PORT MORESBY – About a week ago, The National newspaper published an article under the headline, ‘Kramer Investigated on Allegations of Cyber-Bullying’.
The article, authored by Clifford Faiparik, reported that assistant police commissioner Sylvester Kalaut had confirmed that I, as police minister, was being investigated on allegations of cyber-bullying.
The allegations related to a Madang-based National news reporter who filed a complaint against me in June 2018 in relation to an article I had published on social media.
The article was critical of her biased reporting and having been paid K3,000 from district development grants by the former Member for Madang.
It appears Mr Kalaut has found himself on the wrong side of this issue. Perhaps he should have first taken the time to investigate what the law defines as cyber-bullying.
Section 22 of Cyber-Crime Act defines cyber-bullying as an offence that relates to bullying, intimidating, threatening, demeaning, ridiculing or stalking or causing emotional distress to a child or with respect to children.
So unless the complainant (a National news reporter) is claiming to be child, I really can't see Kalaut's investigation of cyber-bulling against me getting too far.
"Kramer and other MPs in the government and opposition had been under investigation after police received complaints from people alleging various criminal offences against the leaders," Mr Kalaut said.
Yes, this is typically how investigations commence when someone files a complaint and police decide whether or not to act on it after first establishing it is genuine. Then they establish whether there is reasonable cause that an offence has been committed based on evidence.
Kalaut went on to say: “Former commissioner Gary Baki left Kramer's files with me two weeks ago to investigate. As a police officer, I can investigate anyone even the police minister, after all no one is above the law.”
Mr Kalaut’s explanation that the former commissioner left my file with him two weeks ago was in response to my earlier post questioning why an assistant commissioner of police human resources was carrying out investigations into ministers of state?
On 5 July, National Executive Council (NEC) had revoked Mr Baki's appointment as acting commissioner on the grounds he was illegally occupying the office.
He was never appointed by NEC, a requirement under section 193 of PNG’s constitution. Secondly, he had retired as a member of police force after his contract expired on 7 May 2019, in accordance with Section 91 of Police Act.
The problem with Kalaut’s claim that he was acting on instructions by a former commissioner is that Section 197 of constitution, which provides for the powers and functions of the police force, states that members of the force are not subject to direction or control by any person outside the force.
So any directions issued by Baki after 7 May in my view would have been unlawful.
Mr Kalaut argues that, as a police officer, he can investigate anyone even the police minister, and in part this is correct.
Section 197 states it is a function of the police force to lay, prosecute or withdraw charges in respect of offences.
However, why I say ‘in part’ is because it makes reference to the police force as an organisation and not an individual police officer as a one man band. It also states the police must maintain and enforce the law in an impartial and objective manner.
It begs the question of whether Mr Kalaut as a member of the police force is enforcing the law in an impartial and objective manner?
The short answer in my view is ‘no’.
He is acting without lawful authority from someone outside the force and secondly, in my view, abusing the constitution for failing to act in an impartial and objective manner.
I say this because it is clearly not the practice of the police force for assistant commissioners in charge of human resources to take on investigations outside their administrative functions by investigating ministers of state on misconceived charges of cyber-bullying.
On the issue of no one being above the law, I would absolutely agree. This includes senior police force members pursuing investigations that appear malicious and politically motivated. This is why the law also protects people from police officers abusing their constitutional powers.
Kalaut had said: "The complaint was registered at Madang Jomba Police station occurrence book. However, it was allegedly erased on the direction of a senior police officer, thus denying the complainant."
This appears to be a loaded statement. How does one erase a complaint from an occurrence book?
Complaints are registered in chronological order in a large book kept in every police station. The only means to erasing a complaint is if it was written in pencil and someone used an eraser to rub it out.
It is a serious allegation to suggest an officer erased a complaint, as it would constitute perverting the course of justice, which is a criminal offence.
If the complaint is still registered then Mr Kalaut may find himself in hot water for making false allegations against officers in Madang.
So what really happened to the complaint?
It is the practice for complaints registered in the occurrence book that relate to high profile individuals to be brought to the attention of the Provincial Police Commander (PPC), who then considers whether they are genuine, and direct them be investigated, or baseless, and decline to act on them.
In this case the Madang PPC declined to act on the complaint and instead directed the officer dealing with it to advise Ms Dorothy Mark to bring defamation proceedings against myself if she so desired. It was his view the matter is a civil dispute, rather than criminal.
Instead of filing civil proceedings against me, Ms Mark filed civil proceedings (as a human rights case) against the Madang Provincial Police Commander for failing to act on her complaint, claiming she was denied justice.
This matter is currently before the court and is scheduled to go to trial on 1 August. I am not named as a party in the proceedings and not concerned about it.
There is also another matter to establish whether there was reasonable cause for Madang PPC to have acted on her complaint. However, my understanding is that, when a matter is before the court, it would be sub judice (contempt of court) to act on it when the court has yet to make a determination.
PNG’s defamation act provides for both civil damages and in very rare circumstances criminal conviction. If Ms Mark was adamant I be convicted of a criminal offence, she ought to have filed defamation proceedings against me and convinced the court in the circumstances of this case that I ought to be convicted.
“Mark alleged that Kramer had accused her on social media of receiving about K3,000 from the former Madang MP Nixon Duban in 2016," Kalaut said:
This is correct. It is a fact based on the Madang District records and also confirmed by Ms Mark herself in a message to me when I questioned her.
"Thank you. Payment of K3,000 for supplement I am aware. I have reason for getting that which I will prove" she said.
Kalaut also said: “I would also be lodging another against for posting allegations on Facebook about me attempting to arrest him."
This statement I find rather amusing if not disturbing, on account. Mr Kalaut claims he has taken carriage of the files against me. Is he saying he will file a complaint with himself?
“I sought a search warrant from the court to force telecommunications companies to retrieve postings on Facebook allegedly by Kramer,” Kalaut said.
I believe I already made the point you can’t force telecommunication companies to retrieve something they don’t have.
If I may provide some common sense advice to Mr Kalaut it would be that he may have better luck trying to retrieve it from my own Facebook page. It shouldn’t be too difficult.
Kalaut said: “I invited Kramer to come and discuss the matter with me and (commissioner) Tokura at police headquarters where he has an office.”
Really? I don't recall receiving an invitation from him. I understand the protocol is for the investigating officer to write to the commissioner requesting he contact the accused to make himself available for interview.
After establishing there is clearly no foundation in law for me to be investigated over cyber-bulling, the option available to Mr Kalaut is try have me charged for cyber-harassment.
It is defined under Section 23 of the Cybercrime Act as a person who intentionally without lawful excuse or justification uses an electronic system or device to initiate or participate in any communication or online discussion or posts regarding another person for the purpose of intimidating, threatening, harassing stalking or causing emotional distress is guilty of a misdemeanour.
In the case of an adult offender, the penalty is imprisonment for term not exceeding 10 years.
This is perhaps the dumbest law I’ve ever come across. It comes as no surprise as it was established by the O’Neill government in 2016.
In my view the law itself in its current form is ambiguous, open to wide interpretation and abuse. More importantly it is unreasonable and unjustified and therefore unconstitutional, as it offends against Section 41 of the PNG constitution.
Section 41 states any provision of any law that is harsh or oppressive, or is not warranted or disproportionate (one sided) of the particular circumstance or is not reasonable or justifiable is unlawful and invalid.
Section 11 of constitution states that any laws passed by parliament that are inconsistent with the constitution are invalid and ineffective.
So any person who should ever be so unfortunate as to be charged under the cyber-crime act needs to only raise this point in their defence of the charges. I would expect the court to throw out the charges against them.
The above issues aside, to charge someone for cyber-harassment it must be proven that the post or publication must be without lawful excuse or justification. Unlawful excuse relates to being false and unjustified being unfair comment.
On the basis I can’t see Ms Mark’s complaint and Mr Kalaut’s investigations getting anywhere, because I'll be relying on the truth and arguing it’s fair comment.
In conclusion, it appears Mr Kalaut has found himself in a regrettable situation that he may not get himself out of.
Since my last post I’ve received numerous allegations of misconduct against him, some of which are serious in nature and I’ll be carrying out my own inquiries to establish if there is any truth in them.
If there is one thing members of parliament have learnt in the short time I’ve been in politics is that the last place they want to find themselves in is between myself and an issue I’m pursuing.
Right now that issue is improving the police force by de-politicising it, ensure welfare issues are addressed - housing, wages, medical, outstanding entitlements, ensure the force is sufficiently resourced in carrying out its duties with the goal of restoring discipline and pride in an effort to win back the public's trust.
It is my view that Mr Kalaut has found himself on the wrong side of the law.