This week there has been a number of rulings in the Supreme Court relating to the warrant of arrest against the.Prime Minister Peter O'Neill. I understand many will be confused about the reasons behind the rulings and its effect on whether or not it will ultimately lead to his arrest.
I've decided to post this article to simplify the issues for ordinary Papua New Guineans in an effort to better assist them understand the reasoning behind these decisions and their effect.
There are three main cases currently before the Court that relate to the warrant of arrest against the Prime Minister, two are Supreme Court proceedings SC87/2014 and SC7/2016 and the third the National Court proceedings OS485/2014. The other cases involving Sam Koim and the Prime Minister's (PM's) referral to face the Leadership Tribunal are less significant at this point so I've decided to leave them out of this discussion.
Supreme Court Appeal proceedings SC87 was filed by Minister of Finance James Marape back in August 2014. It was against an earlier National Court decision in July 2014 refusing both the Prime Minister and Marape's application seeking interim orders to stay (stop) Police from arresting them.
At the time Marape was also facing arrest for facilitating the unlawful payments to Paraka Lawyers, he filed National Court proceedings asking the Court to validate (confirm to be legal) the Paraka bills and requested Fraud be prevented from arresting him until proceedings are determined. After the National Court ruled against their application to prevent their arrest, Marape filed an appeal in the Supreme Court to challenge the decision asking the Higher Court to overturn it.
During the course of the Supreme Court proceedings SC87 Marape and O'Neill convinced the Court to grant a temporary stay order preventing their arrest. They claimed they were being harassed and intimidated by Fraud officers and unable to carry-out their official duties. All parties supported Marape and PM's request with no party to oppose it. Once they obtained a stay Marape and PM failed to take any steps to progress their appeal and were happy to have the matter locked up in court. It wasn't until April 2015 Fraud applied and were allowed to join those proceedings as an interested party, seeking to assist the Court by progressing the case for main hearing. It's my opinion that the Supreme Court will ultimately dismiss Marape's entire appeal proceedings and when this happens the temporary stay order preventing the PM's arrest will also be removed.
It's my view the PM and Marape were aware of this risk and appealed the earlier decision of the Supreme Court to allow Fraud to join as a party. They filed an appeal against Supreme Court's single man judge's earlier decision to allow Fraud to join. They sought orders to have them removed arguing they never sought the approval of the Commissioner of Police. Futher alleging that Fraud were acting outside the command of the force and their conduct pursuing criminal matters before the Court without the Commissioner's consent or authority was promoting insubordination within the Force.
Three man bench of the Supreme Court reviewed the earlier decision and ruled against PM, Marape and the Commissioner's finding the Fraud being the lead investigating officers had sufficient interest in the case.
After they failed to sideline Fraud, Commissioner of Police Gary Baki was given instructions to file a further application in an attempt to remove Fraud's lawyers (Jema Lawyers). The Commissioner and the Attorney General (Ano Pala) submitted affidavits that they never approved for Jema Lawyers be engaged to represent Police. They submitted that according to law only the Attorney General (AG) may engage private lawyers to act on behalf of the State and its agencies which included the Police Force. Futher that Fraud's Lawyers had failed obtained approval and thus Jema Lawyers had no authority to appear before the Supreme Court in those proceedings. In reply Fraud lawyers argued the AG agreed to meet the Task Force sweep legal bills including payments to Jema Lawyers and therefore the AG was aware of their engagement. Futher that they were also citizens seeking a civil duty..
Single man judge of Supreme Court Judge Kirriwom refused the application by Commissioner of Police arguing both officers are also citizens and entitled to legal representation.
Following the decision Fraud then filed an objection to competency application asking the Court to dismiss Marape's entire appeal proceedings for abuse of process. Objection to Competency is an application where one party believes the court proceedings filed is incompetent and therefore they object to it being heard and should be dismissed.
The Prime Minister's lawyers also filed an appeal against Judge Kirriwom's earlier decision refusing their earlier application to disqualify Fraud's lawyers.
Supreme Court three man bench heard both applications late last year and this week Wednesday (24/2/16) handed down its ruling. It dismissed Fraud's application on the grounds objection to competency relates to cases that are not properly before the Court. Example where a party failed to comply with the proper procedures or filed under the wrong process. The arguments raised by Fraud lawyers relate to the case having no merits and a waste of the courts time which is not an objection to competency issue.
The three man bench also upheld the Prime Minister's appeal overturning the earlier ruling by Supreme Court Judge Kirriwom. The Court found that Fraud are officers of the state and their interest in the matter was not as ordinary citizens. The Attorney General Act clearly states that AG has the sole discretionary power whether or not to brief out (engage) private lawyers to act on behalf of the State (Govt). The Courts don't have the power to override an Act of Parliament unless it is inconsistent with the Constitution.
So the recent decision of the three man bench of the Supreme Court was correct. The court ordered that Jema Lawyers is prevented from representing Fraud until approval is sought from the AG. It also directed that Fraud officers have 14 days to write to the AG to seek his approval for Jema Lawyers or any other law firm to act for them. The Court also ordered that AG has 14 days to reply to their request.
The Court ruled that Commissioner of Police and the other parties in the proceedings are not seeking to deny Fraud legal representation but that they first obtain approval from the AG in accordance with the law (Attorney General Act).
However what the Court did not consider is that AG stated in his affidavit submitted before Judge Kirriwom was that he had refused the request by Sam Koim to engage Jema Lawyers. He said "I have considered that request. I refused a brief on the basis that the Police Department were already represented by a firm of lawyers under brief-out" In other words he had already approved that Sam Bonner act for the Police. A contentious issue is that Bonner was arrested by Fraud for being involved in the Paraka scandal and accused of laundering funds on behalf of Paraka Lawyers. Bonner was also on record supporting the interest of the PM rather than Fraud.
What was also not taken into consideration is that AG was allegedly appointed by the PM to prevent his arrest. Evidence of this fact is that the AG was recently arrested by Fraud for allegedly perverting the court of justice after he instructed Commissioner of Police to sideline their Police lawyer Nicolas Miviri and replaced him with Paul Mawa and later Sam Bonner to support the PM's application to stay the PM's arrest. AG also sidelined the Solicitor General who normally acts for the State, she initially opposed the PM's application and was replaced with private lawyer Ralph Selup who is a close friend of the PM. Throughout the entire proceedings the AG and the private lawyers he approved to act for the State have all supported the PM's interest instead of Fraud.
While the ruling of the Supreme Court was correct according to law, the law did not take into account the Prime Minister would be an accused criminal who would appoint an Attorney General and Commissioner of Police that would serve his interest in attempting to avoid arrest.
So what now? The Court has no powers to order the AG to approve Jema Lawyers to act for Fraud and may refuse them representation.
There is also the risk the AG may appoint a legal counsel that serves the interest of the PM who will appear on their behalf and seek a further adjournment. A common tactic deployed by mischievous lawyers deliberately seeking to delay proceedings.
Another option for Fraud is represent themselves appear at the final hearing and make their own submissions based on the recent ruling by five man bench of the Supreme Court in Eremas Wartoto case that ruled civil (non-criminal) proceedings may not be used to stay criminal proceedings which is what Marape and PM are seeking.
On a positive note after almost two years the Supreme Court has finally listed the appeal for substantive hearing on 22nd and 23rd of March 2016
Fraud's primary focus has always been to assist the Court have Marape's appeal listed for substantive hearing. A date has now been confirmed its only a matter of course for the Court to consider the arguments and hand down it's final ruling whether to uphold Marape's substantive appeal overturning National Court ruling by Kariko or dismiss the entire proceedings as an abuse of process taking into account the judgement in Eremas Wartoto's case.
Should the Supreme Court rule in Fraud's favour is means the blanket stay order preventing Police from arresting the Prime Minister will be removed and he maybe subject to arrest for any other matters not directly involved with Paraka Lawyers example LR Generators. However the Commissioner of Police may seek to prevent this from happening after issuing a directive that no high-profile arrests my be effected without first obtaining his personal approval.
Part 2 of this article will discuss two other remaining cases, National Court (Judicial Review) proceedings OS 485 filed by Police Commissioner which has stayed the warrant of arrest and the recent the related Supreme Court appeal SC 7/2016. The National Court OS485 was recently listed for full trial on 3 March 2016 however the Prime Minister filed an appeal in the Supreme Court Appeal SC 7/2016 against a decision in those proceedings allowing Fraud to join as a party. The Supreme Court recently issued a stay against the trial going ahead until the appeal is determined. The next article will discuss the issues behind the appeal and possible overall effect on whether PM will be arrested any time soon.
