The law, the police and the judiciary

The following article by Peter Donigi will make you cringe but that is the reality of how the judiciary system works these days in a place non other than Papua New Guinea - the nation that is tantamount to "The land of the Unexpected" where anything can happen that could blow your mind off. It seems to me that there are no laws in Papua New Guinea. If there are laws, are they being followed and those who don't being brought to justice? Growing up in Papua New Guinea, I know laws do exist.

The sad part of having these laws is that only ordinary citizens are abiding as well as following the rule of law (well in most areas in PNG) while the well-to-do and affluent are not. In other words, most writers and ordinary citizens would often refer to as Papua New Guinea having "two sets of laws - one for the grassroots and another for the big fish".

If ordinary people can follow the laws and those that are not are being prosecuted, what about the rich who steal from the people's coffers? Somare's recent cases, for example; will never be heard let alone him being prosecuted. Mark my words. That to me smells corruption at it's worst. That's why it will make you cringe when you read the article below.


The law, the police, and the judiciary - the Papua New Guinea way: By Peter Donigi


WHY did I cringe when I read The National (Dec 18) and have this feeling of foreboding?The headlines on the front page read: “Met Supt lays down the law – six arrested … in Sir George’s murder”. Page 2 headlines read: “Chamber calls for Tete to be razed”, “Settlement’s future under the spotlight”.The Page 3 headlines read: “Yakasa slams soft judiciary”, “PM mourns loss of good friend”, “Simbu villagers await K5 million compensation”. And Page 6 read: “Kali – Lupari’s claims quadruple dipping”, “Police question Yawari over assault on landlord” and a condolence message from Global Construction on Sir George’s untimely passing.Let me now deal with each item and show why I have this sense of foreboding.All statements calling for action against the Tete settlement are charged with emotion. That is allowable. But we must remember that we have a Constitution and this country is founded on democratic principles and the rule of law.

It appears, however, that certain sections of our community have decided to appoint themselves as police, prosecutor, judge and executioner all rolled into what was once a questionable act in the deep south of the United States – the lynch mob.It is not my place to defend the judiciary. That is a task that is best reserved for the president of the PNG Law Society.My sense of foreboding stems from the fact that the law enforcement agency is now challenging the judiciary while it is rightly the role of the law enforcement agency to collect, analyse, collate and present the evidence before the court of law. The failure is not entirely with the judiciary. In fact if one is to carry out an appropriate research as to why cases are thrown out of court, one will be surprised to find that they were thrown out because of the lack of performance by the members of the law enforcement agency.

The frustrations experienced by the police and expressed by metropolitan police commander Supt Fred Yakasa is not a creation of the judiciary. He is now engaged in what those schooled in psychology will call “projection”.This is the projection of guilt towards another person and creating a facade which will be perceived as correct and justifiable. It is a prelude to justifying one’s failure by projecting that failure onto a third party. I cringe because Yakasa’s statement that he has “set down the law – no bail for indictable offences” is a public statement that attacks the integrity of the judiciary. It portrays to the public at large that he is the one who has the right and ultimate power to lay down the law or to determine whether or not accused persons are entitled to the benefit of doubt until proven guilty and, until that happens, that person is entitled to protection of the law including the right to bail. In reality, Yakasa does not have to the power to determine bail conditions.

That power is reserved for the committal courts. So Yakasa, in his outburst, is projecting his ignorance of the law. His statement that “the judiciary and the law and justice sector thought that they were an island on their own” is also a mis-statement of reality – by being a member of the police force, he is also a member of the law and justice sector.Yakasa’s outburst signifies his ignorance about his role, as a member of the law and justice sector.He then went on to suggest that people steal millions of kina and are allowed back on the streets. What about all the white collar crimes that we, the public, are still waiting for to be investigated by police and prosecuted?Everything in court falls on the evidence produced by members of the police. How many times have we read about police witnesses not appearing in court to give evidence resulting in the dismissal of cases?

How many times have we read about missing evidence resulting in the release of prisoners?Courts alone cannot act without the appropriate evidence secured in accordance with law and presented in accordance with law before a court of law. Then we are confronted with the evidence about Lupari’s alleged “quadruple dipping” supported by the former solicitor-general and we are left with awe.Are we to believe there is no conspiracy to defraud the State? l From Page 50Then again we read about police questioning Yawari about an assault on his landlord and the former governor’s statement to the victim in the following words “And, don’t use police to help you to move me out.

You can go to the higher court to order me out. You can even charge me for contempt of court but I will not move out”.That statement creates a perception that Yawari has influence with the police and will not obey a court order to move out. So you see why I now cringe and have this sense of foreboding? When leaders appear to have influence over the law enforcement agencies against the rights of ordinary citizens and when leaders will not obey court orders and when police refuse or are reluctant to enforce court orders, we set the foundation for failure of the rule of law in our community and bring in the law of the jungle. No wonder, investors and business community refuse to enter into contracts with Papua New Guineans because they say we never honour their contracts.

The Yawari case justifies investor concerns about the rule of law in this country and their reluctance to enter into contracts with Papua New Guineans. The case also serves as a warning against leasing properties to people who think like Yawari. He is a leader and should be seen to be acting within the law and not challenging a court order by using illegal means. There are legal ways of challenging the eviction order. He should resort to those methods.What about the Simbu compensation claim for the road? Compensation is becoming a generational issue. Parliament should pass a law whereby compensation is paid only once for land acquired for public roads. And the rate should be K1 for one sq metre.Secondly, roads should be constructed only to areas where landowners have agreed to give up their land. Thirdly, the Government should impose monetary penalties to be drawn from sales of all produce generated by members of a community that blockaded a public road.

The penalty cannot be imposed unless there is an identity card system introduced in this country where all citizens are required to carry. The ID card will also be used to control movement of people in and out of towns and cities. Peruvian economist Hernando De Soto once said the difference between a developed country and a developing country is that in a developed country, everyone has an address. In a developing country only the dogs know the boundaries of their master’s house or property.

For PNG to progress from a developing country to a developed country, we must include in our national development plan, the objective of creating an address for every citizen of this country. It is only by having an address, that we can require the members of the police force to obtain a search warrant to enter our homes.We have a system of government that is based on the Westminster model. This model is founded on the rule of law and Section 32 states that a person can do anything that does not interfere with the rights of others or that is not prohibited by law. We cannot hope to bring this to fruition without creating an address for every person. An address gives dignity to an individual and facilitates application of the rule of law in an even handed manner.

Note: The writer is a consultant with a legal firm.

Source: Opinion: My say, The National