The current political impasse in PNG can
best be summed up simply as a dispute between the judiciary and the
executive.
The judiciary have under their arm the PNG
Constitution and are using it as a WMD (weapon of mass destruction) with the
approval of Sir Michael Somare who has most to gain by adherence to the letter
of it in the present context.
On the other hand, the O'Neill/Namah
government are claiming the moral high ground with their popular mandate backed
up by their legislative prowess – thwarting and overriding the Constitution at
every turn.
Part of the O'Neill/Namah strategy has been
to call into question the integrity of the judiciary with repeated attempts to
suspend the Chief Justice for impropriety.
Indeed the Chief Justice himself has done the same by refusing to recuse
himself from the cases where there has been a glaring conflict of interests.
The Moti case in parliament is a complete
change of tack by O'Neill/Namah. Instead
of attacking the judiciary, O'Neill/Namah government have decided to hoist the
Grand Chief by his own petard - using the Moti case.
The Moti case brings up allegations of
breaches of the constitution and the law by Somare, especially over the PNGDF
flight that took Moti to the Solomon Islands from PNG in 2006.
If found guilty of the breaches, no more
will Somare be able to fashion himself as a champion of the constitution thanks
to the Defence Inquiry and the Ombudsman's Report on Moti.
But hold on. The judiciary is only one arm of the
government (something the O'Neill/Namah faction has been quick to emphasise
lately when it flatters their own prejudices) and what Somare did was well
within his power as the Chief Executive of Papua New Guinea and was not so much
about exercise of power as the fulfilment of international obligations.
Somare was obliged to do what he did
because Papua New Guinea is a signatory (Acceded in 1986) to the Convention on
the Status of Refugees 1951 (revised in 1967).
Evidence also points to the fact that that
judicial mistrust is not a new or isolated phenomenon in Papua New Guinea and
could well have been in play in 2006.
Political
asylum in PNG and the courts.
The ‘Convention’ defines a refugee as
someone who has a “…well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion.” When Moti sought political
asylum in the Solomon Islands chancellery in Port Moresby he had every reason
to believe he qualified for reasons too numerous to mention here but reasons
which, nevertheless, been well-publicised both by myself and other
commentators.
Furthermore, to establish Moti’s status as
a refugee, a diplomatic letter informing the government of PNG that the Solomon
Islands government had granted diplomatic asylum to Moti was quickly despatched
by the then Prime Minister of the Solomon Islands, Manasseh Sogavare. He stated:
“…Mr. Moti must be given diplomatic
protection and offered sanctuary on our sovereign soil [the Solomon Islands
Chancellery in Port Moresby]. I trust that you will do the needful for him
while we secure judicial orders for his release and safe transit from Papua New
Guinea to Solomon Islands”
But, why involve the judiciary at all?
Article 33 of the Convention on the Status
of Refugees clearly states and establishes the principle of ‘non-refoulement’
whereby “no contracting state [PNG and the Solomon Islands] shall expel or
return a refugee in any manner whatsoever to the frontiers of territories where
his life or freedom would be threatened on account of his…political
opinion.”
Why were the PNG courts even contemplating
the extradition of Moti to Australia?
Consider: the morning of the day that Moti
was flown out of PNG, Justice Cathy Davani had decided to adjourn the court
case for two weeks in order to apprise herself of the appropriate law. Well,
she’s either very busy, a really slow learner or there was another imperative,
especially as Moti’s continued residency in Port Moresby was problematic for
all concerned.
So whose interests were served by this
curious delay?
Moti’s delayed arrival in the Solomon
Islands would have meant him being unavailable to advise the Solomon Islands'
Prime Minister on an upcoming vote of no confidence. Was that just pure
serendipity for the Australian authorities who had been doing their utmost to
destabilize this government that was so openly antagonistic toward them?
The
role of the executive
Moti’s asylum and safe passage to the
Solomon Islands could more correctly have by-passed the courts and been handled
at an executive level – government to government and diplomatically.
And, according to the two inquiries, the
PNG executive did, in fact, do this. However, the inquiries, rather than
supporting the actions, have found against them. The then Prime Minister has
not been praised for his actions, but vilified.
Surely, the onus was on him to make sure
the sovereign state of PNG honoured its own international obligations and not
subjugate them to Australia’s agenda.
Furthermore, the use of the PNG Defence
Force to carry out such an operation is in direct accordance with the
Constitution of PNG where one of the functions of the Defence Force is “…the
fulfilment by Papua New Guinea of its international obligations.”
Nevertheless for the PNG executive to pre-empt
a court decision, there must have been powerful imperatives.
For me, this is the most compelling
evidence that the Grand Chief had misgivings about the neutrality of the PNG
courts.
Sir Michael certainly had misgivings over
who was commanding his agencies.
“Police goes and does this,” he said in the
press at the time about Moti’s arrest, “who are they listening to, who is
commanding them?” PNG is a sovereign nation; a Prime Minister shouldn’t have to
ask that question.
Was it the force of Australian insistence
that was making the tail wag the dog in PNG?
Was
undue Australian interest evident in the Defence Inquiry and the Ombudsman's Report?
The accusation of undue Australian interest
in the Moti case has been one of the abiding concerns of Moti's lawyers, one of
whom has commented:
“Has it ever occurred to anyone, that this
generous aid we receive [in PNG and the rest of the Pacific] could be a
fishbone stuck in the judicial esophagus of our courts, an unnecessary,
artificial and improper fettering or corruption of judicial discretion?”
Taking umbrage with the PNG Ombudsman’s
report (amongst other things), he pointed out that the Australian government
funnels millions of Kina into both Transparency International and the Ombudsman
Commission every year.
“Australia has created so much financial
rapport and institutional loyalty within these organizations,” said the
counsellor, “that in desperate times like this it can be called in.” Could this be precisely what happened?
For the Chief Ombudsman of PNG, Mr. Chronox
Manek, before becoming Chief Ombudsman was the recipient of a generous Ausaid
scholarship that funded his further education in Australia. Prior to this he
was the DPP that prosecuted the Moti case in PNG.
Subsequently, in the Ombudsman’s Report, he
found that Moti should not even have been in that court as his arrest was
unlawful. However, at the time it did not stop him from yelling “belt the shit
out of them,” - 'them' being Moti’s lawyers on hearing that Moti was not in court
the morning after he'd been arrested at Jacksons Airport.
Manek's enthusiasm for this task was
equally matched by the Australian authority’s enthusiasm to have Moti
extradited to Australia
If
it's good for the goose…
In this current political impasse, not
everything the judiciary has done is right nor everything that the executive
has done wrong. But equally, as in this
current situation, so it is for the situation that occurred with Moti in 2006.
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