The ‘Moti Affair’ isn’t over for Papua New Guinea, warns SUSAN MERRELL
Legend has it that Italian courtier Damocles was awarded a much-coveted throne that brought with it great power and wealth. But also inherent in the acquisition was a sword, suspended by a single horse's hair over the throne - the proverbial 'Sword of Damocles'.
Considering the threat intolerable, Damocles relinquished the throne(although I've never quite understood why he didn't just remove the sword).
There are outstanding issues,precariously suspended,like the Sword of Damocles, over the Papua New Guinea government.
The Moti Affair, for instance –while a legacy of the Grand Chief, Sir Michael Somare, unresolved, it's now been passed on to the new PNG government and, in its current state, will dog any subsequent government.
Recent Wikileaks cables emanating from the US embassy in PNG are a reminder.
In one cable, headed 'Papua New Guinea Prime Minister on Moti and Bilateral,'Somare stated that the PNG government "knows who the culprits are [in the Moti affair]."
He criticised the Australian Federal Police for bypassing the office of the Foreign Minister and of the Prime Minister by going directly to the PNG police who co-operated with the Australians in an arrest that was without a warrant and with extradition papers that were "not properly authenticated."
"I can't put up with this type of nonsense, "said Somare. " If I'm wrong on questions of law, I admit it. I was not wrong."
At the time, the then and current attorney-general Dr Allan Marat, and Morobe Governor Luther Wenge, a former acting Judge, went further adding that PNG should take Australia to task in the International Court of Justice.
Two subsequent governmental inquiries, the Defence Inquiry and the Ombudsman's Report drew similar conclusions on the matter of Moti's arrest.
However, the Reports also found that Somare had a case to answer in the matter of Moti's clandestine Defence Force flight out of PNG. These findings have threatened Somare's tenure as Prime Minister since the reports were finalised.
Influential commentators such as Professor John Nonggorr, a leading constitutional lawyer, suggested that Somare should have stepped aside over the affair: like Damocles he should have relinquished the throne.
Conversely, Somare chose to negate the effects of the reports by challenging their legitimacy. He was successful. The Ombudsman's report was rejected in Parliament and the Defence Inquiry was discredited factually and legally.
Somare metaphorically succeeded in putting extra distance between himself and the sword butit's still there and it won't go away while the matter is not appropriately addressed. It's an ominous and unwelcomepresence for whoever takes up the mantle of government.
For notwithstanding who was to blame for Moti's illegal arrest, the buck stops at the PNG executive. As a sovereign nation, PNG bears direct responsibility for the conduct of its agencies, regardless of whose interests they were serving at the time.
This could be an expensive lesson.
For, in March of 2010, The Sunday Chronicle reported that Moti's PNG lawyer was seeking an invitation to present a quantum of damages for settlement to the solicitor general. Compensation – the justice system that oils the wheels of Melanesian society.
Peter Pena Lawyers, cite breaches of International law, Common law and PNG law including defamation, false imprisonment, conspiracy to pervert the course of justice and other charges suggestive of human rights abuses.
To date, no compensation claim has been lodged.
The question of redress for Julian Moti is a vexed one. The Moti Affair has gone on for so long and has been before so many courts and Inquiries in PNG that one wonders how impartial PNGs judiciary can be should Moti decide to sue the state?
After all, it was Justice Kofi in the district court that first refused to entertain the facts put to him by Moti's lawyers (later deemed to be correct by the Ombudsman's report) that Moti was wrongfully before that court.(Ironically, Chronox Manek, the Chief Ombudsman responsible for the Report was the enthusiastic Public Prosecutor at the time of Moti's arrest)
Later, Justice Cathy Davani needed an extra two weeks to 'acquaint herself with the facts" on Moti's case – during that time Moti was flown out to the Solomon Islands, when PNG could no longer guarantee his safety. How much bearing on the decision to fly Moti out was precipitated by the lengthy court delay?
Subsequently, Deputy Chief Justice Salika, headed up the discredited Defence Inquiry Report with the now Justice John Kawi as his leading counsel.
In fact, so many members of PNGs judiciary have actively taken a part and/or expressed opinion on issues of the Moti Affair(such as Justice Sakora who coined the phrase 'Motigate') that to suspect prejudice is reasonable.
The PNG government should take the lead - relieve the PNG courts of this responsibility, use executive powers to divest itself of this negative legacy – remove the Sword of Damocles before it does more damage.