FOLLOWING THE DECISION OF THE SUPREME COURT DOES THIS MEAN THE PM WILL BE ARRESTED?

By  Bryan Kramer 

Seems many are still confused on this issue and asking the same question. The short answer is NO. It does not mean the PM won't be arrested, it just means not right now.

Was the Supreme Court ruling directly related to the Paraka-gate Saga or the arrest of the PM? Answer is NO.

So what was the Supreme Court decision about??

The Supreme Court decision relates to 16 constitutional questions referred to it by the National Court and the Attorney General Ano Pala. If you recall from my previous articles explaining the Supreme Court is the highest court in PNG and namely deals with Constitutional Law and reviewing decisions (appeals) made from the National Court.

The National Court is in charge of court proceedings dealing with criminal and civil cases and reviewing decisions of the District Court.

District Court deals with summary or minor offences including issuing arrest warrants against a person who commits a serious criminal offence where the law requires a warrant be issued before police can arrest the accused (person is who suspected of committing the offence).

In this case the National Court is dealing with a Judicial Review case filed by Commissioner of Police Vaki and PM reviewing the decision of the District Court who issued the arrest warrants against the PM and refused Vaki's request to withdraw it.

Why? because if you want to withdraw an arrest warrant you have to back to the Court that issued it, and if the Court rejects your request but you believe the decision was wrong then you have the option to go to National Court to challenge or review the District Court's decision against you.

So what is a Judicial Review? I explained it in my early post/article which is self explanatory.

Back to the Supreme Court decision, so of the 16 constitutional questions the National Court referred 9 questions of law to the Supreme Court to provide interpretation (explain the meaning) and application (how the law should should be applied) and the other seven questions came from the Attorney General Ano Pala. But why?

Well when the National Court is unsure about the interpretation or meaning of a law that relates to the Constitution or how it should be applied the National Court must refer or ask the Supreme Court to provide the answers or interpretation. The National Court decisions are only made by one judge where the higher Supreme Court decisions are typically made by three if not five judges. A decision of a Supreme Court is binding on the National Court meaning it has to follow the Supreme Courts decision because the Constitution (Sch 2.16) says so.

So when Vaki filed the case in the National Court to review or challenge the decision of the District Court, the National Court suspended the arrest warrants until it first heard the case.

But before hearing the case the National Court was unsure about the constitutional powers of the Police Commissioner and whether he has the power to issue directions tor control over other members of the Police Force to obtain or withdraw the arrest warrants. Members of the Police Force also have Constitutional powers. Constitutional powers meaning their powers are provided or stated in the Constitution. eg Section 197(2) of Constitution provides powers to every member of the Police Force to make an arrest or withdraw charges and states they are not subject to control by anyone outside the force. So even the Judiciary can not control a member of the Police Force provided he/she follows the law. Section 198 of Constitution provides the powers of the Police Commissioner giving him wide administrative powers to run the Police Force.

So the 16 questions referred to Supreme Court relate to the following cases

- six constitutional questions relate directly to the PM and Vaki's case

- three constitutional questions that relate to contempt of court charges filed by fraud squad members against Vaki for not effecting the arrest warrant.

- seven constitutional questions referred by Ano Pala in his capacity of Minister of Justice or Attorney General or AG.

Where a member of parliament is appointed Minister of Justice and he is a qualified lawyer he is referred to as Attorney General if he isn't a qualified lawyer he is referred to as a Minister of Justice. Kerenga Kua and Ano Pala's are lawyers so they are referred to as AG when holding the Ministry of Justice. Biri Kimosipa who was an MP and the Minister of Justice back in 2006 because he was not a lawyer thus referred to as Minister of Justice and not AG.

Anyway back to 16 constitutional questions. They were generally centred around three main issues

1) Powers of the Police Commissioner in relation to the control and direction of other members of the Force

2) Powers over an arrest warrant issued by the District Court and 

3) Whether a warrant of arrest was a court order and whether the National Court has jurisdiction (powers) to deal with contempt charges against the District Court orders in this case arrest warrants issued by the District Court.

The Supreme Court ruling yesterday was to provide the answers to the 9 questions asked by the National Court to assist it with dealing with the PM's and Vaki's case challenging or reviewing the District Court's decision to issue the warrant and secondly its refusal to withdraw it.

So what were the main issues determined by the Supreme Court

1) The Police Commissioner has the authority it issue directions to the members of the Police Force regarding conduct of criminal investigations, including applying for arrest and search warrants and charging someone.

2) A arrest warrant issued by the District is equivalent (the same as) to a Court Order which must be followed or complied with. The Police Commissioner has no powers to ignore, interfere or refuses to comply with it maybe guilty of contempt of court.

3) The Police Commissioner or any member of force can in the appropriate cases can apply to the District Court to withdraw a warrant of arrest. Of course such an application or request must be genuine and for good reason. A warrant of arrest is court order and the Court is not just going to with draw its orders because you want it to. If the Commissioner of Police wants to withdraw or direct a members of the Police force to withdraw a warrant the has to demonstrate to the Court the warrants are defective or information (evidence) provided to obtain the warrant of arrest is false.

4) The Police Commissioner has standing (has a right) to challenge a warrant issued by the District Court.

So why did the Supreme Court recognise the powers of the Commissioner of Police when some will argue he is biased and unlawfully preventing the PM's arrest. Well the Supreme Court was not interested in Geoffrey Vaki or his actions but the office he holds. It is common sense that a person who is in charge of an organisations especially discipline forces like the Police Force must follow orders of rank and file. The Supreme Court held this view because the special nature of the disciplined forces, it is a primary duty of the their members to obey lawful orders. The Police Commissioner is the head of the force if members did not follow him there would be chaos. Having said the Commission is constitutional office and must also act appropriately serving the rule of law not the interest of those who appointed him. He has the powers to direct and control of other members of the Police Force and hey are obliged to follow his orders provided they are "lawful" But he does not have power to defy or interfere with an arrest warrant issued by the Court.

So now that the Supreme Court has answered the National Court's questions now what? Well the ruling of the Supreme Court will be referred back to the National Court to consider in the PM and Vaki's Judicial Review case challenging or reviewing the District Court ruling.

In a Judicial Review case, a person must first obtain leave (permission) to demonstrate firstly they have standing (a right to file a case) to challenge or review an earlier decision and secondly they have a strong case based on law or facts or both. If the National Court refuses leave (permission) your case is over. If they grant you leave then you file a proper application for Judicial Review.

In this case the PM was granted leave but Vaki wasn't but now the Supreme Court has ruled the Police Commissioner the head of the Police should have the right to challenge any warrant issued under his office in appropriate cases like where the warrants are improper.

So now Vaki after initially being refused leave by the CJ will now have the right to apply for leave and join the PM in challenging the District Courts decision not to withdraw the arrest warrant against the PM.

This hearing may take place next week. If Vaki is granted leave then both Vaki and PM lawyers will file a formal application for Judicial Review and for the National Court to hear the case. If Vaki is refused leave because he can not demonstrate strong grounds or reasons then the case will proceed with PM as the only party (applicant)

The process of Judicial Review from start to finish can take about three months, given the case is high profile the Courts may give it priority and maybe take only two months. But until the National Court rules on the case the arrest warrants against the PM will remain suspended.

Judicial Review process.

Once parties being the PM and Vaki obtain leave (permission) the following process will apply soon after.

1) Directional hearing - first hearing where the Court gives directions to parties on issues of legal representation, service and filing of documents, 

the grounds of review, legal issues, Statement of agreed and disputed facts, filing of extract of submissions and filing of Review Book and 

Fix a date for the Pre- hearing Conference to take place within seven (7) days of Directional hearing

2) Pre-hearing or trial conference will deal with confirming correctness of the Review Book, confirm grounds of review, confirm legal or factual issues, filing of extract of submissions, confirm the length of trial and fiix or confirm a date for the hearing or trial.

3) Then Status Conference hearing to re-confirm everything is ready for trial

4) At the substantive hearing or trial the parties lawyers appear and argue their case then the Judge will typically adjourn (postpone) his decision for a month or more to read or carefully consider all the arguments until handing down his final decision.

At the final decision the Judge will either uphold decision of the District Court removing the suspension of the arrest warrants or overrule the District Court decision.

But as I have explained in my previous articles it was never the arrest of the PM that would result in his removal. In my opinion the PM's an Vaki's case will ultimately fail and Vaki to be convicted for contempt of court.

The recent ruling of the Supreme Court finding the three lawyers guilty of Contempt and National Court convicting the Governor of Gulf for misappropriation confirms the Courts are no longer stuffing around. Yes you can delay the process but in the end justice prevails.