Court removes ban on judges

The National,Thursday 12th April 2012

By JACOB POK
THE Supreme Court yesterday stayed a decision by parliament to suspend Chief Justice Sir Salamo Injia and Justice Nicholas Kirriwom.
The two senior judges will continue with their normal duties pending the determination of a Supreme Court reference filed by the Morobe provincial government questioning the validity of the new law. 
Parliament last week used the new judicial conduct law to suspend Sir Salamo and Kirriwom. 
According to the new law, the two judges would be suspended while parliament advised the head of state to appoint a tribunal to investigate whether the two had breached the law by continuing to hear cases even after being warned of the “apprehension of bias”.
The stay order was handed down by a three-man Supreme Court bench comprising justices Panuel Mogish, George Manuhu and Don Sawong. 
The order restrained parliament from enforcing section 5(2) of the new law – its next step to refer a judge to the head of state who will appoint a tribunal to investigate a judge for breach of the act.
The order states that “the effect, force, operation and implementation of the whole act is stayed and the chief justice and Kirriwom shall hear and continue to hear legal proceedings and exercise all their powers as chief justice and judge respectively and all or any of their judgments or order shall continue to have full effect and be in force”. 
On Tuesday, Prime Minister 
Peter O’Neill had assured protes-
ters in Port Moresby parliament would repeal the new law but on the condition that Sir Salamo and Kirriwom stepped down from their offices as judges. 
The Morobe provincial execu­tive on the same day made an application in court, along with a special reference, to seek the Supreme Court’s opinion on the validity of the new Judicial Conduct Act. 
Lawyers representing the provincial executive argued that the new law was in conflict with the Constitution and an attempt to unduly punish judges.
They said there were existing provisions in the Constitution and relevant laws which dealt with disciplinary measures for judges as regards their conduct.
Lawyers representing O’Neill, Attorney-General Dr Allan Ma­rat, MPs Moses Maladina and John Boito argued that the application was a rare case and should be dismissed.
The bench said the judges were constitutional office holders and that the act in question was not a constitutional law. 
They agreed that there were serious constitutional issues on the validity of the new law. 
The judges ruled that “the Constitution gives us, as members of the Supreme Court, the mandate to interpret the Constitution and the laws of the country and give paramount consideration to the dispensation of justice”.
“We took our respective oaths of office to uphold the Constitution and the laws of the independent state of Papua New Guinea and do right to all manner of people in accordance therewith, without fear, favour, affection or ill-will and we remain committed to our oaths and the dictates of the Constitution.” 
They said although the act had been passed, certified into law and in full effect, the Supreme Court could consider any challenge to the constitutional validity of the act and any interim relief in the interest of justice.

Woodlark Lease Quashed

May 07, 2012- Post Courier

By TODAGIA KELOLA

THE National Court has quashed a decision by the National Lands Board and the Minister for Lands in awarding a company, Vitroplant,three agriculture leases to plant palm oil on Woodlark Island.


The decision by the Lands Board and the Minister was quashed after another company Woodlark Mining challenged the decision on the basis that it also has three exploration licenses over the same land in question.Woodlark Mining has been conducting mineral exploration on Woodlark Island, Milne Bay Province since 1980, and it continues to hold three (3) exploration licenses, i.e EL1279, EL1465 and EL1172.
The other company Vitroplant is a company incorporated in Papua New Guinea, Vitroplant applied for three agricultural leases to plant oil palm on Woodlark Island.

In May 9 2007, the then Minister for Lands and Physical Planning, the Dr Puka Temu, granted Vitroplant the three agricultural leases.
Vitroplant had proposed to plant oil palm on 60,000 hectares of the Woodlark Island. The agricultural leases encompass all that land which Woodlark Mining was holding exploration license for on Woodlark Island. The agricultural lease was issued despite Woodlark Mining holding exploration licenses for the Island.
Woodlark Mining had submitted that it had exploration licences for the land and therefore, the land was not available for leasing by the State and as such the leases should be set aside.

Deputy Chief Justice Gibbs Salika who presided over the matter in his decision stated

 “I have no doubt in my mind that, had the Department done a due diligence check on the subject land it would have found that the land already had mining exploration licenses over it, that is at least EL1279 and EL1172.

In granting Woodlark Minings Judicial Review application he said

“The plaintiff in my opinion did have substantial interest in the subject land and ought to have been informed or notified of what was going on especially notification of the meeting to consider Vitroplants application for Agricultural lease.


“In this case the plaintiff made the submission that it had pre-existing mining exploration tenement over the same subject land. Therefore the land was not available for leasing. The Land Board fell into error in not according or granting any opportunity to the plaintiff to be heard and secondly as a result of the failure fell into error in granting the Agricultural Leases.”

Court registrar charged

The National, Tuesday 13th March 2012

By JACOB POK
NATIONAL Court registrar Ian Augerea was arrested by police yesterday and charged with attempting to pervert the course of justice. 
Police picked up Augerea at around 8am and took him to the police headquarters to be interviewed.
He is implicated in the case which also saw Chief Justice Sir Salamo Injia appear in the Waigani Committal Court last week.
It was in relation to a complaint lodged in 2009 with the national fraud and anti-corruption squad by Timothy Moere Sarri Junior, the adopted son of former judge Timothy Hinchliffe. After the judge died, he left his estate to his adopted son.
Justice Mark Sevua granted the probate of Hinchliffe’s will to Timothy.
But police alleged that Sir Salamo, Augerea and others conspired to pervert the course of justice by circumventing the order by Sevua on May 11, 2009.
Sarri said before his adopted father died, he signed a will in his name. He then engaged Judy Nandape and Associate Lawyers to apply for the will of probate in the National Court to have the entitlements paid to him.
Sevua ordered the National Judicial Staff Services to pay Sarri a sum of K213,069.90.
The NJSS raised a BSP cheque for that amount, dated June 19, 2009, and made payable to the lawyers.After the cheque was paid to the lawyers, Sir Salamo was said to have directed Augerea to recall the cheque from the law firm. The cheque was cancelled and a new one was raised for the same amount and paid into the NJSS trust account.
After he was interviewed, Augerea was released on his own recognisance.
The arrest comes after Police Commissioner Tom Kulunga  defended last week’s arrest of Sir Salamo, saying police had been prevented from investigating him since allegations were first raised in 2009.

Court rejects Somare’s appeal

The National, Tuesday 21st Febuary 2012

By JACOB POK
THE Waigani Supreme Court yesterday dismissed a bid by Angoram MP Arthur Somare to stop a leadership tribunal from hearing misconduct allegations against him. 
Justice Bernard Sakora found that the application to stay the tribunal was an abuse of court process and without merit. 
He ordered the leadership tribunal to reconvene. 
Somare first made an unsuccessful attempt last year to stop the tribunal in the national court. His appeal was thrown out then and he further appealed to the higher court to review former’s decision. 
His lawyer Goiye Gileng filed an application for stay on the basis that documents in relation to his client’s referral were signed by state prosecutor Kathwa Umpake and not the then acting public prosecutor Camillus Sambua.
He asked whether the tribunal had the jurisdiction to deal with the referral signed by a state prosecutor when the Constitution required the public prosecutor to sign the referral. 
Gileng argued that the National Court judge had erred in his decision when dismissing the appeal and asked the Supreme Court to review this decision.
State lawyer Sam Koim argued that the issue of signature on documents or the referral did not alter or affect the contents of the referral. 
He argued that there was no arguable case in the appeal and should be dismissed. 
He said the tribunal had been unnecessarily dragged on.
Yesterday, Sakora, in a lengthy ruling, found that Somare’s appeal was unnecessary and without any arguable grounds. 
He explained that the state prosecutor had the right to sign documents on behalf of the public prosecutor like they do when prosecuting any other criminal cases in courts. 
“Duties and functions of state prosecutors prosecuting indictable offences also apply to misconduct cases.
“Umpake’s action was not unconstitutional … he carried out his legitimate duty as a state prosecutor on behalf of his legitimate office,” Sakora said.  
He said such appeal should be made when there was instances of a life and death situation and not loss of office. 
“Loss of office is not the same as loss of life, or serving years in jail.”

Court to hear special references

The National, Thursday 09th Febuary 2012

By JACOB POK and ANGELINE KARIUS
THE Supreme Court will begin preliminary hearings on two special references relating to the legitimacy of  the government from next Monday. 
This was decided by a three-judge bench hearing a series of cases relating to political developments in the country which led to wrangling between Sir Michael Somare and Peter O’Neill over who should be running the country’s affairs.
The courtroom was packed to capacity again yesterday as the bench headed by deputy Chief Justice Gibbs Salika, Bernard Sakora and Nicholas Kirriwom gave directives on how to deal with the 14 related cases before the court.  
The judges issued a blanket stay on all other cases while they focused on the two references –SCR 1 of 2012 filed by Dr Allan Marat and SCR 2 of 2012 filed by parliament. 
Sir Michael’s lawyer, Kerenga Kua, yesterday also raised a question of competency on whether Marat, O’Neill’s appointed attorney-general, had the right to file a reference. 
This would be among other questions to be raised in the next sitting of the Supreme Court. 
Among the 12 cases stayed was an application to discharge orders concerning the suspension of Chief Justice Sir Salamo Injia. 
The court will later decide on a time length of the proceedings, appoint a penal of judges to preside on the cases and clear other preliminary issues before the substantive hearings. 
The reference filed by Marat consists of 29 constitutional questions relating to the actions of parliament since Aug 2 last year. It was when parliament passed a motion to create a vacancy in the office of the prime minister that subsequently removed Sir Michael from the post and appointed  O’Neill as prime minister.
The questions in the references seek the courts opinion on whether parliament had erred in any of its decisions or did anything outside of the constitution.
The questions include whether or not the MP’s seat becomes vacant when the MP is absent from three consecutive parliament secession, whether parliament had inherent power to elect a prime minister when the incumbent abandons the post, whether section 134 of the Constitution prevents the Supreme Court from making orders that dictate the duties of parliament and other relevant questions. 
Rimbink Pato, a lawyer representing a party in one of the cases, said he supported the stand by Kua. 
Pato suggested that the fastest way to deal with all the cases was for the Supreme Court to establish a legitimate attorney-general and prime minister first before references were heard.