Thursday, 10 August 2017

PNG Prime Minister's Judicial Review case against his warrant of arrest



(This is an update version of my post) This is a bit long and those who are interested can give their email for a PDF copy.


In early 2014 all hell broke loose in Parliament when the, then, Opposition Leader Hon.Belden Namah questioned the Prime Minister on certain payments made by the State at the direction of himself (PM). The Opposition leader iterated on several parliament sessions that the Payments were exorbitant and duplicated for legal services rendered long ago in the periods between 2001 to 2006, the payments for which were made by the State already and the law firm was owed no further outstanding by the state.

The opposition questioned the Prime Minister as to why the law firm was still receiving payments in 2014 by his direction through a authorisation letter. The Prime Minister replied, the alleged letter by him was crafted by someone else and his signature was forged. Paul Paraka Lawyers was engaged by the state through a retainer (contract) issued by the Department of Justice and Attorney General somewhere in 2001 (Somare Government) to defend the state in all claims against the state. Bire Kimisopa, the then Minister for Justice and Attorney General and Member for Goroka, commissioned an inquiry into the state brief-out (instruction) mechanisms to private lawyers and upon receiving recommendations from the inquiry, terminated the retainer agreement with Paraka Lawyers in 2006. That was the end of Paraka Lawyers’ engagement with the state. The Law Firm then took the State to Court claiming outstanding bills of a little more than K6 million for the entire contract period. The National Court, in proceeding OS 876, decided in favour of Paraka Lawyers and ordered the state to pay K6, 438,673.06.

The state appealed the decision of the National Court, disputing among others, the amount awarded. Pending the hearing of the appeal, the state successfully obtained from the Supreme Court a stay order restraining the payment of any state funds to Paul Paraka Lawyers. The stay order was issued through Supreme Court proceeding number; SCM 3 of 2007 which is currently on foot and has never been discharged.

The Opposition leader’s question was, whey were these payments still made to the law firm excessively way beyond K6, 438,673.06 and even against the prohibition placed by the Supreme Court? This serious allegation against the Prime Minister resulted in a warrant of arrest against him. The Prime Minster quickly built a defensive wall against the warrant of arrest. This has led to three (3) years of legal battle, bloody student unrest, employment terminations and destructions of properties around the nation. For how long this will continue? No one knows. I will discuss the, so far, three year period of legal battle that resulted in numerous National and Supreme Court proceedings on the back of a very simple and straight forward warrant of arrest. The country has never experienced a legal and social chaos, a magnitude of this much, for a sustained period of three (3) and even could be more, caused by a very little thing called a “warrant of arrest” which is normally dealt with by a police officer and a magistrate at once. I will now look at how the mountain of high court cases have been built upon this tiny creature called “warrant of arrest”, maybe lees than a molehill.


On the 12th of June 2014 a warrant of arrest was issues by the Chief Magistrate, her worship, Nerrie Eliakam on account of an application for such by Chief Inspector Timoty Gitua of the National Fraud Squad Directorate. In short, the warrant of arrest was to be effected on Prime Minister Peter O’Neil for official corruption allegations of him authorising monetary payment to Paul Paraka Lawyers, using the powers of the Prime Minister’s office, which according to the warrant was an abuse and official corruption. Quit contrastingly and just before the warrant was executed, the then Police Commissioner, Geoffrey Vaki applied before the Chief Magistrate to have the warrant of arrest against the Prime Minister set aside. The Chief Magistrate refused the application on the 04th of July 2014. On the 14th of July, In a never say die move, Geoffrey Vaki filed a National Court Review Application, asking the court to review the Chief Magistrate’s decision which refused to set aside the warrant of arrest. At this stage, the Prime Minister was, “cowardly”, named as second Defendant in a proceeding which he was supposed to be a Plaintiff (Applicant). On the 18th July 2014 this disastrous legal convolution was rectified when the court granted permission for the Prime Minster to move from the Defendant’s seat to the Plaintiff’s and was joined properly as the Second Plaintiff. At that stage the Prime Minister was given leave for a judicial review to review the Chief Magistrate’s decision. This leave is merely a permission to file a judicial review proceeding in the court and not the final ruling that will be, later, decided by the court on the merits of the grounds of review. In the lead up, events unfolded that Garry Baki was made commissioner of police and he joined the proceedings in place of Geoffrey Waki, the predecessor. Garry Baki’s position was the same as his predecessor’s, he, together with the Prime Minister, was eagerly determined to quash the decision of the District Court’s Chief Magistrate and set the warrant of arrest aside.


The main ground launched by Garry Baki and Prime Minister Peter O’Neil for the National Court’s intervention to disturb the ruling of the Chief Magistrate was, one of ultra vires, alleging the magistrate had acted beyond legislative authority in that she had no powers to issue a warrant of arrest without an information being first laid, a breach pertaining to section 8 of the Arrest Act. This was a substantive review ground. The other ground, which is quite technical but also on ultra vires, is that the warrant was poorly worded that it failed to disclose elements of an offence, which they may has anticipated had deprived themselves of the benefit of preparing a precise defence. Thus, the warrant of arrest laid outside the scope and intent desired by the Arrest Act.

Justice Makail raised a threshed issue of whether the subject decision of the Chief Magistrate in the District Court was reviewable. In answer to the threshold question, the Plaintiffs (Baki &PM) raised the following: They cited a Supreme Court case of SC1388 of 2014 which is a constitutional reference case that took on Reference character from the National Court to the Supreme Court on its own volition. The National Court itself decided to send the case up to the Supreme Court for interpretation of the Constitutional provisions of the powers and functions of the Police Commissioner. This Supreme Court reference has quite a fascinating aspect as it revolves around the same warrant of arrest. The short history of this Supreme Court Case is this; the granting by the District Court of a warrant for the arrest of the Prime Minister was followed by two National Court proceedings. In OS (JR) No 485 of 2014 the Commissioner of Police and the Prime Minister applied for leave to seek judicial review of the District Court's decision to issue the warrant. In OS No 484 of 2014 the members of the Police Force who applied for the warrant sought to charge the Commissioner of Police with contempt of court for disobedience of the arrest warrant. In each proceeding the National Court, having considered that questions relating to the interpretation or application of provisions of the Constitution had arisen, referred the matter to the Supreme Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution.

Around the same time that those references were made, the Attorney-General (Ano Pala), being an authority entitled to do so, applied by way of special reference to the Supreme Court under Section 19(1) (special references to the Supreme Court) of the Constitution for its opinion on seven questions of constitutional interpretation and application; this reference arose out of the same events that led to the two National Court proceedings and the questions were similar in nature. The Supreme Court decided to consolidate the three references, resulting in them being heard together. A total of 16 questions of constitutional interpretation and application were heard and determined.

In a nutshell, the Supreme Court in its, five men bench, wisdom opined, amongst other, that the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer. Baki and PM appeared to have relied on this authority to lay claim that the issue of reviewability was resolved and they had legal backing to review the decision of the Chief Magistrate of the District Court. This Supreme Court reference case has some notable features that may continue to create some confusion and division of opinion for future court users which I will briefly explain below but here is what transpired in the Supreme Court.

The first question that was posed to the Supreme was this:
“Question 1: whether, having regard to the provisions of the constitution including sections 197 and 198 of the Constitution thereof and the provisions of the police act, the commissioner of police may challenge the validity of a warrant of arrest issued by a district court magistrate on the application of a police officer”.
The position of the parties in relation to this question were:
Prime Minister (Yes) Commissioner of Police (Yes) Attorney-General (Yes) The State (Yes) M Damaru &
T Gitua (No Sir Toami Kulunga (No)

And the court’s ruling was:
Answer to question 1
“Yes, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer.
It is clear that, at least in instances where a court does not issue a warrant of arrest or search or an order of some sort directly relating to a criminal investigation, the conduct of all criminal investigations is subject to the direction and control of the Commissioner. This includes the making by all members of the Police Force of operational decisions, such as:
• Who to investigate?
• What to investigate?
• Who to arrest?
• Whose premises to search?
• Whose bank accounts to search?
• Against whom to seek a warrant of arrest from the District Court?”

In answer to the threshold question, the Prime Minister and Gary Baki further argued that National Court was bound by a three (3) men bench Supreme Court ruling in Ano Pala v Cosmos Bidar [2016] PGSC 33; SC1515 which quashed the decision of Magistrate Consmos Bidar in the District Court to issue a warrant of arrest for the arrest of Ano Pala. The Prime Minister and Gari Baki wanted the same, rather strange, treatment as was the case for Pala in the Supreme Court. Why I am calling the Supreme Court ruling strange will be explained below in my commentary.


In refusing the first leg of argument by Prime Minister and Gary Baki who placed much reliance on the Special Reference Supreme Court case of SC1388 of 2014, Justice Makil ruled that that Supreme Court decision did not address the issue of reviewability as opposed to sufficient interest. Justice Makail clarified that the Supreme Court at that time focused on the constitutional questions raised to see whether the Police Commissioner had interest in a case, in particular the warrant of arrest, in so far as police functions and operations were concerned and the Supreme Court held, the Police Commissioner had interest. The question of reviewing a decision of a district court to issues a warrant of arrest was not addressed at the centre stage of the proceeding. Justice Makail correctly drew the fine line that was conspicuous in the judgment of the Supreme Court because the powers of the Police Commissioner to determine the validity of a warrant of arrest is not the same thing as powers to review the decision of a district to issue a warrant of arrest.

The Supreme Court, merely described the scope of the Police Commissioner’s administrative powers to check on the validity of an arrest warrant but did not extend that administrative scope for judicial intervention. The Supreme Court never established a permanent right for the Police Commissioner to review the decision of district court magistrate every time a warrant of arrest is issued, because to do so would turn the office of the Police Commissioner into a quasi-judicial body where a magistrate’s ruling will always be subjected to the scrutiny of the Police Commissioner. To push such and argument would mean to allow the executive arm of the government to encroach on judicial powers. Therefore, Justice Colin Makail refused to accept this line of argument advanced by the Prime Minister and Garry Bak.
Secondly, on the similar trend of argument but equipped with a different Supreme Court case, the Prime Minister and Garry Baki relied on Ano Pala v Cosmos Bidar [2016] PGSC 33; SC1515 where the Supreme Court quashed a decision of the District Court to order a warrant of arrest against Ano Pala. Justice Makail, again refused to accept this argument because the decision in that Supreme Court case is in direct conflict with another Supreme Court decision, i.e, the case of Eremas Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015). In Eremas Wartoto, the five (5) men Supreme Court bench ruled that;

“a civil proceeding should not be used to stop a criminal proceeding from progressing because there are enough procedural safeguards that are in-built into the criminal process the give full protection to the constitutional right of an accused person including the benefit of presumption of innocence and a fair trial.”

This is an overarching ruling of the Supreme Court by a 5 men bench and on this basis, Justice Makil refused the Plaintiffs’ arguments and dismissed the Judicial Review Proceedings filed by Prime Minister and Garry Baki in its entirety.

The National Court presided by Justice Makial, frankly, did not address the two grounds of review couched by the Prime Minister and Gary Baki. Thus, no arguments were advanced by the Plaintiffs in that regard and so no ruling was made on those grounds. However, this did not preclude the Judge from doing what he did. For the purposes of clarity of issues, the Judge as the controller of proceedings, is entitled to raise threshold issues that needs to be answered first before dwelling in the chief areas of the cases. If, in the instance that a party fails to meet a perquisite standard (threshold issue) of a claim either procedurally or substantially, the courts have powers to end the proceedings by way of dismissal or an award right there. This is what actually happened in this case. In Justice Makail’s respectful opinion, the Prime Minister and Garry Baki failed to answer a substantive but a threshold question that linked directly to their grounds of review.

That threshold question was “whether the subject decision of the Chief Magistrate in the District Court was reviewable”. To put simply, does the National Court have the power to review a decision of a district court to issue a warrant of arrest. This question becomes threshold because if the Judge was saying “yes”, it has powers, the judge would then proceed to look at the merits of the two grounds of the review. By saying “yes” would not automatically mean the ruling is made in favour of the Prime Minister and Gary Baki and the District Court order (warrant of arrest) would be quashed. It will not. The judge will then proceed to look at the merit of the grounds and decide whether the errors alleged by the Plaintiffs; were actually committed or omitted by the Chief Magistrate. If, at that stage, the court finds no error was committed, the court can rule against Prime Minister and Garry Baki in their pursuits. This issue that was raised at the preliminary stage of the proceeding was very important and the Judge rightly did so because the requirement to do so was imposed by the Supreme Court ruling in Eremas Wartoto. The Supreme Court case of Eremas Wartoto should go down in our short legal history as the top most celebrated case of all time, and the five men bench judges (Special tribute to Late Honourable Justice Catharine Davani) who individually delivered this legal panacea should be highly commended. I take my hat off for them. Their ingenuity and wisdom have saved the nation of PNG.

The second decision of the Supreme Court relied on by the Prime Minister and Gary Baki was the ruling in in Ano Pala v Cosmos Bidar [2016] PGSC 33; SC1515 which set aside a warrant of arrest issued by Magistrate Cosmos Bidar in the District Court. Earlier on, I indicated that this decision was “strange” and I will endeavour to explain that.

Firstly, it was a three (3) men bench and it is quit disheartening to see that the ruling, when concerning matters of serious national importance, was made by only one member of the bench and the rest of the members subscribed to that ruling without expressing any independent opinion or reasons for the cause they took.

Secondly, the whole judgement falls out of the conventional system of criminal and civil law justice administration, a tradition that is time honoured and loved by Papua New Guineans as a deeply entrenched bifurcation of justice administration. In the absence of any clear legal demarcation by statute, this customary practice of parallel justice administration is the core value that underwrites the overall justice system of our country and we must not permit to cross-over each other. If cross-over is permitted the streams of justice will be muddied.

Thirdly, the judgment is a judicial blunder that will effectively weaken criminal prosecution mechanisms and attacks at the root of rule of law which has the potential to paralyze society into anarchy. A warrant of arrest is a very crucial device that fits as one of the bolts and nuts of the criminal law machine. Allow that bolt to be removed at an individual’s whim anytime he/she pleases and you get a crash on the machine. The people, as the beneficiary of the machine’s function, are in chaos as society crumbles.

Finally, the very strange and interesting thing to note in that case is, the Plaintiffs and the Defendant were Garry Baki, Peter O’Niel and Ano Pala who sought only one pre-planned cause and that was to have the warrant of arrest set aside. Despite this glaring motive, the court proceeded to entertain and let itself be abused by a frivolous and vexatious proceeding which did not deserve a second of judicial time. This is a clearest and outrageous case of judicial abuse by purported litigants. This is a good example of parties reaching an agreement for an improper motive but seeking the court’s blessing through a pretence of dispute so that the ruling finally would legitimate their agenda. Given the history of court proceedings and the positions of those same parties in all those cases, the court failed to discern the mockery it was made of. I take the risk to point this out because, while the good citizens celebrate the Eremas Wartoto case, the criminals will celebrate the Ano Pala case. When a politician or a well to do person is arrested, he runs to the court, equipping himself with the Ano Pala judgment. For how long will Papua New Guinea tolerate this trend and keep its constitutional democracy vibrant?

The Supreme Court Ruling in Eremas Wartoto is the law on point at the moment. It is a five (5) men bench Supreme Court, well-reasoned, ruling and it prevails over the (3) Men bench ruling in Ano Pala. So the current law is as follows: “
“It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it”

Long Live Wartoto (Case)

If the case had be fully heard on the two grounds of JR raised, I would have said, the grounds were legally misconceived and flawed for a couple of reasons. Firstly, the Arrest Act (Section 8) does not make an information a mandatory requirement. It is dealt on a cases by case basis. Making a requirement mandatory would defeat the whole purpose of criminal justice system. There is further bolster in the Act itself that private citizens can arrest without warrant of arrest. People cannot wait for criminals to rob them and do nothing because they have not laid an information. The police cannot arrest because there was no information. The whole Arrest Act is crafted upon the principle that “criminal law does not wait for a crime to occur”.

Secondly, the ground on the poor wording of the Warrant of arrest for failing to disclose the elements of offence, I would have said, this ground is also misconceived and legally flawed. The Arrest Act requires that a warrant of arrest shall state briefly the offence or nature of the information on which it is founded. It says “shall briefly state the offence or nature of information. There are two ways to put this. The Act requires either a brief description of the offence or a short summary of the facts. Either is correct. The Act does not call for a well written description that discloses fully the element of an offence.
In re Powers, functions, duties and responsiblities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014)
This Supreme Court Reference case was relied by the Prime Minister and Gary Baki which held that;

“ the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer”.

and I indicated that I would provide some thoughts which I do so now. When a first year law student enters university he/she looks at administrative law course at a glance and quickly figures the Parliament, the Courts and the Executive arm of a government. The student then goes, quite in debt, to learn the source, distribution and scrutiny of state powers amongst these three (3) branches of government. There are numerous arguments by lawyers, judges, and academic writers around the world as to which institution should be supreme in law making and which such control and supply the powers. These group of scholars are dived into two groups. The first group argues it should be the Parliament which should reign supreme as courts are not the source of law making but only follow the will of parliament. While the second group argues that the court is the Supreme institution that ultimately supplies what Parliament has left out and has the powers to monitor democracy and public power through judicial review.
Whichever group one subscribes, the ultimate idea is, we have a constitutional democracy in which our institutions are established by the Constitution. Constitutions do not capture passing fades of the hour, rather they provide general guiding provisions with the exception of fundamental rights. If a constitution captures a spur of the moment event, that would result in rigidity and stiffness. And so our constitution did not provide for the Police Commissioner’s right to intervene and examine a validity of a warrant of arrest which it purposely left out to be sorted by police at the administrative level. The supreme Court reference In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014) was basically to find out what our constitutional planners or drafters would have thought about a small thing called warrant of arrest.

To find the intention of the Constitution, the Supreme Court combined several other provisions in the Police Act, the Arrest Act and the Constitutional itself. The result was the ruling that the Constitution intended that the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate. And a first year law student may, out of curiosity, ask, so why did not the constitution say so explicitly in itself rather than leaving the courts fumbling around for answers? I have no answer for this challenging question but to clear some air and to save myself from the embarrassment the question would have placed on me, if I were the lecture, I would at least discuss some general principles. Firstly, it has always been a doctrine of judicial supremacy that parliament does not intend improper purpose. When parliament passes a legislation, including the Constitution, it does not intend that those legislative instruments carry any bad motives of improper purposes.

Secondly, what parliament did not mention expressly or impliedly is a tacit approval for judicial invention. If parliament, when passing constitutions and legislations, leaves out a matter clearly and completely or mentions it in an ambiguous manner, it is taken by the court as an approval by Parliament for it to invent and close up the missing space. This is called the principle of deference, respecting each other. Thus, judicial creativity comes into play and laws are formulated from cases in the caldrons of court rooms. The second principle may still the pricks of the student’s curiosity because Parliament did not clearly provide for how a warrant of arrest should be handled and the court has invented the rule in place of parliament that the police Commissioner can now challenge a validity of a warrant of arrest.

However, when looking at the improper purposes principle, did Parliament really intend for a Police Commissioner to check the validity of a warrant of arrest? A warrant of arrest is a legal device possessed by the courts and not the police. A warrant of arrest does not lie within the powers, functions and responsibilities of the Police Force and is out of police jurisdiction. The warrant of arrest only becomes a police instrument after it is issued by the District Court upon application by a police officer. To allow the Police Commissioner to examine and further decide on the validity of the warrant of arrest is to permit the Police Commissioner to review the decision of the District Court Magistrate in an administrative fashion. The Police Commissioner is now dragged in and is made part of the judicial system where a decision of a magistrate to grant a warrant of arrest will then go to the Police Commission for a further final decision. This is an instance where an administrative agency of the government has now been allowed to encroach on the affairs of judicial administration permitted by the judiciary itself. Is this the kind of purpose the constitution or parliament intended? Definitely no, so the ruling of the Supreme Court in SC1388 is now faced with this tragedy.

Also when looking at the immediate motive of the Police Commissioner and the Prime Minister, both were hell bent on wavering a normal criminal process which is question begging. There are six (6) instances where a criminal proceeding against a person can be dismissed. Firstly, a charge can be dismissed by the District Court for want of prosecution if the police take longer to investigate and compile police report within a reasonable time. The reasonable time test is accepted to be three (3) months but depends on the nature and complexity and location of the crime scene and crime itself and witnesses/evidence collation. Secondly, the charge can be dismissed or stuck out by the District Court if the accused is charged under a law that does not exist, (technical).Thirdly an accused can be set free by the District Court on insufficiency of evidence. If the evidence collected by police is so insufficient that even the National Court will have difficulty in securing a conviction, the District Court will proceed to extinguish the case against the accused.

Fourthly, if the accused is committed to the National Court, the accused has an opportunity there to dismiss the case against him/her based on evidence not fitting the elements of the offence. Fifthly, if the accused fails at this stage in the National Court, he/she has a further chance to dismiss the case if the prosecution fails to prove beyond reasonable doubt that the accused actually committed the crime alleged.

Finally, if the accused is convicted, he or she can stay out of jail by asking for the court’s leniency or to make a restitution and acquire a non-custodial sentence. These are the self-serving mechanisms within the criminal process, factoring our constitutional right. This will now leave reasonable people to wonder why do we have people screaming and running all over the face of the court system when there are sufficient avenues to get themselves off the hook within the criminal process.

Now coming back to the improper purpose principle, is this the purposes intended by the constitution or the Parliament to resolve criminal matters administratively at the whim of the Police Commissioner? I don’t think this was the purpose intended by the constitution when there are already sufficient mechanisms within the criminal process in the judiciary to decide the validity of a warrant of arrest. If the warrant of arrest is poorly worded, then there is a process to make an application to have it struck out after arrested and formal charges have been laid. Everybody on the land goes through that process and the system shall remain partial all the time to ensure public confidence is firmly built on it.

The criminal law and its arrest processes are the most effective and strongest powers possessed by the states in many countries. Dictators and ruthless rulers use this criminal law powers as a weapon against those who opposed them. If this happens in Papua New Guinea, it will be contrary to the essence of our democracy and if it becomes permanent somewhere, our society will cease to be democratic, it will be a totalitarian system with such abuses. And the longer the period of such practices, the more the law itself will be made to fit the illegal task. All the mechanisms placed to safeguard our democracy will gradually be eliminated in the name of rationalism, simplification and expediency. The guarantees and safeguards of our democracy will be condemned and destroyed to lose their importance in the actual administration of criminal justice.
Punishment is the strongest manifestation of government power and the criminal law regulates violence by asserting a public monopoly on vengeance (payback). Simply, Criminal law possess the power of payback and entrusts it to State. Thus, a crime is always regarded as an offence committed against the state and is seen as, The State vs Joe Blow, in criminal proceedings. The state is the ultimate protector of each individual’s security and dignity and criminal law gives each individual a stake in the law’s authority. Criminal law underlies the importance in legitimising the rule of law itself. When the criminal law or its devices are attacked, the rule of law is attacked and so the root of our society.

On the question of the Prime Minister’s plan to appeal Justice Makil’s National Court decision, withhold my opinion as that may amount to sub judice. However, a general observation, can be made to determine the validity of that proposed appeal based on the analysis provided, more particularly on the current position of the law. Until that appeal is filed and a stay order is obtained against the execution of the warrant, the Prime Minister is under suspicion by operation of the warrant of arrest and can be arrested anytime from the date of Justice Colin Makail’s ruling.

However I remain prone, this is my personal observation and should not be relied on by anyone to further their own causes in any instance

PNG's Chief Justice Salama Injia 


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