HAPPY 32nd INDEPENDENCE PEOPLE...MAKE IT COUNT!
Sunday, September 16, 2007
Application for judicial review rejected
So I’ve been a little slow with the updating but as you all know by now, Somare’s attempt to have a judicial review of the DF Tribunal has been thrown out by the National Court. Heck, apparently Somare was not even a legitimate party in the proceedings. This means the Court has found that there is no reason to proceed as on the basis of the information available…(did Justice Sakora eventually get a copy of the Moti Report?)… no grounds for judicial review have been established. Let’s state that again: there is insufficient evidence that the Tribunal and its members were biased.
Where does that leave the whole Moti issue?
Well it means the report as a result of a procedurally proper and unbiased Tribunal must be tabled in parliament unless the Minister of Defence finds that it is not in the best interest of the public to do so. Right now I cannot think of a reason why it would be in PNG’s best interest to withhold the report, further, I can not think how effective it would be to block a report that is already publicly available. What I do think is important, in the public’s best interest and effective is for the Minister of Defence, in following the laws of PNG, to table the report whilst symbolically illustrating that no one is above the law, not even the Prime Minister of PNG.
What the Court decision also means for Somare is that the DPP and the Ombudsmen Commission must now take up the recommendations of the Tribunal as per s28(2) of the Constitution and investigate Somare for breaches of the Criminal Code and the leadership code contained in the Constitution. Recommendations against other named persons must also be taken up.
However, already the Defence Minister has indicated that he has no plans to table the Moti report because, “that report is very controversial and I do not want to do any thing with it.” In typical PNG style when something gets too difficult, too challenging, too long-winded, possibly dangerous for one’s self-interest we drop the damn thing and no one exemplifies this trait better than our pollies- even when it means contravening the laws of this country.
If the Minister of Defence does not act and the DPP and Ombudsmen Commission ignore the matter then this could end up just another forgotten issue of corruption. We cannot afford this. We must rally for the tabling of the Moti Report and for investigations into Somare and others during which time Somare should be suspended from office as per s142(6)(a) of the Constitution.
I am awaiting Monday’s news reports to tell us what the appropriate authorities are planning to do from here and what civil society in PNG will/can/should do from there.
Before I end I must thank God that PNG's judicial system is still strong, independent and just. There is hope yet. It's when the judiciary goes that we're pretty much f&*^$d.
Where does that leave the whole Moti issue?
Well it means the report as a result of a procedurally proper and unbiased Tribunal must be tabled in parliament unless the Minister of Defence finds that it is not in the best interest of the public to do so. Right now I cannot think of a reason why it would be in PNG’s best interest to withhold the report, further, I can not think how effective it would be to block a report that is already publicly available. What I do think is important, in the public’s best interest and effective is for the Minister of Defence, in following the laws of PNG, to table the report whilst symbolically illustrating that no one is above the law, not even the Prime Minister of PNG.
What the Court decision also means for Somare is that the DPP and the Ombudsmen Commission must now take up the recommendations of the Tribunal as per s28(2) of the Constitution and investigate Somare for breaches of the Criminal Code and the leadership code contained in the Constitution. Recommendations against other named persons must also be taken up.
However, already the Defence Minister has indicated that he has no plans to table the Moti report because, “that report is very controversial and I do not want to do any thing with it.” In typical PNG style when something gets too difficult, too challenging, too long-winded, possibly dangerous for one’s self-interest we drop the damn thing and no one exemplifies this trait better than our pollies- even when it means contravening the laws of this country.
If the Minister of Defence does not act and the DPP and Ombudsmen Commission ignore the matter then this could end up just another forgotten issue of corruption. We cannot afford this. We must rally for the tabling of the Moti Report and for investigations into Somare and others during which time Somare should be suspended from office as per s142(6)(a) of the Constitution.
I am awaiting Monday’s news reports to tell us what the appropriate authorities are planning to do from here and what civil society in PNG will/can/should do from there.
Before I end I must thank God that PNG's judicial system is still strong, independent and just. There is hope yet. It's when the judiciary goes that we're pretty much f&*^$d.
Wednesday, September 12, 2007
Keep it alive and make it right
K700 million missing from the Treasury and no one says anything really. (I'll be glad for more info on this if anyone is in the know)
The Sandline Inquiry is floating about (PNGscape News Board) but who really cares anyway...i mean Chan had a convincing win.
Again the same old same old with PNG and corruption. "We ignore it/accept is as part of PNG and life (bulk of the population)/blame anyone but the people responsible, preferably the Aussies- not just for their part of it but for the entirety of the problem/get in amongst it/talk, talk and talk about it some more- well hey look who’s talking (I try)/ try to fight it but fail (cast your mind to UPNG student demonstrations 2001)/ try and keep on trying and trying (NGOs)…what a choice eh."
Independence is around the corner and I think it is about time that PNG and PNGeans made a commitment to themselves and to their country to care even when it seems hopeless, even when it seems that there is really no point. To send a message out there to all those at the top that someone out there is watching them and WILL hold them accountable for their actions even if holding them accountable amounts to very little.
The most effective way to change the whole culture of corruption in PNG is to work from the top down. Ideology is a solution that can only be successful if once the incubated are out in the real world, their society emphasis and maintains the values they have been instilled with. I can only hope that no one will let the Moti issue die until a final and just resolution is reached. Let's make this the symbolic case that indicates a change in the tide for PNG and its attitude towards corruption. Keep it alive and make it right.
It's 31 years since Papua New Guinea got independence.
Up until today, nothing much has been achieved. I still eat kaukau and drink cold water from the bamboo.
I walked many miles to catch the next donkey to get into town. While in town, intimidated by street boys and robbed of my only K5 meant for a packet of rice and a can of fish.
On my way back home, gun wielding criminals threatened and robbed me of my only clothes.
At home my wife is in labour.
No nearby aid post, we had to transport her on a stretcher miles into the nearby clinic.
Upon arrival told that the medicines were run out or I have to pay a fee up front first. While waiting she dies.
The story goes on. Good leaders of this great nation — When will I see electricity into my kunai house? When will I see a road into my village? When will tribal fighting stop in my village?
It's 30 years since independence and I haven't seen any real development taken place yet.
What I read every day in the news- papers are the stories of corrupt politicians misusing public funds, travelled overseas on regular basis, passed parliament bills to suit their own interests, appoint their own political wantoks to head government offices, deals under the table for exploiting of our resources by foreign companies, etc.
Leaders, whose country are you destroying and whose interests are you serving?
You must know in you heart that you are representing the interests of the country, not yours.
Always do what is right to protect the interests of the country and its people.
If it means to sacrifice your own life, please go to the extreme. You can go to another country for medical treatment if you are sick.
But when you die, your body will never leave the shores of Papua New Guinea to be buried in another country. You can change your face by plastic surgery. You can change your skin colour. You can change your appearance.
You can do anything to your body as long as you don't want to be called a Papua New Guinean or recognised as one. But remember, blood is thicker than water.
Deep in your heart you will still know that you are a Papua New Guinean by birth. Leaders of this beloved country of Papua New Guinea, I'll die rather than live to see you destroy our beautiful country.
– Lucas Kiap
UNITECH, Lae
On the side: And again the Post is caught out with its unsubstantiated reports. As I thought. It seriously needs to lift its game, PNGeans are again driven into a tight corner, here where they have no choice but to 'support' The National while its owners plunder our forests in the background.
The Sandline Inquiry is floating about (PNGscape News Board) but who really cares anyway...i mean Chan had a convincing win.
Again the same old same old with PNG and corruption. "We ignore it/accept is as part of PNG and life (bulk of the population)/blame anyone but the people responsible, preferably the Aussies- not just for their part of it but for the entirety of the problem/get in amongst it/talk, talk and talk about it some more- well hey look who’s talking (I try)/ try to fight it but fail (cast your mind to UPNG student demonstrations 2001)/ try and keep on trying and trying (NGOs)…what a choice eh."
Independence is around the corner and I think it is about time that PNG and PNGeans made a commitment to themselves and to their country to care even when it seems hopeless, even when it seems that there is really no point. To send a message out there to all those at the top that someone out there is watching them and WILL hold them accountable for their actions even if holding them accountable amounts to very little.
The most effective way to change the whole culture of corruption in PNG is to work from the top down. Ideology is a solution that can only be successful if once the incubated are out in the real world, their society emphasis and maintains the values they have been instilled with. I can only hope that no one will let the Moti issue die until a final and just resolution is reached. Let's make this the symbolic case that indicates a change in the tide for PNG and its attitude towards corruption. Keep it alive and make it right.
It's 31 years since Papua New Guinea got independence.
Up until today, nothing much has been achieved. I still eat kaukau and drink cold water from the bamboo.
I walked many miles to catch the next donkey to get into town. While in town, intimidated by street boys and robbed of my only K5 meant for a packet of rice and a can of fish.
On my way back home, gun wielding criminals threatened and robbed me of my only clothes.
At home my wife is in labour.
No nearby aid post, we had to transport her on a stretcher miles into the nearby clinic.
Upon arrival told that the medicines were run out or I have to pay a fee up front first. While waiting she dies.
The story goes on. Good leaders of this great nation — When will I see electricity into my kunai house? When will I see a road into my village? When will tribal fighting stop in my village?
It's 30 years since independence and I haven't seen any real development taken place yet.
What I read every day in the news- papers are the stories of corrupt politicians misusing public funds, travelled overseas on regular basis, passed parliament bills to suit their own interests, appoint their own political wantoks to head government offices, deals under the table for exploiting of our resources by foreign companies, etc.
Leaders, whose country are you destroying and whose interests are you serving?
You must know in you heart that you are representing the interests of the country, not yours.
Always do what is right to protect the interests of the country and its people.
If it means to sacrifice your own life, please go to the extreme. You can go to another country for medical treatment if you are sick.
But when you die, your body will never leave the shores of Papua New Guinea to be buried in another country. You can change your face by plastic surgery. You can change your skin colour. You can change your appearance.
You can do anything to your body as long as you don't want to be called a Papua New Guinean or recognised as one. But remember, blood is thicker than water.
Deep in your heart you will still know that you are a Papua New Guinean by birth. Leaders of this beloved country of Papua New Guinea, I'll die rather than live to see you destroy our beautiful country.
– Lucas Kiap
UNITECH, Lae
On the side: And again the Post is caught out with its unsubstantiated reports. As I thought. It seriously needs to lift its game, PNGeans are again driven into a tight corner, here where they have no choice but to 'support' The National while its owners plunder our forests in the background.
Wednesday, September 5, 2007
The Moti Affair
Read my first post and you will understand why this issue in nowhere near done nor should it be considered so.
I don’t wish to address why Moti was being pursued by Australia 6 whole years after the dismissal of his case in Vanuatu (though a ‘new’ application has been pending in the Vanuatuan Supreme Court since 1999), nor the claims of a witch-hunt, nor whether a re-trial of Moti under the Australian judicial system could amount to double jeopardy.
What I wish to address is Papua New Guinea’s role in all this, in particular Somare’s role in the Moti affair and why his actions were at the least, so very very unnecessary. I will attempt not to enter into speculation (a paragraph with forewarning) on whether or not Somare sanctioned Moti’s escape aboard a PNGDF aircraft but I will analyse the illegality of his actions surrounding the aftermath of the Moti escape.
Contrary to some claims floating about on the net and to Somare’s own statement on the 15th of November 2006, Moti was arrested under PNG’s 2005 Extradition Act (“The Act”) not the 1975 one. The Act was implemented as a direct result of PNG’s membership of the Pacific Islands Forum and its signatory status to the Pacific Island Forum Commitment to Fight Transnational Crime, Money Laundering, Human and Drug Smuggling. The Act stipulates that extradition of nationals of Forum countries (Pacific Islands Forum) is to be processed under a different manner to that of nationals of non-Forum countries. The most significant difference between these processes being that the former is a purely judicial process while the latter allows for political involvement.
Moti as a national of a Forum country (Australia) was arrested on a provisional warrant as per section 10 (s.10) of The Act. Under s.10 an application for a provisional warrant is made on behalf of a Pacific Forum country and the Magistrate is told in an affidavit that the original warrant is in the Forum country and that the person named (who is in PNG or about to enter PNG) is the same as that named in the original warrant; and the Magistrate believes that it is reasonable to issue a warrant then they must issue the warrant. (Here I’m ignoring Somare’s ill-made claims that the same Magistrate cannot issue a warrant and hear the case- remember they’re assumed to be objective 3rd parties).
Now understandably there is confusion as to how Moti was arrested so here is a timeline on agreed facts to clear things up and again I’m only interested in PNG’s role in all this:
2006
· August: Australia puts a request out to Interpol for the arrest of Moti
· Interpol proceeds to send out a red alert to all its member countries for the apprehension and detention of Moti, including to the Pacific Transnational Crime Coordination Centre (PTCCC) in Fiji of which PNG is a member.
· September 28th: PNG Police receive the red alert from the PTCCC and also receive a request from Australia for a provisional warrant of arrest to be issued on their behalf by PNG officials for Moti’s arrest.
· September 29th: The Transnational Crime Unit of the PNG Police Force arrest Moti at Jacksons Airport at 5:30am on the info they’ve received from the PTCCC and the Australian request. There is no warrant for the arrest. It is unclear whether the arrest was made under s.3 of the Arrest Act 1977, which allows for arrests without a warrant.
· September 29th: According to Somare’s statement on 15th November 2006 a warrant of arrest is issued by the Waigani Committal Courts at 9:30am. What exactly the warrant of arrest was for (what crime) is unclear. Somare also mentions that an application for a warrant under the 1975 Extradition Act was made. Whether the warrant issued at 9:30am was under the old extradition act or whether Somare was referring to the provisional warrant issued the next day is also unclear. (Anyone who knows for sure the details of this apparent warrant please inform me)
· September 29th: Moti is released on bail
· September 30th: The Public Prosecutor obtains a provisional warrant of arrest under s.10 of the 2005 Extradition Act. Moti has failed to appear at the Waigani Committal Court, the Court then revokes bail and sets the date for proceedings a surrender warrant (ss.15-21 of The Act) on Monday the 2nd of October.
Moti never fronts, instead Moti has fled to the Solomons Embassy whereupon he was airlifted to the safety of the Solomons aboard a PNGDF aircraft.
Now so far the only place PNG may have gone wrong is with the arrest of Moti at Jacksons Airport. It’s unclear under what acts/laws he was arrested, however, if there was illegality here Moti could’ve easily contested the matter in Court …but he didn’t stick around did he.
Where PNG really goes wrong is with that wretched PNGDF flight out of PNG.
The thing is, it was all so very unnecessary. Prominent sources (yes, I have them) have suggested that Moti would’ve succeeded if he had been tried in PNG because at the time there was considerable ambiguity surrounding the 2005 Extradition Act and the implementation of its protocols. Jurisdictional issues would’ve been argued, including dual criminality and double jeopardy (if proven, both expressly prohibit extradition under the The Act). Moti as a QC would’ve known his chances were pretty good, hell he could’ve represented himself and flown Air Niugini to the Solomons, instead he escaped kanaka style because prominent Pacific Islanders are apparently above the law.
Here’s where I speculate a little…
If some of you out there still doubt whether the airlift was a PNG Government initiative then I advise you to crawl out of the rock you are under and join the real world. I appreciate the matter is before the Courts but everyone knows the orders had to have come from somewhere around the top, and let’s face it, with Somare’s hawk-like hold on PNG nothing of that extent would have occurred without at the least his knowledge and just a little above that his consent- express or otherwise; and as has been concluded by the Moti Inquiry all the evidence points at Somare’s express consent. Somare by sanctioning a PNGDF aircraft made his little dalliance with Moti an official executive action of the Government of Papua New Guinea.
End of speculation…
But let’s uphold the Constitution of PNG and state that Somare is innocent until proven guilty by a Court of law. However, this does not belittle the Defence Force Board of Inquiry in any way, as the conduction of an Inquiry into office-holders of the State is itself contained in s.28(1)(g) of the PNG Constitution. In fact s.28(2) of the Constitution states that where an independent tribunal has made recommendations, the appropriate authority shall act in accordance with the recommendation. In this case, the recommendations of the Moti Inquiry should be taken up by the authorities named; including the Ombudsmen Commission and the Department of Public Prosecutions who the Inquiry recommends investigate what it believes are violations of the leadership code (s.28 of the Constitution) and various criminal conduct (perverting the course of justice, conspiring to defeat justice…) executed by the Prime Minister of Papua New Guinea, Sir Michael Somare.
Now, it’s about here where things get a little heated, because apparently the Grand Chief is truly the Grand Chief of PNG so he can pretty much do whatever he wants. You’ll notice in a statement released by Somare on the 15th of November 2006 he was quick to point out the alleged illegality of Moti’s arrest and attempts to protect Moti’s rights under PNG’s Constitution, when the issue at hand was Moti’s escape NOT his arrest (attempting to distract much?). Yet, Somare himself has no qualms with ignoring and plain violating the Constitution and laws of PNG when he feels the need.
Setting aside the fact that Somare may have ordered the Moti escape, let’s look at his various other indiscretions including his violation of all forms of law:
1. Stating that PNG would let Moti walk prior to any Court hearing when the 2005 Extradition Act clearly states that extradition of Forum nationals is a purely judicial process, this could be seen as unconstitutional as it illustrates executive interference in judicial powers (separation of powers).
2. Arbitrarily sacking the Defence Minister (Ani) for apparently failing to request an extension of time for the Defence Board of Inquiry. Under s.3 of the Defence (Boards of Inquiry) Regulation 1978, the convening of a General Board of Inquiry (such as the Moti Inquiry) is done by the Minister of Defence and decisions pertaining to extension of the Inquiry’s duration is also up to the Minister as per s.2(3). Mr Ani did not need the PM’s express approval to extend the duration of the tribunal and as such the PM had no valid reason to sack Mr Ani and by doing so (for the reasons stated), Somare is probably in breach of the leadership code of conduct contained in the Constitution, particularly of s.27(1) of the Constitution which includes at part (c ): allow(ing) his public or official integrity, or his personal integrity, to be called into question.
3. In sacking Mr Ani the PM was also in breach of s.144 of the Constitution which requires that for a Minister to be dismissed: a motion of no confidence is to be passed against the Minister and that either the Head of State sack him on the PM’s advice or that he is sacked for a violation of the leadership code. This procedure was not followed.
4. Somare assumed the powers of the Ministry of Defence and made executive decisions about the Defence Force Board of Inquiry when clearly there is a conflict of interest (he is under investigation); this is a breach of s.27(1)(a) of the Constitution which states that the PM may not: place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties.
5. Failing to make the Moti Inquiry public and threatening contempt of court for its publication. Under s.17 of the Commissions of Inquiry Act 1951 an Inquiry report must be tabled in parliament unless it is deemed to be in the public’s best interest to withhold publication. As there is no equivalent of s.17 in the Defence Force (Board of Inquiries) Regulation, we must assume that something of a similar nature is applicable as s.51 of the Defence Act 1974 refers to Regulation of Defence Force Boards of Inquiries incorporating the provisions of the Commissions of Inquiry Act. In this light, I fail to see how an action that would not be in Somare’s best interest equates to not being in the public’s best interest too. Yes he may be the Grand Chief but we also have a democracy in this country. The law is clear here and Somare has violated it by stalling the Moti Report’s publication- even before his Court case was pending. Again Somare is in breach of the leadership code.
6. Bringing an action against members of the Defence Board of Inquiry. Somare has clearly on some legal advice on the finer points of law (thanks Mr Kua) weaselled his way around to bring an action against the Tribunal who under the proper process of the law would have been protected.
S.18 of the Defence Force (Board of Inquiry) Regulation states:
where the Minister consents to the publication of a report of a Board, no action or proceeding in respect of the publishing of that report may be brought against–
(a) the State or its agents or servants; or
(b) a Minister; or
(c) a member of the Board.
Somare deliberately fired Mr Ani so he, with the powers of the Minister of Defence, could sit on the Inquiry’s Report, halt it from publication (illegally) and then bring an action against the Members of the Board. What a laugh…or real cleverness…or plain treachery, whichever way you look at it. What happened to judicial immunity and/or its equivalent?
Let me break it down real slow…
Somare sacked the Minister of Defence because he did not want the appropriate authorities, including the Ombudsmen Commission to follow the Inquiry’s recommendations as required by law, which could see him suspended while the investigations were pending (s.142(6)(a) of the Constitution) and at worst dismissed from his office if found guilty at trial. Now why would the Grand Chief let go of such a Grand Title?
In order to get his way Somare knew he had to stop the Inquiry’s Report from getting out. How does one do that? By halting publication of the Report and on that technicality bringing a case against the members of the Inquiry.
Apparently the Inquiry was biased. Well why didn’t Somare and his lawyer bring that up during the Inquiry? Instead Somare waited until the evidence implicated him before he took the law into his own hands to protect his own backside.
If the proper legal procedures were followed the Minister of Defence would’ve been Mr Ani and the Inquiry’s report would’ve been published. The members of the Board of Inquiry would’ve been protected from court action and the appropriate authorities would’ve taken up the recommendations of the Inquiry. The Ombudsmen Commission and the DPP would’ve investigated Somare and he would’ve then had the chance to dismiss the evidentiary value of the Inquiry Report on the same grounds he is brandishing about in Court now. In that scenario, if Somare succeeded the Inquiry Report would’ve been thrown out and the case proceed on other evidence or if there was insufficient evidence, the case dismissed. You see there was always legal redress available for Somare the proper way; he just didn’t fancy the proper way.
Somare has preferred the short cut route because it keeps him in power for just that little while longer (god forbid a suspension) and of course he may have apprehended the possibility of the Ombudsmen Commission and the DPP finding him guilty of misconduct and violations of the Criminal Code. And his actions show that apparently he could not possibly risk that. The actions of a guilty man? We may never know, because this man has duped and continues to dupe PNG.
Regardless of the Board of Inquiry Report recommendations the Ombudsmen Commission is still able to investigate Somare for breaches of the leadership code pertaining to his dismissal of the Defence Minister (Ani) and his assumption of the Defence Powers regarding the Board of Inquiry. I would encourage the Ombudsmen Commission to do so and for PNG’s general public to encourage the Ombudsmen Commission to do so too. No one is above the law no matter what niceties you put in front of your name.
For a similar style article regarding the breach of Solomon Islands laws in the whole Moti Affair check this out (Dated Friday May 25th): http://biukili.blogspot.com/
And just for lolz…but seriously:
s.142 of the Constitution:
5) The Prime Minister–
(a)… (b)…
(c) may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.
UPDATE: I see Somare is trying to hide the Moti Report from the National Court too. How can you contest something you won’t let the Court see??? Come on Mr Kua, you should know better than that. http://www.thenational.com.pg/090507/nation2.htm
I don’t wish to address why Moti was being pursued by Australia 6 whole years after the dismissal of his case in Vanuatu (though a ‘new’ application has been pending in the Vanuatuan Supreme Court since 1999), nor the claims of a witch-hunt, nor whether a re-trial of Moti under the Australian judicial system could amount to double jeopardy.
What I wish to address is Papua New Guinea’s role in all this, in particular Somare’s role in the Moti affair and why his actions were at the least, so very very unnecessary. I will attempt not to enter into speculation (a paragraph with forewarning) on whether or not Somare sanctioned Moti’s escape aboard a PNGDF aircraft but I will analyse the illegality of his actions surrounding the aftermath of the Moti escape.
Contrary to some claims floating about on the net and to Somare’s own statement on the 15th of November 2006, Moti was arrested under PNG’s 2005 Extradition Act (“The Act”) not the 1975 one. The Act was implemented as a direct result of PNG’s membership of the Pacific Islands Forum and its signatory status to the Pacific Island Forum Commitment to Fight Transnational Crime, Money Laundering, Human and Drug Smuggling. The Act stipulates that extradition of nationals of Forum countries (Pacific Islands Forum) is to be processed under a different manner to that of nationals of non-Forum countries. The most significant difference between these processes being that the former is a purely judicial process while the latter allows for political involvement.
Moti as a national of a Forum country (Australia) was arrested on a provisional warrant as per section 10 (s.10) of The Act. Under s.10 an application for a provisional warrant is made on behalf of a Pacific Forum country and the Magistrate is told in an affidavit that the original warrant is in the Forum country and that the person named (who is in PNG or about to enter PNG) is the same as that named in the original warrant; and the Magistrate believes that it is reasonable to issue a warrant then they must issue the warrant. (Here I’m ignoring Somare’s ill-made claims that the same Magistrate cannot issue a warrant and hear the case- remember they’re assumed to be objective 3rd parties).
Now understandably there is confusion as to how Moti was arrested so here is a timeline on agreed facts to clear things up and again I’m only interested in PNG’s role in all this:
2006
· August: Australia puts a request out to Interpol for the arrest of Moti
· Interpol proceeds to send out a red alert to all its member countries for the apprehension and detention of Moti, including to the Pacific Transnational Crime Coordination Centre (PTCCC) in Fiji of which PNG is a member.
· September 28th: PNG Police receive the red alert from the PTCCC and also receive a request from Australia for a provisional warrant of arrest to be issued on their behalf by PNG officials for Moti’s arrest.
· September 29th: The Transnational Crime Unit of the PNG Police Force arrest Moti at Jacksons Airport at 5:30am on the info they’ve received from the PTCCC and the Australian request. There is no warrant for the arrest. It is unclear whether the arrest was made under s.3 of the Arrest Act 1977, which allows for arrests without a warrant.
· September 29th: According to Somare’s statement on 15th November 2006 a warrant of arrest is issued by the Waigani Committal Courts at 9:30am. What exactly the warrant of arrest was for (what crime) is unclear. Somare also mentions that an application for a warrant under the 1975 Extradition Act was made. Whether the warrant issued at 9:30am was under the old extradition act or whether Somare was referring to the provisional warrant issued the next day is also unclear. (Anyone who knows for sure the details of this apparent warrant please inform me)
· September 29th: Moti is released on bail
· September 30th: The Public Prosecutor obtains a provisional warrant of arrest under s.10 of the 2005 Extradition Act. Moti has failed to appear at the Waigani Committal Court, the Court then revokes bail and sets the date for proceedings a surrender warrant (ss.15-21 of The Act) on Monday the 2nd of October.
Moti never fronts, instead Moti has fled to the Solomons Embassy whereupon he was airlifted to the safety of the Solomons aboard a PNGDF aircraft.
Now so far the only place PNG may have gone wrong is with the arrest of Moti at Jacksons Airport. It’s unclear under what acts/laws he was arrested, however, if there was illegality here Moti could’ve easily contested the matter in Court …but he didn’t stick around did he.
Where PNG really goes wrong is with that wretched PNGDF flight out of PNG.
The thing is, it was all so very unnecessary. Prominent sources (yes, I have them) have suggested that Moti would’ve succeeded if he had been tried in PNG because at the time there was considerable ambiguity surrounding the 2005 Extradition Act and the implementation of its protocols. Jurisdictional issues would’ve been argued, including dual criminality and double jeopardy (if proven, both expressly prohibit extradition under the The Act). Moti as a QC would’ve known his chances were pretty good, hell he could’ve represented himself and flown Air Niugini to the Solomons, instead he escaped kanaka style because prominent Pacific Islanders are apparently above the law.
Here’s where I speculate a little…
If some of you out there still doubt whether the airlift was a PNG Government initiative then I advise you to crawl out of the rock you are under and join the real world. I appreciate the matter is before the Courts but everyone knows the orders had to have come from somewhere around the top, and let’s face it, with Somare’s hawk-like hold on PNG nothing of that extent would have occurred without at the least his knowledge and just a little above that his consent- express or otherwise; and as has been concluded by the Moti Inquiry all the evidence points at Somare’s express consent. Somare by sanctioning a PNGDF aircraft made his little dalliance with Moti an official executive action of the Government of Papua New Guinea.
End of speculation…
But let’s uphold the Constitution of PNG and state that Somare is innocent until proven guilty by a Court of law. However, this does not belittle the Defence Force Board of Inquiry in any way, as the conduction of an Inquiry into office-holders of the State is itself contained in s.28(1)(g) of the PNG Constitution. In fact s.28(2) of the Constitution states that where an independent tribunal has made recommendations, the appropriate authority shall act in accordance with the recommendation. In this case, the recommendations of the Moti Inquiry should be taken up by the authorities named; including the Ombudsmen Commission and the Department of Public Prosecutions who the Inquiry recommends investigate what it believes are violations of the leadership code (s.28 of the Constitution) and various criminal conduct (perverting the course of justice, conspiring to defeat justice…) executed by the Prime Minister of Papua New Guinea, Sir Michael Somare.
Now, it’s about here where things get a little heated, because apparently the Grand Chief is truly the Grand Chief of PNG so he can pretty much do whatever he wants. You’ll notice in a statement released by Somare on the 15th of November 2006 he was quick to point out the alleged illegality of Moti’s arrest and attempts to protect Moti’s rights under PNG’s Constitution, when the issue at hand was Moti’s escape NOT his arrest (attempting to distract much?). Yet, Somare himself has no qualms with ignoring and plain violating the Constitution and laws of PNG when he feels the need.
Setting aside the fact that Somare may have ordered the Moti escape, let’s look at his various other indiscretions including his violation of all forms of law:
1. Stating that PNG would let Moti walk prior to any Court hearing when the 2005 Extradition Act clearly states that extradition of Forum nationals is a purely judicial process, this could be seen as unconstitutional as it illustrates executive interference in judicial powers (separation of powers).
2. Arbitrarily sacking the Defence Minister (Ani) for apparently failing to request an extension of time for the Defence Board of Inquiry. Under s.3 of the Defence (Boards of Inquiry) Regulation 1978, the convening of a General Board of Inquiry (such as the Moti Inquiry) is done by the Minister of Defence and decisions pertaining to extension of the Inquiry’s duration is also up to the Minister as per s.2(3). Mr Ani did not need the PM’s express approval to extend the duration of the tribunal and as such the PM had no valid reason to sack Mr Ani and by doing so (for the reasons stated), Somare is probably in breach of the leadership code of conduct contained in the Constitution, particularly of s.27(1) of the Constitution which includes at part (c ): allow(ing) his public or official integrity, or his personal integrity, to be called into question.
3. In sacking Mr Ani the PM was also in breach of s.144 of the Constitution which requires that for a Minister to be dismissed: a motion of no confidence is to be passed against the Minister and that either the Head of State sack him on the PM’s advice or that he is sacked for a violation of the leadership code. This procedure was not followed.
4. Somare assumed the powers of the Ministry of Defence and made executive decisions about the Defence Force Board of Inquiry when clearly there is a conflict of interest (he is under investigation); this is a breach of s.27(1)(a) of the Constitution which states that the PM may not: place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties.
5. Failing to make the Moti Inquiry public and threatening contempt of court for its publication. Under s.17 of the Commissions of Inquiry Act 1951 an Inquiry report must be tabled in parliament unless it is deemed to be in the public’s best interest to withhold publication. As there is no equivalent of s.17 in the Defence Force (Board of Inquiries) Regulation, we must assume that something of a similar nature is applicable as s.51 of the Defence Act 1974 refers to Regulation of Defence Force Boards of Inquiries incorporating the provisions of the Commissions of Inquiry Act. In this light, I fail to see how an action that would not be in Somare’s best interest equates to not being in the public’s best interest too. Yes he may be the Grand Chief but we also have a democracy in this country. The law is clear here and Somare has violated it by stalling the Moti Report’s publication- even before his Court case was pending. Again Somare is in breach of the leadership code.
6. Bringing an action against members of the Defence Board of Inquiry. Somare has clearly on some legal advice on the finer points of law (thanks Mr Kua) weaselled his way around to bring an action against the Tribunal who under the proper process of the law would have been protected.
S.18 of the Defence Force (Board of Inquiry) Regulation states:
where the Minister consents to the publication of a report of a Board, no action or proceeding in respect of the publishing of that report may be brought against–
(a) the State or its agents or servants; or
(b) a Minister; or
(c) a member of the Board.
Somare deliberately fired Mr Ani so he, with the powers of the Minister of Defence, could sit on the Inquiry’s Report, halt it from publication (illegally) and then bring an action against the Members of the Board. What a laugh…or real cleverness…or plain treachery, whichever way you look at it. What happened to judicial immunity and/or its equivalent?
Let me break it down real slow…
Somare sacked the Minister of Defence because he did not want the appropriate authorities, including the Ombudsmen Commission to follow the Inquiry’s recommendations as required by law, which could see him suspended while the investigations were pending (s.142(6)(a) of the Constitution) and at worst dismissed from his office if found guilty at trial. Now why would the Grand Chief let go of such a Grand Title?
In order to get his way Somare knew he had to stop the Inquiry’s Report from getting out. How does one do that? By halting publication of the Report and on that technicality bringing a case against the members of the Inquiry.
Apparently the Inquiry was biased. Well why didn’t Somare and his lawyer bring that up during the Inquiry? Instead Somare waited until the evidence implicated him before he took the law into his own hands to protect his own backside.
If the proper legal procedures were followed the Minister of Defence would’ve been Mr Ani and the Inquiry’s report would’ve been published. The members of the Board of Inquiry would’ve been protected from court action and the appropriate authorities would’ve taken up the recommendations of the Inquiry. The Ombudsmen Commission and the DPP would’ve investigated Somare and he would’ve then had the chance to dismiss the evidentiary value of the Inquiry Report on the same grounds he is brandishing about in Court now. In that scenario, if Somare succeeded the Inquiry Report would’ve been thrown out and the case proceed on other evidence or if there was insufficient evidence, the case dismissed. You see there was always legal redress available for Somare the proper way; he just didn’t fancy the proper way.
Somare has preferred the short cut route because it keeps him in power for just that little while longer (god forbid a suspension) and of course he may have apprehended the possibility of the Ombudsmen Commission and the DPP finding him guilty of misconduct and violations of the Criminal Code. And his actions show that apparently he could not possibly risk that. The actions of a guilty man? We may never know, because this man has duped and continues to dupe PNG.
Regardless of the Board of Inquiry Report recommendations the Ombudsmen Commission is still able to investigate Somare for breaches of the leadership code pertaining to his dismissal of the Defence Minister (Ani) and his assumption of the Defence Powers regarding the Board of Inquiry. I would encourage the Ombudsmen Commission to do so and for PNG’s general public to encourage the Ombudsmen Commission to do so too. No one is above the law no matter what niceties you put in front of your name.
For a similar style article regarding the breach of Solomon Islands laws in the whole Moti Affair check this out (Dated Friday May 25th): http://biukili.blogspot.com/
And just for lolz…but seriously:
s.142 of the Constitution:
5) The Prime Minister–
(a)… (b)…
(c) may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.
UPDATE: I see Somare is trying to hide the Moti Report from the National Court too. How can you contest something you won’t let the Court see??? Come on Mr Kua, you should know better than that. http://www.thenational.com.pg/090507/nation2.htm
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