PNG COURT: KULUNGA CAN REMAIN AS COMMISSIONER

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Status quo to remain until government legitimacy resolved

By Todagia Kelola PORT MORESBY, Papua New Guinea (PNG Post-Courier, Jan. 26, 2012) – The Supreme Court will now take charge of all "politically motivated court proceedings" that are currently on foot in the National Court.

Yesterday the National Court referred the question on ‘who is the legitimate Government’ to the Supreme Court to settle, stating that it has limited powers in answering some serious constitutional questions pleaded in its jurisdiction.

Senior Judge Justice Catherine Davani presiding over the Yakasa-Kulunga matter made the reservation using her powers under section 15 of the Supreme Court Act when handing down her decision on four applications by parties involved in the matter.

But in her decision she clearly stated that: "I must emphasis that the status quo is that Mr. Kulunga will continue in his role as Police Commissioner until these Constitutional issues are properly determined. The plaintiff can continue to perform his role ‘as a policeman’ (re: Court Order) until the constitutional issues are resolved. I trust all parties will maintain some civility about this until after the Supreme Court decides."

Her decision also effectively stays other National Court proceedings taken out by Gabriel Yer, Hudson Ramatlap, Joseph Klapat and Graham Osborne from being heard in the National Court until the matter is determined in the higher court.

[PIR editor’s note: Davani has also said that Kulunga must not abuse his powers as police commissioner by taking steps against Fred Yakasa. In addition, the order filed in December providing that Kulunga and his personnel were not to arrest, harass, intimidate or interfere with Yakasa and his subordinates continues to be in effect, although Yakasa and his men were not immune from charges if they engage in criminal activities.]

In a 34 page judgment, Justice Davani discussed each motion moved by all parties, including the plaintiff who made two applications for an amendment to its notice of motion and an extension of the interim orders.

Other motions were made by the State to dismiss the proceedings because of lack of section five notice, Speaker of Parliament to join as a party and Peter O’Neill and National Executive Council (NEC) to join as party.

In her decision on the amendments, she stated that, "It goes without saying that the present two (2) Police Commissioners are in office based on appointments done by the Somare Government and the O’Neill Government. The Somare Government relies on the Supreme Court’s decision in SCR 03 of 2011 that it is the legitimate Government. The O’Neill Government relies on the amendments to the Prime Minister and National Executive Council Act which declared among others that, as at 2nd August, 2011, there was a vacancy in the office of the Prime Minister and that the election of Peter O’Neill as Prime Minister on 2nd August, 2011, is valid and effective, such amendments being retrospective to 1st January, 2011."

"Will the proposed amendments determine the real questions in controversy between the parties? And of course, what is the real question in controversy between the parties? It goes without saying that both the plaintiff and the first defendant are adversely affected by the recent events that I referred to above. The plaintiff believes very strongly that the Supreme Court’s decision is binding. Whereas the first defendant, relying on actions taken by the O’Neill Government in amendments to the Prime Minister and National Executive Council Act 2002 and representations made by the O’Neill Government that it is the legitimate government of the day, also believes strongly that his appointment as the Commissioner of Police was legitimately done.

So, who is correct?

"I should state at this time that Fred Yakasa and Tom Kulunga are not the only career public servants who have been affected by these recent events. Other career public servants who have also filed applications, which are pending before this Court, are Gabriel Yer and Hudson Ramatlap. Another related proceeding is that filed by Graham Osborne."

Leave was granted for the amendments. As to the States motion on the lack of section five notice, the application was dismissed.

The two joined applications were granted leave with the reason that because she as a National Court Judge doesn’t have the powers to interpret the various constitutional provisions raised by all counsels a useful purpose will be served if parties are allowed to join giving them standing in the Supreme Court to ensure all issues are placed and are properly argued in the Supreme Court.

On the Interim Orders Justice Davani stated that: "In my view, the plaintiff’s actions has revealed that there are serious issues to be decided by the Supreme Court before this Court can proceed any further. This also applies to the other affected proceedings. The Interim Injunctive Orders must continue as there are serious questions to be tried."

She reserved six questions to be answered in the higher court.

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