NATIONAL COURT STAYS BAKI'S DECISION TO TERMINATE ELUH AND GITUA.

BRYAN KRAMER BREAKS DOWN THE HISTORY BEHIND THE DECISION TO TERMINATE TWO SENIOR OFFICERS INVOLVED IN THE ARREST OF PRIME MINISTER O'NIELL

by BRYAN KRAMER
 
While many were jubilant and surprised by the news of National Court's ruling to stay (stop) Commissioner of Police Gary Baki's decision to terminate Assistant Commissioner of Police Thomas Eluh and Deputy Director of National Fraud & Anti-Corruption Directorate Timothy Gitua, for me the ruling was expected.
The Judiciary operates under strict guidelines, rules, procedures and principles all based on several hundred years of precedent (previous court rulings). The judiciary is the branch of government which administers justice according to law. The two other branches are Parliament and the National Executive Council (NEC) made up of Government Ministers and chaired by Prime Minister , also referred to as the Executive Government or Cabinet.

The role of Parliament is to make the laws, while NEC makes executive decisions on behalf of the Government very much like a Board of Directors makes executive decisions on behalf of an organisation they convene; table agenda's and pass resolutions (formal decisions). While the judiciary applies the laws in individual cases. Each branch of government has
its own powers and authority and each branch exercises some power over the other two branches, but no single branch of Government has more authority than another. Under the doctrine (accepted belief) of the separation of powers the judiciary must remain independent from the other two branches of government. This independence is seen as a vital safeguard against corruption and a cornerstone of democracy. By necessity the functions of the parliament and the Executive overlap because they are made up of Members of Parliament, but the judiciary remains independent of both the Parliament and the Executive.
The primary purpose of the Judiciary or Courts is to dispense (apply) justice. What is justice? It is to uphold "fairness" in the "protection of rights" and "punishment of wrongs" through "fair and proper administration of the law."
What is the law? It's formal rules passed by Parliament to define how people and organisations are expected to behave within society or our communities. The three main laws in PNG include Constitution (Supreme Law) Organic Laws, and Acts of Parliament. Organic meaning home grown and originating from our Constitution which is original to PNG. while Acts of Parliament are general laws adopted by the Constitution with lessor authority. Any provision (section) of an Organic Law or Act of Parliament that is in conflict with the Constitution is deemed to be void (wrong) and to no legal effect.
Example; Parliament decided to make an Organic Law to govern and regulate political parties and candidates. It first had to amended the Constitution to authorise the introduction of an Organic Law.
It created a subdivision (H) under the Constitution under the title "Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties." It stated the purpose of the subdivision was namely to protect elections and integrity of political parties from outside (foreign) or hidden influence. To restrict the rights of members to vote against and or resign from their Political Party and to do so in specific circumstances would amount to misconduct in office.

These restrictions ensured stability and the central reason why National Alliance were able to remain in Government from 2002-2011 without facing a vote of no confidence. However they also made it more difficult to ensure accountability or scrutiny over the Executive arm of Government. As long as the ruling Party was able to establish influence over leaders of Political Parties then they controlled how they voted and prevented any dissenting member from leaving their party.

However the law was later challenged by Governor of Western Province who was then a member of the Opposition. The Supreme Court ruled that those amendments to the Constitution restricting and prohibiting the exercise of the right given to Members of Parliament by s 50 (1) (e) of the Constitution were inconsistent with Constitution and therefore of no force and effect.

In 2012 O'Neil Government amended the Section 145 of the Constitution extending the grace period preventing a vote of confidence against against the Prime Minister from 18 to 30 months . In 2013 they made further changes to the notice period for moving a motion of no confidence from 7 to 30 days and increased the minimum required members of parliament to sign the motion from from 11 to 24 members. The amendments were challenged by former Chief Ombudsman Ila Geno and former Opposition Leader Belden Namah. Supreme Court again ruled the amendments by O'Neill Government to be unconstitutional again breaching 50 (1) (e) of the Constitution by restricting the rights of Members of Parliament to vote or be appointed to the position of Prime Minister.

So in summary Parliament passes (makes) or amends laws be it Constitution, Organic Laws or Acts of Parliament and the Courts administer them in specific cases brought before it while the Police uphold and enforce the laws including orders of the Court. Any laws whether Constitutional amendments, Organic Law or Acts of Parliament that are in conflict with the Constitution are deemed invalid.
Police Force was established by operation of law in accordance with the Constitution (Section 188) under State Services.

Section 196 & 197 of the Constitution provide for the control and function of the Police Force. Section 97 states the primary functions of the Police Force in accordance with the Constitutional and Acts of the Parliament is to preserve peace and good order in the country and to maintain, enforce the law in an impartial and objective manner; The provision (section) also provides Police members constitutional powers to lay charges or withdraw them in respect of criminal offences. Further stating that Members of the Police Force are not subject to direction or control by any person outside the Force.

Section 198 of Constitution establishes the office of Commissioner of Police and that he is responsible for the superintendence (management) and control of the Force in accordance with an Act of the Parliament.
Section 195 of Constitution states that Acts of the Parliament may make provision (provide) for structures and organizations of State Services including employment of persons; and the terms and conditions of appointment and employment.

So Parliament passed the Police Act in 1998 to repeal (remove) the former Act, The Police Force Act (Chapter No, 65). The new act was established in accordance with Section 195 of Constitution (Police Force being a State Service) providing for composition and administration of the Force; powers of the Commissioner in accordance with Section 198; discipline of the Force including terms and conditions of employment of it members etc;

The Constitution also provides for the establishment of the Judiciary System and its administration which includes National and Supreme Courts and other lower courts like the District and Village Courts. Section 155 of Constitution confers that both the Supreme and National Court have an inherent power to make orders that are necessary to do justice in the circumstances of a particular case. The Constitution also noted that the National Court has an inherent power to review any decision where, in its opinion, there are overriding considerations of public policy in the special circumstances of a particular case.
So it means the Courts have inherent (constitutional) powers to make orders in their opinion that are necessary to do justice in the circumstances of each case that comes before them. This is because not every case is the same, involving different parties with different issues. It's important to note the Supreme Court ruled that while the Court has inherent powers it can't invoke those powers to override legislation (laws) unless the law in question is unconstitutional or if applied would conflict with constitutional law.
So back to the central issue, the Commissioner of Police Gary Baki terminated ACP for Crime Thomas Eluh and Deputy Director for Fraud Timothy Gitua on the grounds of insubordination. He invoked his powers under Section 27 of the Police Force Act 1998. The provision states that "the Commissioner’s decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final." This is true in relation to the disciplinary process within the Police Force but has no application the moment it comes before the Courts. Although a member of the Force is subject to the Commissioner's direction and control he is also a citizen and afforded the protection under the Constitution that override the powers of the Commissioner especially if those powers are found to be abused.

Eluh was terminated over his outburst, dissent and disrespect following the former Police Commissioner Geoffrey Vaki's decision on 16 June 2014, to sideline Police Lawyer Nicholas Miviri and engage a Private Lawyer Paul Mawa to consent (support) to Prime Minister's application to stay (stop) Police from arresting him on the charge of Official Corruption for his part of allegedly authorizing a series of payments totaling K71.8 million to Paraka Lawyers for fraudulent legal bills.

Vaki was only just appointed to the position the night before the incident by the Prime Minister with the plan to prevent his arrest.
On 16 June 2014 Vaki's walked into a meeting between Deputy Commissioner Simon Kaupa, Eluh and other senior members of the Force. Eluh raised his voice and argued with Vaki over his decision to sideline their lawyer and consent to stay the Prime Minister's arrest.
On 18 June 2014 Vaki was later charged by Director of National Fraud & Anti-corruption for perverting the course of justice by interfering with their case against the Prime Minister.

On 22 June 2014 following his arrest, Vaki issued directives for Eluh's suspension on the grounds he committed an act of insubordination against him as the Acting Police Commissioner. At a press conference Vaki said "he breached the code of ethics and is therefore liable to face normal disciplinary charges under the Police Force Act. We are not operating a tucker shop or private business here, the Constabulary is a disciplinary organization and I am the duly appointed Acting Police Commissioner. No officer below me has the right to challenge my authority.” he said

Eluh is a career officer and his position as ACP of Crimes put him in charge of National Fraud & Anti-corruption Directorate . He is also on record for taking the lead in high profile cases against corrupt government officials and Members of Parliament.

Following his suspension Eluh claimed it was contemptuous and a blatant breach of the police/court process, referring to an earlier order by the National Court Justice Ere Kariko who was yet hear the Prime Minister's application to stay his arrest and directed that the status quo remains. Eluh issued a statement that the Acting Police Commissioner, Geoffrey Vaki, should not in any way have interfered with him or his team of investigators looking into the Paul Paraka until the matter comes before the Court.

On 26 June 2014 four days after Eluh's suspension it was revealed that Vaki had also issued directives to suspend Director of National Fraud & Anti-corruption Directorate Mathew Damaru and Timothy Gitua. However the Chief Ombudsman intervened issuing a letter prevented him from issuing the suspensions. The Ombudsman also released a press statement stating that it was concerned with the recent turn of events that the actions taken by Acting Commissioner had caused doubts, fears and suspicions in the minds of many Papua New Guineas and the international community."

"Many are asking whether the actions are legitimate. For instance, were due processes followed in the appointment’ of the acting Police Commissioner? If so, who initiated it and what was the criteria applied? Who were the candidates proposed, and were they cleared of any pending investigations and or court cases? Where the integrity checks conducted? Did the acting Police Commissioner take Oath of Office? Was he sworn in before exercising the powers of the Police Commissioner culminating in the actions he took?" the commission said in the statement. (source post courier article).

The charges against Vaki for perverting the course of justice was heard in the District Court and later dismissed for lack of evidence. Fraud then referred the file to the Public Prosecutor who, after considering the evidence, invoked his powers to refile the charges directly before the National Court (referred to as an officio indictment) . After Vaki failed to appear before the National Court the Judge issued a bench warrant for his arrest which is still currently pending. It's also important to note Vaki was convicted of contempt of court by the Chief Justice after he failed to enforce the warrant of arrest against the Prime Minister he made a fatal mistake assuming that his power as Commissioner of Police afforded him the right not to enforce the arrest warrant which was essentially a Court Order. Vaki has appealed his conviction, the matter is currently before the Supreme Court.

On 28th September 2015 Gitua was terminated over a disciplinary offence that allegedly occurred on 12 July 2014 at the Amani nightclub in Port Moresby where Gitua is alleged to have assaulted a Chinese national and fired several shots, causing fear and panic amongst members of the public.
On 25th July 2014 following the incident Gitua was charged on three counts of unlawful assault, threatening with a firearm and discharging a firearm in a public place.

Acting Deputy Police Commissioner and Chief of Operations Jim Andrews, appointed by Vaki, issued a statement confirming Gitua's arrest claiming he returned to the night club and paid one-thousand Kina in compensation but it is alleged that some of his colleagues from the National Fraud and anti-corruption unit returned to the club the next day and demanded K10,000 from the club management for injuries allegedly sustained by Gitua. The club management registered the complaint and Mr. Gitua was arrested and charged.
It's important to note both men, Eluh and Gitua have been in the forefront of the current cases pending in court relating to the arrest warrant against Prime Minister. Gitua applied for the warrant from the District Court and both men personally served it on the Prime Minister. However they made the mistake of not effecting Prime Minister's immediate arrest by taking him into custody according to law but instead out of respect of the office he held, kindly asked him to follow them to the Police Headquarters for a formal interview. Prime Minister of course instead demeaned his office and fled to Parliament and hid there until his lawyers could obtain an interim stay preventing his arrest.

On 8 May 2015, the eve Vaki's conviction for Contempt of Court, the Prime Minister met with Gary Baki and agreed to appoint him to replace Vaki as the Commissioner. Following Baki's appointment he removed Eluh's suspension but sought to transfer him to Kokopo to take up the position of ACP of New Guinea Islands, Eluh refused to take up the position. In response Baki then appointed Raphael Huafolo on 29th June 2015 as Acting Deputy Commissioner of Police (Operations) .Huafolo was previously dismissed from the Force by former Commissioner of Police Tomai Kulunga. Following his appoint his first order of business was to suspend Eluh for insubordination for defying the Commissioner's directive.

On 30 July 2015 Eluh then challenged his suspension filing Judicial Review in the National Court . His lawyers, Jema Lawyers also sought restraining orders against further disciplinary actions against him and preventing his transfer to the New Guinea Islands region. The Court initially granted him a stay until the matter returned back to Court on 4 August 2015 when the Court would hear submissions (arguments) whether or not to grant Eluh leave (permission) for judicial review to challenge his suspension.
At the hearing for leave Eluh’s lawyer Greg Egan told the court that the application for leave relied on six main grounds.

Huafolo's appointment to the post of Acting Deputy Commissioner of Police (Operations) breached the Supreme Court order of August 2014 issued in a separate matter and therefore his appointment is unlawful any decision made by him is also unlawful and to no legal effect.

The position was previously held Simon Kauba who was terminated by NEC after his request that the Prime Minister make himself available for interview. Kauba then filed Court proceedings challenging his removal. Justice Collin Makail, sitting as a single Supreme Court Judge, issued the orders that no new appointments would be made to the position of Acting Deputy Commissioner of Police (Operations) until the case of Simon Kauba was fully dealt with by the Court. Eluh's lawyers argued that the appointment of Huafolo as Acting Deputy Commissioner of Police-Operations breached Makail’s orders.

Further that Huafolo was not eligible for re-appointment in this current position as per section 49 of the Police Act as he was not a serving member of the Police Force thus not qualified to an appointment.
Eluh was directed by Commissioner on 16 July 2015 to depart for Kokopo on 22 July 2015. However Huafolo suspended Eluh on 20 July, two days before the direction of July 16 could even come into effect. In other words how can Eluh be charged for defying orders when the condition of the orders being that he depart for Kokopo no later than 22 July, yet he was suspended on 20 July two days before the date of the orders had expired.

Eluh was also not given reasonable time or opportunity to prepare to move both himself and his family to Kokopo pursuant to section 48(5) of the Police Act.

Eluh had intimate knowledge of a number of high profile criminal cases and investigations and it was unreasonable for him to be transferred to a region where he will not be a part of the case investigations.
Ian Molloy representing Commissioner Baki opposed granting Eluh leave (permission) to challenge his suspension. He argued Eluh was suspended for insubordination as per section 20(1) of the Police Act. The suspension was an internal issue of the Police Force and was not subject for a judicial review. Molloy argued Eluh was suspended based on deliberate ignorance on his part to adhere to directives. He said a judicial review sought by Eluh should not be granted as Eluh has other remedies to resort to.

When the matter returned to Court, the Court ruled against granting leave to Eluh to challenge his suspension. Acting judge Leka Nablu said the relief sought was administrative in nature and to grant such an application would only see the court flooded with similar applications.

She said the applicant did not exhaust all available remedies before coming to the court for a judicial review which was the last resort for such administrative matters. She added that Eluh was still at liberty to apply for a judicial review after all other administrative remedies were exhausted within the Police Force. (source png loop reports)

It's my view it was a correct decision because to qualify for Judicial Review where the Court will review a decision against you its important the decision is final and not still under process. In this case Eluh was suspended for insubordination pending investigation and findings against him. The process had yet to be completed, had the Court intervened and in the end findings of the investigations cleared him of the charges then it would have been a waste of the Courts time. So the Court will only review a decision that is final.
In this case Baki knowing that Eluh would have good grounds to challenge his termination for defying his orders to transfer to Kokopo instead dismissed Eluh for charges he was never even suspended for. He terminated Eluh for disciplinary charges relating to his earlier suspension by the former Commissioner Vaki that Baki had already reinstated Eluh for.

Part 2 of this article cover the process of Judicial Review the Courts powers to issue a interim stay and whether Baki is genuine about arresting the Prime Minister as he claims.