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Tuesday 20 Feb 2018 | 00:45 | SYDNEY
Tuesday 20 Feb 2018 | 00:45 | SYDNEY

When police try to arrest the Prime Minister

Papua New Guinea's Prime Minister Peter O'Neill (Photo: Mark Schiefelbein/Getty)

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COMMENTS

22 December 2017 12:30

Papua New Guinea’s Supreme Court last week decided to void the arrest warrant of Prime Minister Peter O’Neill, bringing to an ‘end’ one of the most controversial legal cases in the country’s history.

The saga began in June 2014, when an arrest warrant was issued for O’Neill after allegations that he fraudulently authorised the payment of a reported 72 million kina ($28 million) sum to a national law firm, Paul Paraka Lawyers. The investigation was carried out by the country’s then anti-corruption investigators, Task Force Sweep, in conjunction with the National Fraud Squad. The Prime Minister refused to comply with the warrant and forced the resignation of the police commissioner and disbanded Task Force Sweep. The matter hastily reached the court rooms.

Pursued in court

O’Neill applied to the National Court for a restraining order to prevent the police from enforcing the warrant. The Court refused on 1 July 2014 on the grounds that restraining the police would ‘amount to interfering with Police functions’. But newly installed Police Commissioner Jeffery Vaki refused to enforce the warrant and instead applied to the District Court to have it set side. Chief Magistrate Nerrie Eliakim rejected the application on 4 July, satisfied there was a case to justify issuing the warrant.

The debate continued to 2 October, when the Supreme Court responded to a set of constitutional questions following the District Court’s decision. One key issue was whether the Police Commissioner has ultimate control over the function of the police. The Supreme Court said he does, however, that does not mean that the Commissioner can delay or stop a validly issued warrant from being executed. The Supreme Court held that the warrant of arrest against the Prime Minister was ‘something more than an authorisation: it is an order, demanding obedience’ from police officers including the Commissioner.

Having received the clarification, the case returned to the National Court, to hear a contempt charge against the Police Commissioner for refusing to enforce the warrant. The chief justice found on 17 June 2015 that the warrant was validly issued, ‘clear and unambiguous’, and the Police Commissioner was guilty of contempt.

The issue still dragged on. On 8 August this year, just a week after O’Neill was returned as Prime Minister, the National Court ruled the arrest warrant to be valid and that the decision by the chief magistrate to issue the warrant cannot be reviewed until the criminal trial is underway. Justice Collin Makail was pressed to consider the potential damage to the reputation and standing of the Prime Minister. Malkail denounced the argument as an attempt to create ‘two sets of laws for [the] people; one for the “small” people and one for the “big” people’. He rejected it as ‘a dangerous precedent’.

Warrant ruled ‘defective’

All of which leads to the Supreme Court decision on 15 December. On appeal, the Supreme Court found the warrant of arrest to be defective. Under section 87(2) of the Criminal Code, a warrant is needed to arrest a person suspected of committing the offence of official corruption. It is a mandatory requirement.

When applying for a warrant, one of the requirements under the Arrest Act, is to supply the court with a brief description of the offence or the nature of the ‘information’ on which the charges are based. O’Neill argued that this ‘information’ was not presented to the Chief Magistrate at the time when she issued the warrant of arrest, rendering the warrant defective. The Supreme Court accepted this argument. It was a three-person judgement comprised of Justices Joseph Yagi, Harold Terrence Foulds and Terrence Higgins (the latter two former Australian practitioners and jurists).

This judgement raises interesting issues.

First, Chief Justice Salamo Injia dealt with the same issue in 2015 and took a different view. He ruled on evidence that Chief Magistrate had ‘information’ at the time she issued the warrant and the technical aspects of the warrant were intact. He further held that those who opposed failed to prove otherwise. Interestingly, this judgement was not mentioned or considered by the Supreme Court in this recent ruling. There seems to be potential inconsistencies between the judgements, which may require a proper assessment for future cases.

Second, there was no opposing party at the trial. After Task Force Sweep was disbanded, and the Fraud Squad were denied independent lawyers, all the parties representing the case, including the state lawyers that acted for the police, wanted the warrant to be set aside. This was unusual for a high profile case. Justice Makail observed, worryingly, in earlier proceedings that ‘the parties represented at trial all wanted the warrant of arrest set aside’.

In essence, the case came down to the conscience of the judges against an alliance of lawyers. It is a disturbing precedent and judges in such instances are expected to do more than just adjudicate or rely on submissions from lawyers.

Third, it was interesting to observe the international cases cited in the judgement were all from the Australian Capital Territory (ACT), especially for a case of such national significance. A more comparative analysis of different and perhaps prominent jurisdictions with similar socio-political circumstances to PNG would be beneficial to the development of law in the country.

O’Neill not exonerated

The effect of this decision is O’Neill is no longer a subject of an arrest warrant. The Supreme Court did indicate that a new warrant can be obtained, but that would be impossible under conditions that have changed since the original warrant was issued. Any attempt by the police would be subjected to the recently established ‘internal vetting committee’ and concerns for job security is sure to discourage the Police Commissioner. An appeal to the full bench of the Supreme Court is possible but there are no opposing parties.

The Court’s ruling did not exonerate O’Neill of the allegations of corruption. It only said that the warrant issued was defective, leaving the substantive allegations still open to scrutiny.

O’Neill has called for attention to be turned to the ‘real culprits’. The case concerning Paul Paraka Lawyers is still on foot and it will be interesting to see where it will lead and whether O’Neill will be implicated. The case about the warrant of arrest is also a reminder to the police to ensure a high standard of diligence.

The Prime Minster is also relieved as his government prepares to host the APEC leaders summit next year. But it is hard to tell if the people of PNG share his relief, especially after a tumultuous national election this year and the worrying socio-economic conditions of the country. This case costs taxpayers millions of kina and senior public servants their jobs, damaged the reputations of statutory agencies, and above all, left a dent in the rule of law in the country.

O’Neill’s fight maybe over for now, but the consequences it leaves behind are sure to remain.

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