PNG and the Moti case

Normal, Weekender

The National, Friday, May 6, 2011

For PNG, the Moti case has highlighted how the sovereignty of a nation can be compromised when aid is used (and abused) to exert improper influence, writes SUSAN MERRELL


SINCE 2006, the most powerful nation in the Pacific, Australia, has been baying for the blood of former attorney general of the Solomon Islands, Fijian-born, Julian Moti.
Australia’s desperation to thwart the political aspirations of the Solomon Islands attorney-general elect in 2006 and to repatriate Moti to Australia to face dubious criminal charges involved PNG becoming inadvertently embroiled in a saga that was not of its making and one that has, subsequently, threatened to bring down a prime minister and has highlighted flaws in PNGs relationship with its major aid donor.
Who’s to blame?
Moti’s reported 2006 ‘escape’ from PNG to the Solomon Islands, has involved a lot of ‘finger pointing’ in PNG including precipitating a ‘Defence Inquiry’ and an ‘Ombudsman’s Report’.
Yet, no one in PNG has officially pointed that finger at the Australian authorities and questioned the way they conduct themselves extraterritorially.
For while Moti’s arrest (including his proposed extradition to Australia) was before PNG courts when he was flown out to the Solomon Islands by a PNG defence force plane, the real question was not who jumped the gun and gave the order to have Moti removed from PNG before the judgment was handed down, but, if the court was the correct forum for the matter to be dealt with in the first place?
The inquiries have progressed from the underlying assumption that someone in PNG flouted the law in helping the ‘escape’ and that someone’s head has to roll. It needs challenging.
For the catalyst for everything that followed was Moti’s arrest at Jackson Airport: an illegal arrest, the first and most significant flouted law and it had the fingerprints of the Australian authorities all over it.
The illegality of the arrest was later confirmed by the Ombudsman’s report. (The current Chief Ombudsman Chronox Manek was, ironically, at the time, the Director of Public Prosecution.)
Moti’s lawyers always knew it was illegal. Appearing in court the day of Moti’s arrest, they were asked by the magistrate to apply for bail for their client. They declined as it was their contention that Moti “was neither properly nor lawfully before [t]his Court,” according to a sworn affidavit.
Even in the face of overwhelming evidence, the magistrate did not dismiss the case and took it upon himself to grant Moti bail.
It was the fact that the court “…was reserving a very clear case of illegal extraction, illegal arrest, illegal detention and lack of jurisdiction…” according to Moti’s lawyers, that precipitated what followed.
The lawyer went on to write “…it was very evident to me that the magistrate had been influenced by other behind the scenes persons…and not dealing with this matter purely on the basis of the evidence before him.”
A case for refugee status Background to the arrest
In 2006, Australia had a warrant for Moti’s arrest on charges of the rape of a 13-year-old girl in Vanuatu.  However, these charges had already been brought against Moti in 1997 in the jurisdiction of the alleged commission of the crime – Vanuatu. There, the allegations were found to be so specious that they were dropped before the case got to trial. 
The matter had been legally settled for almost a full decade before the Australian authorities, under the Child-Sex Tourism Act, repackaged and revived the charges (unbeknown to the alleged victim until a year after the investigation commenced – in other words there was no complainant).
The motivation for the charges was particularly suspect taking into account the intention of the Child-Sex Tourism Act. The Australian Federal Police (AFP) website states: “The philosophy underpinning the legislation is that countries are principally responsible for sexual abuse in that country. Laws…such as the Australian child sex tourism offences are intended to fill the gap when countries are unwilling or unable to take action against known offenders.”
In Moti’s case, the Vanuatu authorities had investigated the sexual abuse allegation. There was no discernible ‘gap’ that Australia needed to step into. Besides, Moti was not a ‘tourist’ he was resident in Vanuatu at the time. 
According to the alleged victims father, Ariipaea Salmon, in a video interview recorded in March, just three days before he died, the “mighty Australian government” had used his daughter as a pawn to effect a political agenda in the Solomon Islands. Asked how that made him feel; he replied, “disgusted.” 
For the charges were resurrected at the exact same time that it became a possibility that Moti would be appointed attorney general of the Solomon Islands. 
Ariipaea Salmon maintained that it became quite clear that the renewed charges were a ploy to remove Moti from political influence in the Pacific. He maintained that none of his family had wanted to make any further complaint against Moti. He says Moti’s arrest was presented to the family as a ‘fait accompli’ and he was told that if they didn’t cooperate it might “go against them.”
Evidence that Salmon’s perceptions are correct are corroborated by documents presented to the courts during the discovery process of Moti’s court cases and come directly from the AFP and the Australian Department of Foreign Affairs and Trade.
 Political motivations behind the arrest warrant were why, when arrested in Papua New Guinea in 2006, Moti had the right to assert a claim for political asylum under the Convention on the Status of Refugees 1951 (revised in 1967); a convention acceded to by PNG in 1986.
Political asylum in PNG and the courts
The ‘Convention’ defines a refugee as someone who has a “…well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” When Moti sought political asylum in the Solomon Islands chancellery he had every reason to believe he qualified. 
Furthermore, to establish Moti’s status as a refugee, a diplomatic letter informing the government of PNG that the Solomon Islands government had granted diplomatic asylum to Moti was quickly despatched by the then Prime Minister of the Solomon Islands, Manasseh Sogavare.