THE ROTTEN ADR JUSTICE
I am not revealing my real name because of security reasons but the issues I raise here are true to the best of my knowledge. I was initially engaged to provide some consultancy services to a LNG landowner company. Occasionally, I would attend Court for my client but most of my work is non-court. I am compelled to expose this rot because I feel that Papua New Guineans have to know the frightening level of corruption gripping the judiciary and I believe the information I am providing is among the many salient examples.
My clients had a case before the Court, and the presiding judge, Ambeng Kandakasi, considered this case to be part of a number of legal disputes concerning the PNG LNG so he proceeded to direct all these cases for mediation at the National Court’s Alternative Dispute Resolution (ADR) Track. Justice Kandakasi appointed himself as the Chief Mediator over all these cases. At the ADR track, the issues changed form, from a dispute concerning Infrastructure Development Grants to full scale social mapping and landowner identification. The National Court seized the Department of Petroleum and Energy’s Clan Vetting Project and assumed full responsibility.
One wonders whether Justice Kandakasi or his team of lawyers is capable of undertaking landowner identification studies which are a specialized field for expert anthropologists. And why some complicated legal disputes were all lumped together to be mediated is beyond me. Few years, back, my long time friend, late Peter Donigi used to fight hard to keep these issues out of Kandakasi and died trying.
Prior to my involvement, I understand there was a team led by Judge Kandakasi to the PNG LNG project sites sometime back in 2010/2011. I don’t know the exact taxpayers’ funds used, but I am told it is more than K8million. The team spent 3 weeks in Gobe and did not achieve anything.
Then last year, 2015, the government allocated about K15 million for the landowner identification mediation to be completed. I believe about K7million was released into the National Court trust account managed by (directed by) Kandakasi. The strange thing that happened was that the lawyers engaged by the various clients had to be paid out of those funds for the mediation, not by their clients as is the practice. When my clients asked for me to send an invoice for my services, I declined as I felt really uncomfortable.
Justice Kandakasi and another Engan magistrate by the name of Pupaka, handpicked by Kandakasi, are spearheading this mediation. The State and Exxon Mobil’s interest are represented by the Solicitor General, Faith Barton, who happened to be an incompetent fellow Engan. There seems to be collaboration in the conduct of these cases. For instance, Kandakasi would suggest lawyers for the landowners to propose for consent orders and the solicitor general would willingly agree without raising any issues at all to the detriment of her own clients –the State.
I understand the K7 million was blown up in only one location and they did not even complete identifying the true landowners of that one project area.
When the funds ran out, Kandakasi put on his judge authority and threatened contempt of court if the balance of the funds were not released. Few months back, he hauled the Finance Minister and Finance Secretary into court and threatened them to explain why they should not be put to jail for not releasing the balance of the K15 million (K8m). That was totally improper and abusing his powers for personal gain! But who would dare challenging him? He is the judge. Minister Marape and his secretary explained that the government was having cash flow problems and further there will not be any funds released since Kandakasi himself failed to acquit for the past millions he used for the same failed mediations. That kind of shut him off.
However, Kandakasi went a step further to issue restraining orders against the Department of Petroleum Management from conducting the landowner identification exercise in order to subject the entire landowner identification exercise to his control. When the Government recently announced for a 30 days deadline to complete the landowner identification in reaction to a shutdown notice by the landowners, Kandakasi and all the lawyers who are benefiting from this scam threatened contempt of court against anyone who avoided the mediation team.
I’ve had so many bad feelings about this whole mediation thing conducted by Justice Kandakasi. How could a judge, holding such a high office and already being paid his salary from public funds, appoint himself as the mediator and receives extra reward (mediation fees) on top of his salary? Is this not double dipping? Millions of kina had been spent and nothing had been accomplished though funds had been used up. How do the judge and his bunch of lawyers think that they have the competency to be experts in an anthropological field? Why is the judge abusing his position by interchangeably being a judge and mediator? Isn’t it a breach of confidentiality and amount to bias? In mediation, you allow parties to have candid and unrestricted conversations and the judge as the mediator is privy to all those hence he cannot come back and preside over the same case in court. These questions had bothered me a lot and I scaled down on my involvement with the landowners as the more I knew, the more I got sick of it.
I discussed the issue with an old friend of mine and he pointed me to a Supreme Court ruling that condemned Justice Kandakasi when he was caught committing similar kind of sin. The Supreme Court in the case concerning the Tari Airport styled Mangope v Haba [2015] PGSC 59; SC1459 (28 October 2015) where the Supreme Court had to deal with the issue of whether a Judge should appoint himself as mediator and interchangeably wear two hats –one as a judge and another as a mediator – in determining a particular case.
What precipitated the Supreme Court deliberation was that the same judge nominated himself and another person to be mediators over this case.
The mediation started well, but was incomplete when a number of parties filed notices of motion in the National Court, seeking various orders regarding the future course of the mediation. The Judge mediator decided that he should hear the motions, in Court, to expedite completion of the mediation and the Court proceedings. The Judge made an order endorsing some of the terms of a draft consent order signed by some of the parties, requiring that amongst other things the sum of K736,100.00 be released to the trust account of the lawyers for one of the parties for operational costs connected with the mediation. Some of the plaintiffs appealed against the orders and those who were defendants supported the appeal as the conduct by the judge was totally deplorable, to say the least.
In a unanimous decision upholding the appeal, the Supreme Court made these damning remarks:
“(6) Remarks: A Judge conducting a mediation should refrain from performing a judicial role in the same proceedings. To do so inevitably creates a risk that the Judge will bring to bear, and disclose to the public, in his judicial role, facts and information of which he has acquired knowledge during the mediation. Great caution must be exercised as the Judge might breach the duty of confidentiality pertaining to the mediation.”
Justice Kandakasi, sitting as the National Court, is bound by the decision of the Supreme Court. Contrary to the finding of the Supreme Court, the same Justice Kandakasi appointed himself as the lead mediator of the LNG related mediations. He had issued all manner of interim orders in between, exercising dual functions.
That same friend also told me about a case concerning the Jimi Timber Rights Purchase (TRP) Royalties which are still locked up before Kandakasi’s ADR Court and the judge had used up a substantial portion of that money in the pretext of the mediation. The judge is continuously dragging the case out in the hope of milking more from the poor landowners.
The ADR Track, understandably established for the speedy and less costly resolution of cases, has now turned to be a cash cow for Justice Kandakasi. The Tari Airport case, Jimi TRP and PNG LNG cases are among the few examples where Justice Kandakasi had clearly stepped out of line to personally gain. None of these cases had been a success and the dragging on is costing the poor landowners.
I am told by a bird that Justice Kandakasi was blackmailing the Government with threat of contempt of court recently and bargained for fresh funding purportedly to finish the LNG mediation. In exchange, Prime Minister O’Neill asked for a personal favour. On Wednesday, 28 September, the NEC approved about K8 million for Kandakasi to complete the LNG mediation. In return, Kandakasi made a Court decision favouring O’Neill the next day. At the time of writing this article, I am yet to find out which case Justice Kandakasi ruled in O’Neill’s favour on 29 September 2016. I hope to find that out and publish it in the next article.
The judiciary needs cleaning up and I believe that someone will take notice of this article and investigate this rot.
