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PNG: O’Neill vows to ‘fight to the death’

Tuesday 1 July 2014 | Published in Regional

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PNG: O’Neill vows to ‘fight to the death’
Papua New Guinea's Prime Minister Peter O'Neill is fighting for political survival.

The court battle over the arrest of prime minister Peter O’Neill has Papua New Guinea captivated.

Will the increasingly frustrated Justice Ere Kariko grant a temporary injunction on the arrest warrant against the prime minister, or will he allow it to go ahead and let the police sort out the mess?

It is expected that question will be answered on Tuesday, when Justice Kariko makes a ruling.

But the complex courtroom dramas have also provided insights into the fractious police force, the resolve of the prime minister to defend himself and the determination of the judiciary to uphold the rule of law.

On June 16 police served an arrest warrant on O’Neill for allegedly authorising the payment of around $28 million for legal bills paid to Paraka Lawyers.

The allegation is that these legal bills were inflated or fabricated, and do not represent real legal work done for the government between 2003-2006.

O’Neill’s lawyer sought to temporarily restrain the arrest warrant, but not by directly challenging the warrant. Instead, she had the prime minister joined onto an existing case related to the controversial legal bills.

The case pits Papua New Guinea’s finance minister James Marape against Paul Paraka.

It is a “taxation” of the legal bills in question – which is legal jargon for an audit to decide whether the bills are legitimate.

Usually bills for legal services are automatically considered valid after 12 months, if nobody challenges them, and it has been seven years since this legal work was supposedly carried out.

O’Neill insists the letter authorising the payment is a fake. But, forgery or not, his lawyer argues that authorising the payment of bills that are technically considered valid can hardly be a criminal offence.

Justice Kariko has noted that corrupt practices could still be committed with valid bills, but this main part of the case could take months to be resolved.

In the short term, it does not matter.

What the prime minister’s lawyers are really after is to extend the restraint of arrest that protects Finance Minister Marape to also cover O’Neill.

O’Neill was added as second plaintiff to the Marape vs Paraka case on July 17 but the “urgent” question of whether to extend protection against arrest has dragged on for two weeks.

The main reason for the repeated adjournments has been the police department changing lawyers at every sitting, then requesting more time to catch up on the case.

By July 25, Justice Kariko had had enough.

“What has started as an urgent application in a court of law has turned into something else and it seems to have been brought on by lawyers,” said Justice Kariko as he refused yet another new police lawyer’s request for another 21-day delay.

The original police lawyer Nicholas Miviri was acting on behalf of then-police commissioner Tom Kulunga and argued that police should be able to arrest O’Neill.

That position changed when Kulunga was sacked and replaced by acting police commissioner Geoffrey Vaki.

Vaki’s lawyer Paul Mawa immediately told the court the police agreed with the stay on the arrest warrant – a 180 degree turnaround.

Effectively, the new police chief was against the police carrying out the court order to arrest O’Neill.

As these stop-start hearings continued, the judge issued a temporary injunction stopping the arrest of O’Neill but also – importantly – preventing any interference with those carrying out the corruption investigation.

While the temporary injunction order has restrained the arrest of the prime minister, there have been actions against those investigating the Paraka case.

The national executive committee – the O’Neill’s government’s cabinet –disbanded the anti-corruption agency Task Force Sweep and sacked several senior police officers.

One of them, former deputy police commissioner Simon Kauba, has filed contempt charges in relation to his sacking.

Justice Kariko said he will address these contempt issues as part of the Paraka audit of legal bills and has hinted the court may bring its own contempt charges.

By the time the court convened on July 27 it was hardly a surprise to see yet another lawyer representing the PNG police.

But as Mal Varitimos QC arranged binders of documents and placed a white horsehair wig on his head, it became clear someone had brought in a big gun – an Australian-based Queen’s Counsel with extensive PNG experience – to act for the police.

Varitmos presented the court with an affidavit from O’Neill promising to attend a police interview about the corruption allegations, provided the arrest warrant is restrained.

Throughout the case, Justice Kariko has said he needs to be convinced why a civil court looking at legal bills should interfere with a criminal matter.

He asked why a court should stop police carrying out their constitutional duty, especially if there was no challenge to the way the arrest warrant was obtained.

In a long, dry submission, Varitimos tried to convince the judge that he did in fact have the jurisdiction to carry out such an intervention.

Varitimos said the fact that the request for a police interview was accompanied by an arrest warrant was evidence of a presumption of guilt that defied the idea of natural justice.

He said the notion that pre-emptive arrests are part of police practice in Papua New Guinea is irrelevant in the eyes of the law.

Justice Kariko appeared to accept the jurisdiction argument but repeatedly questioned why the court should stop the police arresting O’Neill, when the new acting police chief has made it clear that he did not intend to arrest the prime minister.

“This is the police challenging it’s own actions,” said Justice Kariko. “Isn’t this a matter for the police?”

The fact Vaki is turning to the courts to prevent an arrest, illustrates the deep doubt the new police chief has about his ability to control the force.

The prime minister’s main lawyer Tiffany Twivey Nongorr took up this point of police division, saying there were “rogue officers” who might try to arrest O’Neill if the court didn’t freeze the arrest warrant.

She went further.

Twivey Nongorr argued that the court could help calm down the “internal struggle” for control of the police force, by ruling to stay the arrest warrant. She said this would be seen as giving legitimacy to Acting Police Commissioner Vaki.

If not, argued Twivey Nongorr, “we may have civil strife on our hands.”

The judge appeared dubious.

“I wonder if we are venturing into other areas?” asked Justice Kariko.

In an interesting side note, Marape’s lawyer said that even once the question of the arrest warrant was sorted out, it will be very difficult to audit the Paraka legal bills.

Lawyer Robert Leo said there are around 2500 bills for work supposedly done by Paraka Lawyers for the government between 2003-6, but they are not itemised or explained in detail.

It was a hint of another long and drawn out court battle for the future.

There are a few things to keep in mind as the saga continues.

Firstly, the contempt charges relating to the sacking of Kauba and possibly the disbanding of Task Force Sweep may or may not result in penalties, but legal experts say it is unlikely the court will order the reinstatement of police or reforming of the corruption investigator.

Secondly, O’Neill has publicly called for an investigation into the former chairman of Task Force Sweep, Sam Koim, and suggested comments during a recent trip to Australia breached his employment conditions at the Department of Justice.

Koim is widely held in high esteem by PNG’s international partners and by the public, making him a natural hero for those tired of corruption.

He must surely be bracing for a targeted campaign to neutralise his role.

Finally, the prime minister has not been found guilty of any crime and continues to deny authorising the $28 million payment.

His lawyer argues that it is ridiculous for a head of state to be arrested and the country thrown into chaos before being found guilty of a crime.

Day by day, in the courts and on the political front, Papua New Guinea’s prime minister has sought to slow down the unravelling of his power and to that end has been quite successful.

O’Neill still has an overwhelming majority in parliament and an acting police commissioner who appears to have no interest in arresting him, even if the courts sanction it.

There are many calling for the prime minister to resign, but an advisor told the ABC Mr O’Neill plans to fight this challenge “to the death”.