments to the law firm.
On 10th November 2006 Paraka Lawyers filed National Court proceedings, OS 829 of 2006 by way of Judicial Review challenging the decision of Chief Secretary Kalinoe, Acting Secretary of Finance and Treasury ceasing all payments to his firm. The matter came before Justice Hinchliffe, on 17th November 2006, at the initial hearing Paraka Lawyers moved an application for leave for Judicial Review and was also granted the following interim orders.
(1) Leave is granted to Paraka Lawyers for Judicial Review.
(2) The stop-payment directive by Chief Secretary to the Acting Secretary for Finance is stayed (stopped) pending the determination of the substantive Judicial Review.
(3) Secretary of Treasury Simon Tosali identify funds and issue a special warrant for the sum of K6, 499,436.44 to Acting Secretary of Finance Gabriel Yer forthwith, who in turn shall arrange the payments to be made to Paraka Lawyers by or before 1:30pm today, Friday 17th November, 2006.
(4) Further or in the alternative, the Secretary of Finance identify savings/funds and pay Paraka Lawyers all of its outstanding legal fees of K6, 499,436.44 by or before 1:30pm today, Friday 17th November, 2006.
(5) Once the cheque is paid to Paraka Lawyers the other parties namely Chief Secretary, Secretaries of Treasury and Finance and the State are restrained from cancelling or putting a stop-payment to the cheque.
(6) Further still they are restrained from issuing any further stop-payment directives, or from taking any steps whatsoever to frustrate, or delay or cease payment in legal fees owing to Paraka Lawyers upon the necessary clearance by the Attorney General, pending the determination of the substantive judicial review.
(7) Secretaries of Treasury & Finance shall pay the Parka Lawyers out of monies lawfully available any subsequent legal fees of the Paraka Lawyers that have been or may be sent to them by the Attorney General pending determination of the substantive judicial review.
(8) Minister for Justice and Attorney General be restrained from issuing any directives, or any form of advise whatsoever to the Secretaries of Treasury & Finance for the purposes of stopping, frustrating or delaying or ceasing payments of legal fees owing to Paraka Lawyers legal firm pending determination of the substantive judicial review.
(9) Lastly that the parties appear before the Court at 1:30pm today, Friday 17th November, 2006 to advise the Court of the compliance to Orders in paragraph 3 and 4 herein and for further directions.
On the same day of the above orders were granted, Attorney General's office quickly filed an appeal kin Supreme Court and obtained a stay against Justice Hinchliffe’s orders.
The decision by National Court Judge was not only unprecedented and bizarre it was fundamentally flawed. In all the case laws (past case court judgements) I have read I have never come across such a peculiar ruling.
If you take a person to Court who owes you a substantial amount of money the substantive matter is for the Court to hear the evidence and arguments to determine whether or not you are owed the monies as you claim. The substantive relief is an order of the Court that you be paid. The Court will only grant such orders when it is has established the facts (truth) and satisfied the relief (orders) you seek is just in the circumstances of your case.
The Court will never grant you a substantive relief until it’s determined the facts by first conducting a trial to hear the evidence and establish the facts by both parties. Or where other party fails to defend the case, the Court may order a default judgement in your favour.
During the course of the proceedings the Court may typically grant interim orders to assist the Court in dealing with a case. Examples are stay or injunctive order prohibiting one party from taking any further action until the Court has made a determination or made a substantive ruling.
To grant a substantive relief before first conducting a proper trial to establish the facts would be an abuse of natural justice because the other party has yet to be heard or present their case.
Where a Court makes a ruling against you whether interlocutory (interim) or substantive you may appeal (challenge) the decision in Supreme Court (higher court). While the matter is still before the Supreme Court you may move or make an application to stay the National Court interim orders until the Supreme Court makes a ruling on your appeal to confirm whether it was proper and just.
To the ordinary person it may sound all too exhausting and a time consuming process, that’s because it is. It’s where lawyers make their money dragging out cases thus providing opportunity to keep billing their clients. Hence why large corporations can drag out a case for years filing application after application, appeal after appeal until the other party goes broke in the process and forced to abandon their case.
Back on point, so in this case Paraka Lawyers filed court proceedings OS 829 of 2006 by way Judicial Review against the decision to cease payments to its firm for legal services performed on behalf of the State. The substantive relief sought being that they be paid all of its outstanding legal fees totalling K6, 499,436.44.
At the initial hearing before Justice Hinchliffe, Paraka Lawyers somehow obtained substantive orders that the Government pay them K6.49 million even before the Court had yet to determine whether or not Paraka Lawyers were even entitled to be paid. Further still the orders directed both Secretaries of Treasury and Finance to pay Paraka by 1:30pm the same day the orders were given.
Imagine attending preliminary hearing in Court in the morning and then ordered to pay the other party K6.9m by 1:30pm that same day without even being afforded the opportunity to present your defence against the claim. After reading the orders by Hinchliffe it is clear Paraka Lawyers prepared those orders with the intent to ensure he was paid forthwith.
Fortunately Minister of Justice and Chief Secretary acted quickly to file an appeal and stayed the orders. With the matter locked up in the Supreme Court Paraka Lawyers then filed a second proceedings OS 876 of 2006 on 29th November 2006 using it to challenge the decision of Minister of Justice Bire Kimisopa and NEC to terminate all briefs to Paraka Lawyers.
The matter came before the same Judge Hinchliffe on 14th December 2006. Judge again granted Paraka Lawyers leave for Judicial Review and issued the following substantive orders on 2nd March 2007 that:
(1) Secretary of for Treasury forthwith upon receipt of this Order identify funds and release a special warrant for the sum of K6.4 million to the Secretary for Finance (Mr. Gabriel Yer) who shall arrange for a cheque for the same amount to be made payable to Paul Paraka Lawyers by or before 3:00pm today, 2nd March 2007.
(2) Bank of Papua New Guinea, through Mr. Ezekiel Bangin, Manager (Governor Accounts) clear the Department of Finance cheque once issued and have the appropriate Bank warrant issued immediately to the Bank of South Pacific, Port Moresby by 3:00pm today, 2nd March, 2007, to be credited to the Paraka Lawyers Bank Account.
(3) Bank of Papua New Guinea disregard any stop-payment directive either verbally or in writing from any officers of the Department of Finance including the Secretary for Finance and comply with the Orders set out in paragraph 2 herein forthwith.
(4) Secretaries for Finance (Mr. Gabriel Yer) or any Officer acting in his place and Treasury (Mr. Simon Tosali) and Mr. Ezekiel Bangin of the Bank of Papua New Guinea appear before the Court at 3:45pm today, 2nd March, 2007 to advise the Court of the compliance of the Court Orders."
The following day on 3rd March 2007, the State again filed an appeal, SCM No. 3 of 2007 and stayed the orders of Hincliffe J.
The second effort by the Paraka Lawyers to extort funds from the State using Court orders was prevented by the quick actions of Minister of Justice Bire Kimisopa. With both proceedings now locked up in the Supreme Court the then Prime Minister Grand Chief Somare appointed Commission of Inquiry into the Department of Finance on concerns as of rampant corruption and misuse of billions of kina in public funds.
To think this is only the beginning…… To be Continued Part 3.
PART 1
