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POST ANALYSIS - SUPREME COURT RULES AGAINST PM & MARAPE

by BRYAN KRAMER

This morning the Supreme Court three man bench (3 judges) handed down a unanimous (all in agreement) ruling dismissing Appeal proceedings SC87 of 2014 filed by Minister of Finance James Marape.

Marape filed the SC87 Appeal challenging an earlier ruling of the National Court that refused the Prime Minister Peter O'Neill and Marape's application (request) preventing Police from arresting them in relation to the illegal payments of K71.8 million to Paraka Lawyers.
So what does it all actually mean?

In short, the Supreme Court in the course of the above proceedings issued an interim stay (temporary stop order) preventing Police from arresting Marape and O'Neill including his lawyers and staff until it made a final ruling.

Now that the Supreme Court has ruled against them dismissing the case it means the interim stay order issued in those proceedings have also been discharged (no longer in force).
So can the Prime Minister or Marape file further proceedings?
No. Once an appeal has been determined by a three man bench or more of Supreme Court it is final. They may file a slip rule application but it would serve no effect. However further appeal proceedings are no longer available to them.

Does this mean O'Neill and Marape will be arrested in relation to the illegal payments to Paraka's Lawyers?
In O'Neill's case, No - because the warrant of arrest issued by the District Court against the Prime Minister in relation to the Paraka matter has been stayed (temporary stop order) by the National Court in separate proceedings OS485 and those proceedings have been stayed until the Supreme Court hears an appeal filed challenging the National Court's preliminary ruling allowing Fraud to join as a party. Those Supreme Court proceedings SC7/2016 are still on foot and may take several months before they are determined.

In Marape's case there is no warrant of arrest issued against him in relation to the Paraka matter. So nothing is preventing Fraud from arresting him.
While it all may sound confusing its important to understand that two separate court proceedings were initiated in an effort to stay the warrant of arrest against the Prime Minister.
1) was filed in the National Court filed by Marape. After it refused to stay the warrant Marape challenged the decision in the Supreme Court (proceedings SC87) It stayed any arrest against the Prime Minister and Marape until it first reviewed the decision of the National Court. Today the SC handed down its final ruling upholding the National Court ruling and dismissing Marape's appeal.
2) was filed in the District Court by the then Commissioner of Police Jeffrey Vaki asking the it to withdraw the warrant. After it was refused Vaki challenged the decision in the National Court (NC) proceedings OS485. It stayed the warrant of arrest until it reviewed the decision by the District Court. Before the National Court could review the decision O'Neill filed an appeal before the Supreme Court against it's decision to allow Fraud to join as a party. These proceedings SC7 of 2016 are still on foot.

So what now?

The dismissal of Supreme Court proceedings SC87 today including the preventive orders means the Prime Minister may still be arrested on any other matter other than the Paraka case.
For example Fraud may now apply for a fresh warrant of arrest against him in relation to purchase of the LR Generators. To-date the Deputy Secretary of Treasury Aloysius Hamou has been formally charged in relation that issue and District Court has issued a warrant of arrest against the Secretary Dairi Vele. However O'Neil's lawyer obtained a say against his arrest relying on preventive (stop) orders under SC87. Following today's ruling SC87 orders are no longer in place and no longer a valid argument preventing his arrest. Fraud need only make an appearance before the District Court moving an application to have the stay against the Secretary of Treasury removed.
Further Fraud may also move in and charge Tiffany Twivey and Sam Bonner in relation to the Supreme Court's finding that they could be guilty of perverting the course of justice after colluding to stay the warrant of arrest against Vele.

Up until now both Twivey and Bonner have been protected from arrest under the SC87 orders. Bonner is currently out on bail after being charged in June 2014 in relation to allegations of money laundering in relation to receiving funds from Paraka Lawyers. A person out on bail is prohibited from committing a further indictable (serious) offence thus any additional charges laid against him may result in his bail being revoked.

So will any arrest be made soon?

It depends on the Commissioner of Police Gary Baki right now he is the most powerful person in PNG. O'Neill's political fate rests in his hands. Baki may order O'Neill's arrest or he may abuse his constitutional powers under Section 198 of Constitution directing Fraud not to make any arrest. However to exercise such powers without proper principle example perverting the course of justice may subject himself to arrest.

Will O'Neill's arrest mean he will automatically be removed from office? No, but it may start the political process resulting in his removal through a vote of no-confidence.
Soon after the Supreme Court ruling I received reports O'Neill has beefed up this security detail, concerned about being arrested by Fraud.

In my next article we will discuss options available to Commissioner of Police and the powers of citizens arrest and whether it may apply in this case.
We will also discuss options O'Neill may take to avoid his removal including adjourning Parliament past the 12 months grace period (24 July 2016) and whether Parliament may be reconvened before then.
Interesting times ahead.