The first was done by Mr Justice Andrew and the second, which is currently in progress, is headed by Justice Los. The Los Commission has wide terms of reference and is probing most of the important issues. I do not wish to say anything on that inquiry. Any member of the public, who can assist the commission with relevant information, is entitled to go to the commission and provide such information.
There is, however, one very crucial matter that is not in the terms of reference of the Los Inquiry. That relates to the actions of the PNGDF.
The PNGDF, with Commander Singirok, went against the executive government of the day. Armed members of the Force surrounded the National Parliament and held members of the legislature hostage for a night. This is a glaring omission in the terms of reference for the Los Commission.
I wish to comment on this first because there are some very important issues involved. There is a second related incident.
On July 28, 1997, certain members of the PNGDF, again armed, went to the Boroko police station and forcibly released Major Walter Enuma from the station lock-up. On the same day, it was reported that the new Skate government announced that it would grant amnesty to PNGDF personnel and NGO representatives involved in the Sandline demonstrations, from criminal prosecutions. A day later, the government sought to explain its earlier decision - that there was no amnesty but that the issues would be dealt with after a second commission of inquiry.
As stated earlier, the second inquiry's terms of reference do not make any reference to the actions of the PNGDF being investigated. The only part of the terms of reference that comes close is paragraph (5), which calls for investigation into whether Singirok acted within his authority when he ordered the Sandline contract to be aborted.
RECENTLY, THE FORMER DEFENCE MINISTER disbanded an internal inquiry within the PNGDF. Where does this leave any investigation into the actions of the PNGDF? Who is to investigate their conduct? What action is to be taken against them?
There are very serious legal and policy questions.
First, the army went against the executive government of the day.
Second, members of the supreme constitutional body - the National Parliament - were held hostage.
Third, a serious criminal offence was committed by members of the PNGDF in releasing a prisoner from police custody with force.
Fourth, the new government appears to have interfered with the performance by the police of their constitutional functions by preventing prosecution of offenders like individual soldiers who broke the criminal law.
The first Sandline Inquiry, headed by Justice Andrew, raised more questions than it answered because of the restricted terms of reference. Nobody could be said to have been cleared by that inquiry. Prime Minister Skate did well to ensure in the terms of reference of the second commission that issues raised in the first inquiry be further investigated. Serious questions were raised by the Andrew Commission as to the conduct of many public officials, both politicians and senior civil servants.
WHEN GENERAL SINGIROK, on March 17, 1997, called on Prime Minister Chan to resign and when he ordered the termination of the operation on Bougainville by overseas personnel and the detention of those personnel, he did this at great personal risk. This risk was not only to his career but he went against the decision of the executive government, which by law he was obliged to follow, thereby risking breaking the law.
Did he break the law? That question, as stated above, is not in the terms of reference of the Los Inquiry.
Singirok received the support of ordinary Papua New Guineans because he was seen to stand up to corruption.
To many Papua New Guineans, even now, the actions of Singirok can be excused. But, that excuse must be given by the law, not by the opinion of the public. The courts, which enforce the law, must look at the conduct of Singirok and make a decision on his fate. It cannot be left to public opinion.
Of course, public opinion can be taken on board by the Parliament and it can change the law to excuse Singirok if it deems in its wisdom that this is the right thing to do.
The point is - the actions of Singirok must be judged by the law.
In the laws of many countries, there are some laws which seem ridiculous. In PNG, we have one that, I think, is ridiculous. Under the criminal code, there is a criminal offence called 'attempt to commit suicide'.
If you try to kill yourself by doing whatever and if you do not succeed, you can be charged for attempting to commit suicide. Where does that leave you? If you want to kill yourself, you better make certain you succeed, because if you do not, you will be charged and imprisoned for attempting to kill yourself - for failing to kill yourself.
I have cited the above as a parallel to the actions of Singirok. The actions of Singirok were like the law on attempted suicide. He did not seek to overthrow the government and assume practical and legal control (I am not advocating that he should have). In such event, with the appropriate recognition (both domestic and international, if he could get it), the law would have sort of excused his actions.
By going far short of that, Singirok put himself at the risk of being charged for breaking the law.
Under PNG's constitution, the legislature is the supreme body. The legislature, that is the National Parliament, is the single most important organ under the Constitution. It is important because it makes the laws of the country. It can change any parts of the Constitution. It also has powers similar to the courts - to cite any person for contempt of the Parliament. Also, the executive government is drawn from the National Parliament, in that the Prime Minister is elected by the Parliament and the Ministers are members of the Parliament.
Members of this supreme body were held hostage by armed members of the PNGDF when soldiers marched on Parliament.
Whatever the reasons or justifications were, should this action be buried as if nothing happened? It should not. It requires serious investigation and action. This was a serious breach of constitutional democracy and those responsible must be dealt with.
What guarantee is there that it will not happen again?
There is nothing being said about the PNGDF personnel who released Major Walter Enuma from the Boroko police station. They were armed when they freed Major Enuma. They clearly committed a serious criminal offence.
Isn't this a law and order problem? Should they not be dealt with, along with all others who broke
the law one way or another in the Sandline Affair?
The government of the day has no powers at all to delay, suspend or stop police carrying out their duties in enforcing the law. The government has no power to grant amnesty to anyone either. Only Parliament can do the latter, by passing laws to this effect. That is exactly the reason why the government could not lawfully grant amnesty to soldiers and Bougainville rebels implicated in criminal behaviour on Bougainville.
The fact that a commission of inquiry is investigating matters related to Sandline does not mean that the police should not proceed with performing their functions.
These are two different bodies, performing different functions. In any case, the term of reference of the second Sandline Inquiry do not include investigations into actions of the PNGDF.
THE POLICE FORCE, in its law enforcement powers (arrest and prosecution), is an independent body. Except for control by Parliament through legislation, nobody, not even the National Executive Council, has the power to direct the police (and public prosecutor) in their prosecution functions.
In 1982, the Supreme Court ruled in the case SCR No. 1 of 1982; Re: Philip Bouraga that whilst the National Executive Council can give directions to the police on general policy areas as permitted by Section 197 of the Constitution, directions cannot be given in relation to their prosecution functions, which include the power to arrest and charge offenders suspected to have committed
criminal offences.
At the end of the day, the law must prevail. No person is above the law. The law exists to regulate society and to keep order. Those who are implicated in breaking the law must be dealt with under the law.
If laws are ignored for any particular convenience, there will be disorder. That is a law and order problem nobody welcomes at all in this country.
Professor John Nonggorr is head of clinical law at the University of Papua New Guinea and a columnist for The National.
