(Photo: PNG Chief Justice Salamo Injia; online vitriol has been directed at unscrupulous judges including him by anonymous plaintiffs for judicial decisions they feel were biased or corrupt)
In PNG political corruption can divert scarce resources from the rural poor and disadvantaged people to the urban population. And, it happens, especially common in countries where democratic institutions are weak or absent. It becomes a matter of private rather than public interests dictating policy.
This means an ethical line has been crossed. Governments can’t act freely and democracy can’t function. Any trust in politicians is damaged. The easy way out is to turn away from involvement with how government is going on and look the other way. If political corruption continues unchecked, it will spill over, and a lot will be at stake especially in fragile states.
It is now about a conversation that speaks to the truth and in so doing expose corruption at the heart of Papua New Guinea's judicial system, that seems entrenched and is disturbingly commonplace. And, judicial corruption undermines the fabric of any modern society. If the police routinely take bribes and court officials are for sale to the highest bidder, then justice is put beyond the reach of ordinary people and it becomes impossible to trust the law.
The contentious issue or milestone in this descent has been a growing concern that corruption has crept into our judiciary. In the past, courts were free of it. But as the weak structures of state collapse under the weight of political corruption, malaise continues to afflict our country, and graft has now permeated the hallowed grounds of the court. It is an institution that has a direct effect on all aspects of life and is mandated to uphold justice and therefore the distinguish the role of the judiciary as an arm of government.
In the shadowy trail of corruption seen through the murky window of PNG's courts, we can trace a chain of corruption and uncover a court system more akin to a market place where justice or rather injustice is on sale, with the higher bidders standing a better chance of sealing buys. It took syndicate journalism to uncover crimes allegedly perpetrated by a cobweb of judicial officers, all out for profit in the guise of justice.
The Hela Crisis may be traced to conflict theory. Another Bougainville Crisis? This is why.
John Locke's political philosophy gives credence to both. John Locke (1632–1704) is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he defended the claim that men are by nature free and equal, which disputes claims that God had made all people naturally subject to a monarch. His argument that people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society means landowners of resource - rich provinces in the country have a point if they take issue with foreign investors and the state.
The foundation of Locke's claim is that men are naturally free and equal, which forms part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments.
Locke is thus referring also to any defense of the right of revolution.
Locke's treatment of property locates Exxon Mobil in its proper place. The current debates over whether landowners have a case is exactly what Locke was trying to accomplish with his theory. One interpretation that short - changes Exxon Mobil is its claim to defend unrestricted capitalist accumulation. However, Locke is thought to have set three restrictions on the accumulation of property in the state of nature. For instance, Exxon Mobil is required by PNG's laws to be operating within compliance standards throughout the period of its operations.
It can only escape or evade by navigating the loopholes. And, in developing countries like Papua New Guinea, the separation of powers principle or theory of government the crucial role of a functioning judiciary is to stop or contain any evasion, and those implicated in corrupt acts and escalation of the sleazy activities in government were prosecuted or called to task by the checks and balances in government.
The "Dutch Disease' or 'resources curse' can be brought under control, and allow transparent and accountable mining therefore contribute to sustainable development. It begins with judicial impartiality.
The culture of judicial impunity characterised by supreme court justices who can be bought cheaply as their financial conflicts of interest dictate already happened in Ghana, another developing country. Online vitriol directed at unscrupulous judges was a success as embittered, mostly anonymous plaintiffs ripped into judicial decisions they feel were biased or corrupt. It turned the tide on the temples of injustice in Uganda. This is a challenge for Ghana as it is in PNG.
JUDICIAL CORRUPTION - NO SILVER BULLET!
It is now about a conversation that speaks to the truth and in so doing expose corruption at the heart of Papua New Guinea's judicial system, that seems entrenched and is disturbingly commonplace. And, judicial corruption undermines the fabric of any modern society. If the police routinely take bribes and court officials are for sale to the highest bidder, then justice is put beyond the reach of ordinary people and it becomes impossible to trust the law.
The contentious issue or milestone in this descent has been a growing concern that corruption has crept into our judiciary. In the past, courts were free of it. But as the weak structures of state collapse under the weight of political corruption, malaise continues to afflict our country, and graft has now permeated the hallowed grounds of the court. It is an institution that has a direct effect on all aspects of life and is mandated to uphold justice and therefore the distinguish the role of the judiciary as an arm of government.
In the shadowy trail of corruption seen through the murky window of PNG's courts, we can trace a chain of corruption and uncover a court system more akin to a market place where justice or rather injustice is on sale, with the higher bidders standing a better chance of sealing buys. It took syndicate journalism to uncover crimes allegedly perpetrated by a cobweb of judicial officers, all out for profit in the guise of justice.
JOHN LOCKE'S POLITICAL PHILOSOPHY
(Image: John Locke; his Two Treatises on political philosophy included the theory of property)According to John Locke, landowners in resource project areas in the country have a right to demand their share of the production on their land. In his Two Treatises of Government the development of the concept of government was informed by his 7 propositions: Natural Law and Natural Right; State of Nature; Property; Consent; Political Obligation, and the Ends of Government; Locke and Punishment; Separation of Powers and the Dissolution of Government, and Toleration.
John Locke's political philosophy gives credence to both. John Locke (1632–1704) is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he defended the claim that men are by nature free and equal, which disputes claims that God had made all people naturally subject to a monarch. His argument that people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society means landowners of resource - rich provinces in the country have a point if they take issue with foreign investors and the state.
The foundation of Locke's claim is that men are naturally free and equal, which forms part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments.
Locke is thus referring also to any defense of the right of revolution.
Locke's treatment of property locates Exxon Mobil in its proper place. The current debates over whether landowners have a case is exactly what Locke was trying to accomplish with his theory. One interpretation that short - changes Exxon Mobil is its claim to defend unrestricted capitalist accumulation. However, Locke is thought to have set three restrictions on the accumulation of property in the state of nature. For instance, Exxon Mobil is required by PNG's laws to be operating within compliance standards throughout the period of its operations.
It can only escape or evade by navigating the loopholes. And, in developing countries like Papua New Guinea, the separation of powers principle or theory of government the crucial role of a functioning judiciary is to stop or contain any evasion, and those implicated in corrupt acts and escalation of the sleazy activities in government were prosecuted or called to task by the checks and balances in government.
The "Dutch Disease' or 'resources curse' can be brought under control, and allow transparent and accountable mining therefore contribute to sustainable development. It begins with judicial impartiality.
The culture of judicial impunity characterised by supreme court justices who can be bought cheaply as their financial conflicts of interest dictate already happened in Ghana, another developing country. Online vitriol directed at unscrupulous judges was a success as embittered, mostly anonymous plaintiffs ripped into judicial decisions they feel were biased or corrupt. It turned the tide on the temples of injustice in Uganda. This is a challenge for Ghana as it is in PNG.
MINING FOR SUSTAINABLE DEVELOPMENT
Oil Search - Drill First And Then Try To Find Out later?
(Photo: PNG LNG drilling site; Southern High Province)
It may be put down to divine intervention or mere coincidence, but a number of countries in the developing world tend to possess lots of natural resources. It is therefore not surprising the heavy concentration of foreign investment in the natural resource (particularly mining and oil) sectors of these countries (Addison & Heshmati, 2003). The investment flows could be expected to have substantial socioeconomic and environmental implications for developing countries (Bridge, 2004).
PNG is one of them and is home of the PNG LNG project considered one of the world’s best-performing LNG
Then disaster strikes. On 28 February 2018, a 7.5 magnitude earthquake and aftershock has now exposed a lot of areas in the mass movement which will further cause instability in the surface infrastructure but also the hydro carbon resources underneath, and an audit on the quality and the quantity of the hydro carbon resources will show information on anticipated loss of revenue both for the State and the investors.
It will take a while for them to get back on stream.Then disaster strikes. On 28 February 2018, a 7.5 magnitude earthquake and aftershock has now exposed a lot of areas in the mass movement which will further cause instability in the surface infrastructure but also the hydro carbon resources underneath, and an audit on the quality and the quantity of the hydro carbon resources will show information on anticipated loss of revenue both for the State and the investors.
WHAT’S AT STAKE?
Transparent and accountable mining can contribute to sustainable development. This begins with corruption-free approvals – the very first link in the mining value chain.
Corruption risks must be understood so corruption can be prevented from occurring.
Transparency International’s Mining for Sustainable Development Programme (M4SD) addresses where and how corruption can get a foothold in the mining approvals process – the notion is to combat corruption before ground is even. The earthquake exposed energy technology used by Exxon Mobil which was thought to cause the earthquake, and the extraction technology used came under the microscope. In PNG, wastewater re-injection or disposal was a petroleum industry practice that could have been used whilst hydraulic fracturing was less likely. But, both induced earthquakes. Exxon Mobil put down the cause of the earthquake to the hand of nature.
WHAT IS TO BE DONE ABOUT IT
TI's programme is about building foundations for accountable and transparent mining that benefits communities, and supports social and economic development. The programme is currently in the first of two phases: assessing corruption risks that focuses on 20 resource-rich countries and to conduct risk assessments to understand the nature and source of corruption risks in mining approval processes; and addressing corruption risks. It is anticipated that national chapters will be implement action plans to prevent corruption risks identified in Phase I. They will work with key stakeholders – government, civil society, local communities, and the mining industry – as part of a global strategy to build trust, improve transparency, and influence behaviour change in the mining sector.
The programme will advocate for the improvement of national and international policy and practice, and the strengthening of existing mining transparency initiatives and standards.
TI wants to ensure that its mining transparency initiatives and standards will assist the participating national chapters to operate transparent and accountable mining, and therefore contribute to sustainable development in the mining sector. These countries with thriving mining sectors include Armenia, Australia, Cambodia, Canada, Chile, Colombia, Democratic Republic of the Congo, Guatemala, Indonesia, Kenya, Liberia, Mongolia, Mozambique, Niger, Peru, Papua New Guinea, Sierra Leone, South Africa, Zambia, and Zimbabwe.
THE PRICE OF JUSTICE
The price of ensuring transparent and accountable mining would be very high in a country that ranks 137th place on the Corruption Perception Index or CPI , a sign that corruption is endemic, systemic, and systematic like many other developing countries sitting within this range on the CPI barometer among countries all over the world. And, in particular those countries that already suffer from the 'Dutch Disease' or 'resources curse' in which how the mining sector can contribute to sustainable development is only a myth beginning with doing things properly within the regulatory regime of state so that the state is going by corruption-free approvals – the very first link in the mining value chain, and corruption risks removed and prevented from occurring.
PNG’s LNG gas project may spark 'new civil war', a price to be paid because its mining transparency initiatives and standards targeting the participating players to operate transparent and accountable mining, and therefore contribute to sustainable development in the mining sector failed by all international measurement best practice. The 'resources curse' has now begun to haunt the country. It was foreign direct investment by Oil Search in partnership with Santos, and Exxon Mobil in PNG's petroleum and gas industry, and wealth derived from mining and oil extraction that promised much. Exxon Mobil has defended its contribution as a foreign direct investor in the PNG economy since 2009 country when the gas project started to make its presence felt in the energy sector in the country.
( Photo: PNG LNG first shipment, 2014; it was on Prime Minister Peter O'Neill’s watch as the most dominant political player in PNG politics this decade)
These benefits of mining operations in theory were to be apparent at both the macroeconomic and the local community levels. They include: substantial financial nourishment through export earnings, employment, and tax revenues at the macro level of the PNG economy; better the living standards of poor people by payment of royalties, occupation and other compensation fees to the local community, which are considered as traditional responsibilities at the local community level where it operates the project; host of manufacturing and service sector industries; the provision of other goods and services including the construction of infrastructure, roads, Bridges, health centres, and schools as part of their Corporate Social Responsibility (CSR).
Oil Search is a Multi Mining Company or MMCs and is under pressure to carry out these initiatives as a way of honouring their commitment to the government whilst being responsible for the diverse impacts of their operations on the host community. It is normal to put pressure on mining companies for increased Corporate Social Responsibility, which forces them to allocate revenue for the provision of local medical care, educational facilities, and other infrastructure that under normal circumstances are to be provided by the government.
However, going by the evidence available the economic boom promised collapsed. An Australian think tank warns of spiraling violence over royalties for landowners that have never been paid since the shipment of exports to world markets began in 2014. The Exxon Mobil - led project attracted a half billion Australian government load in 2009. It is now confronted with landowner discontent that could "spiral out of control", and has the hallmarks of another Bougainville civil war. Since 2014, 8 million tonnes of gas a year has been exported to Japan, South Korea and China.
Despite gas flowing since 2014, landowners in Hela province are yet to receive royalty payments, resulting in escalating tensions, tribal violence, incidents of hostage-taking, blockades and sabotage. And, the fear of PNG government military crackdown is crystalising in order to protect the investment. State repression is to counter the build-up of arms to demand benefits from the gas project which has accelerated to a pointed where it is often speculated that the landowners are in possession of more firepower than the entire PNG defence force.
Exxon Mobil responded to the report. It pointed to its role in driving economic growth in PNG, producing significant benefits for local businesses, and thousands of jobs for local citizens. The company reaffirmed that its commitment was still there to address developmental challenges in the country, which required ongoing collaboration, and it had been working to assist communities in the Highlands since construction of the project began. This included understanding the cultural and socio-economic context where it operates, and it had no issues with its social investment program that maintains a focus on education, community health and broader socio-economic development.
Its public relations ensured regular engagement with communities to keep them informed of the company’s activities and increase effective communication on legitimate issues that may arise, and where necessary managed through a rigorous grievance management process to quickly address any concerns.
So, Exxon Mobil has cleared its name. It is time to shoot into the void. It is also a time to ask where in the process of the social licence to ensuring transparent and accountable mining was the mistake made. One mistake and its lessons have been ignored. Between 1987-1997, 20,000 people died in a civil war between PNG and its Bougainville province. Panguna, one of the world's largest copper and gold mines, sparked the conflict.
The issues have to do with undelivered infrastructure projects resource companies promised landowners including roads, airports, hospitals, housing and sewerage projects. Anthropologist and author of the two reports that evaluated the social impact of the gas project Michael Main, who spent seven months in Hela province, said the vast majority had not been built. A few were incomplete or not maintained properly or were white elephants. He pointed to the Komo hospital, which has no equipment, staff, fuel for its generator, or beds.
Since 2009 , Exxon Mobil, Oil Search, Santos and the PNG government, the due diligence undertaken by consultants paid for by Exxon Mobil did not meet international best practice.
Australian tax payers therefore would be calling for full Senate inquiry. The touted economic boom from the project had not eventuated and the people who own the land where the gas project is located, and PNG’s economy, would have been better off if it had not gone ahead. Thus, the February 2018 major earthquake which struck had ejected the skeleton in the wardrobe and challenged the assumptions on the predicted economic boom for the country. It is not up to the PNG Prime Minister Peter O'Neill to dismiss the questions raised about transparent and accountable mining. His ministers have acknowledged the government had some lessons to learn.
JUSTICE FOR SALE
The PNG LNG project is considered one of the world’s best-performing LNG operations, having started exports in 2014 ahead of schedule, despite the challenge of drilling for gas and building a plant and pipeline in the remote jungle of PNG. It happened on Prime Minister Peter O'Neill’s watch as the most dominant political player in PNG politics this decade. In the aftermath of the dramatic events of the 2011 constitutional crisis which resulted in the unexpected elevation of O'Neill into power, he quickly became revered among his peers as an experienced combatant of the country's hostile politics.
O'Neill maintained strong populist support in the early years of his government by promising free health and education programs and infrastructure development, backed by a strong anti-corruption focus in the form of the Investigative Task Force Sweep. However, his prolonged resistance against his arrest warrant for official corruption has contributed to the deterioration of regulatory and enforcement institutions as well as reducing confidence in his political longevity.
With mounting allegations against him, O'Neill influenced key political allies and swayed the appointment of key bureaucrats whose loyalty helped consolidate his grip on power. O'Neill's influential political allies include William Duma, Dr Fabian Pok, Peter Ipatas, James Marape and Mao Zeming. Playing into existing regionalist sentiment within PNG politics, O'Neill maintains a firm inner circle of Highlands MPs and ensures that controversies involving them are subdued. Other key players in O'Neill's ascension include former Prime Minister Pais Wingti, Speaker of Parliament Theo Zurenouc, Don Polye, Patrick Pruaitch, and Ben Micah. Polye, Pruaitch and Micah were key allies in the early period of O'Neill's government and were rewarded with senior ministerial portfolios until their falling-out with O'Neill led them to the Opposition. Don Polye and Ben Micah lost their seats in the 2017 election.
O'Neill's political party, the People's National Congress (PNC), also suffered losses of influential political figures such as the former Deputy Prime Minister Leo Dion, Mao Zeming and Theo Zurenouc. The latter two were critical, as in the past they leveraged support for O'Neill from MPs in the mainland coastal region (Momase).
Unlike his previous government, O'Neill initially faced an uphill battle against a resurgent Opposition group with 46 MPs. However, some members in the Opposition have defected to join O'Neill since his election as the country's Prime Minister in August 2017. With the looming vote of no-confidence in the next 15 months, O'Neill will do whatever he can to retain support.
(Photo: Ben Micah was once Chief of Staff to Prime Minister Peter Oneill; in the 2016 VONC he voted with the Opposition against Oneill, reconciliation ceremony in Kavieng, 2018)
Thus, the justice people across the country want from the legislative arm of state is sandwiched between Peter Oneill’s mission to combat every inch of the way to retain support to keep his influence in the chambers of parliament given the country's hostile politics, and how the trickle – down effect is reaching the majority of the country’s disadvantaged and poor living in the rural areas.
It is taken for granted that justice, therefore, would be for sale. And, if the legislative and executive arms of state cannot function and caved in due to Peter Oneill’s prolonged resistance against his arrest warrant for official corruption. The long process has contributed to the deterioration of regulatory and enforcement institutions as well as reducing confidence in his political longevity. And, the option left is to sell justice as a commodity on the market to the highest bidder.
Papua New Guinea can get tough on judicial corruption, and enable the country’s judicial system to function. The exposure of corruption in PNG’s judicial system has not become an issue yet, but at the same time there are no signs the country is taking a tough stance to get its judiciary to be free from allegations of corruption. This may not be unusual, but the scale of the problem is coming to light when local investigative journalists show instances revealing judges compromising themselves as officers of the law which influences their decisions in court.
In the mining sector justice delivery system and the negative impact of judicial corruption and loss of the right to a fair trial cannot be overstated because to do nothing means to promote injustice and unfairness, and undermines the rule of law and confidence in the administration of justice. It begins with restoring public confidence in the judiciary.
Thus, restoring public confidence in the judiciary is the forerunner to transparent and accountable mining, and therefore pave the way for sustainable development. This begins with corruption-free approvals – the very first link in the mining value chain. A functioning judiciary as opposed to a corrupt judiciary provides a platform for corruption risks to be understood so corruption can be prevented from occurring.
It follows that the judiciary without the corrosive effect of corruption is crucial to making certain Exxon Mobil and its partners, along with the state, can rise to the occasion to ensure transparent and accountable mining. The landowner discontent is there because the flip side of the coin to the economic boom story seem to overwhelm the balance which tipped against the company. The disadvantages of the LNG gas project were not minimised since 2009 when the project started, and when the oil export to overseas markets brought in revenue to the country over the past 4 years from 2014 on wards to date.
(Photo: PNG LNG oil export shipments started in 2014; 285 shipment this month)
The arguments Oil Search must arrest or overcome means to counter criticisms against the mining sector for its disproportionate negative effects in developing countries, like in PNG, where its partner Exxon Mobil has operations as a MMC, and elsewhere in the world its operations are located. Firstly, profit-seeking nature of Multinational Mining Corporations - Oil Search is here for profit, and the limited state capacity in most developing countries (Hilson, 2012 p.134), which in many cases makes it hard for the benefits from the sector to be seen, given the profit-seeking nature of Multinational Mining Corporations.
In the extractive sector, a weak state or 'failed state' makes it easy to undermine development in cases where negative environmental, social or economic costs are generated but not captured by the investor. Thus, Exxon Mobil and Oil Search blame the PNG government for failing to channel landowner benefits when the payments were due to be paid.
This is seen with large social and environmental externalities, which demands effective regulation in order to maximize the gains from extractive activities. However, the limited state capacity manifesting in the weak institutional structure in developing countries.
PNG is in this category, therefore the problem of trying to blow the whistle or regulate on:pollution, migration, and infrastructure dilapidation.
Secondly, the PNG LNG project is an impediments to democracy and democratization (Ross, 2001)
Thirdly, the PNG LNG project since 2009 caused domestic wage rates to rise keeping to the "Dutch Disease" thesis. The Dutch disease states that rising mineral export in a country causes the domestic currency to appreciate whilst raising domestic wage rates (Davis and Tilton, 2005; Auty, 2002). This results in making much agricultural and manufacturing industries in that country internationally uncompetitive, thereby impeding economic diversification and increasing dependence on volatile mineral markets (Davis & Tilton, 2005).
Fourthly, the PNG LNG project since 2009 led to a mineral - dependent economy or the "Resource Curse". The “resource curse” states that the economic mismanagement and poor decision making will take place when the focus is on the petroleum and gas industry(Aryee, 2001). And, the nature of volatile mineral prices leads to marked fluctuations in export revenues, and the trend shows significant “boom and busts” in government revenue. In this case prudent economic management can be a problem.
Hence, the dependence on such revenues (during boom phases of cycles) creates economic disaster during bust phases, when revenues decline significantly through downswings in price, particularly as such dependent economies are unable to expand their non-mining tradeable sector to compensate for the “bust.” Such economic distortions means in typical mineral dependent economies like PNG, it can be a major impediments to the sustainable development of such economies.
PNG economy therefore is going to suffer from a bad development model, where there is no sustainable development.
Fifthly, the PNG LNG project since 2009 led to creation of an enclave economy characterised by mineral and oil production made possible only a process that is highly capital intensive. Oil Search is employing only a handful of people with foreign procured large capital inputs. Hence, the sector yields modest local production linkages, thereby making a minimal contribution to economic development in such countries.
Sixthly, the PNG LNG project since 2009 has led to economic growth decline due to international factors. Thus, World Bank mining policies despite promoting foreign investments as win-win situations for both mining corporations and host countries favor mining corporations more than the host countries. In a country where customary landownership is recognised by law, the skewed distribution of benefits from the gas project will cause havoc.
The problem is there, about skewed distribution of benefits, in which the financial risks assumed by mining companies and their investors far outweigh that borne by the host countries. In this case, the World bank itself does not take into account the environmental, political, social and economic risks assumed and suffered by the landowners as these are assumed to be small things or obfuscated by the political, commercial, and geological risks associated with mining, and borne by investors.
In order to reduce investor risk, and governments are asked to reform their tax regime and offer other incentives. This makes way for an allocation of a disproportionate amount of profit - sharing arrangements or production - sharing arrangements.
The end result is the World Bank approves mining finance capital, whilst the financing formula approved, and therefore allowing for the distributional power of landowners to claim absolute rent from the extractive industry is not there.
Finally the PNG LNG project since 2009 caused community disintegration called mining externalities. There are health, social and cultural externalities associated with mining(McMahon, Gary, Remy and Felix (2001). The operation of a mine is associated with increase in crime and prostitution; rise in cultural conflict with indigenous people; the distortion of existing social hierarchies; creation of conflict between the beneficiaries and the non-beneficiaries of the project; and, have adverse effects on local health conditions including the release of toxic substances like cyanide and other pollutants which increase morbidity and mortality rates in these communities.
Exxon Mobil as a partner of Oil Search has operations all over the world. The human costs are the same. In Liberia the Exxon Mobil oil deal went ahead despite anti - corruption concerns which questioned its compliance credibility. The story was no different in Chad where Exxon Mobil was fined by a court for non - compliance.
THE ROBE PROBE - PNG'S TEMPLES OF INJUSTICE
The failed scenario of economic boom and trickle - down effect poses interesting questions about the history of corrupt culture even in the judicial system of the country. It begs the question that in PNG's mining sector justice delivery system has become a stumbling block rather than setting the bar to be reached by investors and the state in order to break free from the 'resources curse' due to the negative impact of judicial corruption. PNG LNG gas project landowners were left in the dark since 2009 when the gas project was brought into the picture, and connected Hela Province to the PNG economy and the global market economy. This stemmed from observations from social scientists researching the social impact of the gas project featured by loss of the right to a fair trial in the courts as to the identity of landowners who had a stake as customary landowners of the gas project, which cannot be overstated because they happen to be non – unionized poor section of society and to do nothing means to promote injustice and unfairness, and undermines the rule of law and confidence in the administration of justice.
It begins with restoring public confidence in the judiciary.
Thus, restoring public confidence in the judiciary is the forerunner to transparent and accountable mining, and therefore pave the way for sustainable development rather than the country’s judiciary stepping back whilst the defrauding of the state goes on in broad day light due to the history of corrupt culture in the country in recent years with a CPI scale placing PNG on 137th out of all countries in the world.
It may be argued that the greatest threat to the people of PNG on the receiving end of the ‘resources curse’’ is the deep-seated culture of the judiciary as an arm of state that does not function. It adversely affects national security and the lives of the vast majority living in rural areas who see development only when big projects come on stream through foreign direct investment. The option of reorganization will correct this problem, and it begins with exposing of the pattern of criminal and even subversive activities by the judiciary with complicity by executive and legislative arms of state that could set the pace to bring back integrity, honesty, and stop the erosion of ethical conduct associated with the judiciary which constitutes major crimes and would be punishable if they were ordinary citizens.
It is taken for granted that if the hypothesis is supported by data then a trend of deeply embedded culture of political corruption has mutated into judicial transgression and impunity in PNG's judiciary, if any, like anywhere else in the world is extremely dangerous to the people in an oral society. The lessons from Bougainville Crisis are on the table.
There is a fine line between politics and law. After the earthquake struck, enormous challenges confronting Papua New Guinea in the LNG era became clear.
There is a fine line between politics and law. After the earthquake struck, enormous challenges confronting Papua New Guinea in the LNG era became clear.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
The syndicated stories point to PNG's democracy being under threat from powerful vested interests that resist public interest all because the state is weak and cannot enforce its regulatory regime properly on big business. A corrupt judiciary cannot do its job to investigate concocting structures – corporate fairytails – to deceive regulators, governments, voters, and taxpayers. Exxon Mobil has a record of multinational tax avoidance through illusion, fabrication, and pretense. For instance, according to the United States Geological Surveys it is implicated in induced earthquakes where it operates throughout the world. The USGS points to hydraulic fracturing which accounts for only one or two per cent of induced earthquakes whilst the remaining were induced by waste water disposal into extraction. This was was the case in the Netherlands where Exxon Mobil fumbled to account for investigations that link extraction to earthquakes, and put it on notice for non - compliance and deceiving regulators and the government of the Netherlands.
It is a travesty that the non - unionised poor or landowners who seek justice are asked to pay for it. This would be judicial violation that frequently goes unpunished, and the courts’ battered integrity and lack of transparency on their systems cannot be touched. Yet, the point is to hold judges accountable when they are engaged in unethical behavior.
( Justice Ambeng Kandakasi; ADR came under scrutiny for him having financial conflict of interest)
A number of facts about Exxon Mobil are on hand. In Australia not only did Exxon mislead the Senate in 2015, they continue to do it now. For instance, Exxon vigorously apposed moves for it to disclose relationships of its Australian business to parties in foreign jurisdictions, the most basic fact that the Australian business was owned through the Netherlands. And, when asked to provide information to the Senate they failed, a case of Exxon Mobil being misunderstood.
Again, they had to disclose their ownership of operations in Papua New Guinea via another Australian entity, this time owned through an Exxon subsidiary in the US tax haven of Delaware. In 2016 Exxon and its partners Oil Search and others exported US$2.5 billion worth of LNG from PNG to four Asian customers through sales contracts with another Exxon company in the Bahamas.
In addition, negligible tax was paid by Exxon’s Australian entity in PNG and resentment is on the rise about dismal tax and royalty payments for landowners.
Finally, in February 2018 the gas project in PNG was devastated by a 7.5 magnitude earthquake which locals are blaming the the oil and gas drillers even though there is no scientific evidence as to the cause of the quake. Since the quake Exxon has donated $1 million for earthquake relief while its junior partner, Oil Search, has given $5 million. The gesture is to keep the temperature down, but the issues to be settled still linger and Exxon Mobil is in damage - control mode.
It will need a functioning judiciary in PNG to take stock of big business like Exxon Mobil with the state losing out on tax. In Australia the corporate chicanery around tax which would never have come to light but for the Senate Inquiry, some small sections of the media and growing community awareness and outrage.
The state cannot easily understand Exxon Mobil but is leaving it to the judiciary to protect landowners where necessary. For instance, the alternative dispute resolution exercise to address landowner identification and therefore channel royalty payments failed and seemed like a another scam on top of the trail of non - compliance contradictions suffered by Exxon Mobil wherever it operated in the energy sector world over including fraudulent record of multinational tax avoidance through illusion, fabrication, and pretense.
And, the judiciary was in control of the exercise with millions of kina vanishing into thin air without trace.
The PNG LNG mediation led by the judiciary has become controversial. And, the judiciary may need cleaning up. ADR which aimed to avoid the trap of litigation-in-disguise was an important step in the effort to replace confrontation with negotiation. The challenge was to make sure it really paid dividends as opposed to allowing companies who have developed arbitration not so much to hold down as to disguise both costs and unnecessary procedures. As a result, arbitration is more expensive than it should be, and critics claim, with some justification, that ADR’s cost-cutting ability is exaggerated.
If the judiciary failed to make the ADR work then arbitration did not have a platform which included: use experts selectively; agree to limit damages; participate in prehearing exchanges; limit the necessity for briefs; and, streamline the proceedings.
In addition, the Supreme Court judgement that squashed the controversial warrant of arrest against Prime Minister Peter Oneill may be factored into a scenario in which official corruption has contributed to the deterioration of regulatory and enforcement institutions in order to beef up confidence in his political longevity.
With mounting allegations against him, O'Neill influenced key political allies and swayed the appointment of key bureaucrats whose loyalty helped consolidate his grip on power. The judges may or may not be found in this category.
With mounting allegations against him, O'Neill influenced key political allies and swayed the appointment of key bureaucrats whose loyalty helped consolidate his grip on power. The judges may or may not be found in this category.
( Photo: PNG Supreme Court and National Court justices enjoy a special privilege, which demands judicial impartiality and prohibits a jurist from presiding when he or she has a personal bias concerning a party to the case)
The suggestion here is that the Supreme Court ruling on Prime Minister Peter O’Neil's case seems to be bad and shocking, and there is too much mixing truth with falsehood with one aim of doing the wrong thing which amounts to the highest form of corruption linking the judiciary to politics, power, and pragmatism, and may be seen as straying away rather than keep to the legal doctrine existing in the country.
PNG LNG gas project landowners can afford to stand up and challenge corruption. And, it is a travesty that while the non - unionised poor or landowners seek for justice, they are asked to pay for it. The temple of injustice in the country thrives, and is common, because judicial violations frequently go unpunished. It is time to speak to the truth and restore the courts’ battered integrity by forcing more transparency on their systems and holding judges accountable when they engaged in unethical behavior. John Locke's position on landowners is clear. His position on social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property is also a statement for an impartial judiciary to play its correct role to protect the PNG Constitution.
It is a step forward rather than backward for media freedom and online expression and critical reporting online that the judiciary is held to account where it has overstepped its bounds. Hela's landowners have a point to make. In the case of the PNG LNG gas project, the law’s broadly worded provisions mean they are ripe for abuse by the government and Exxon Mobil.
And, it is up to the judiciary to shoot into the void.
The people can win. The lessons from the Bougainville Crisis are on the table. Will they triumph against the mighty? Only time will tell - but maybe this conversation will help.
It is a step forward rather than backward for media freedom and online expression and critical reporting online that the judiciary is held to account where it has overstepped its bounds. Hela's landowners have a point to make. In the case of the PNG LNG gas project, the law’s broadly worded provisions mean they are ripe for abuse by the government and Exxon Mobil.
And, it is up to the judiciary to shoot into the void.
The people can win. The lessons from the Bougainville Crisis are on the table. Will they triumph against the mighty? Only time will tell - but maybe this conversation will help.
(Photo: militant landowners, Hela: PNG LNG project's social impact projects were slammed in 2 separate reports by an Australian public policy think - tank)
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