BY CHARLES YAKOPA
AN IMPORTANT ISSUE THAT AROSE during the recent political impasse between the O’Neill-Namah and Somare-Abal regimes was the integrity and independence of the judiciary and the Office of the Chief Justice.
The actions of the judiciary left a lot to be desired and, probably for the first time in PNG, the independence of the judiciary was genuinely questioned.
As a result, the Court decision to restore Somare as the Prime Minister was not well received by the general public. In fact it seemed to have created more problems and raised more questions than solve the problem and lay the matter to rest.
Why was this the case?
There isn’t an easy straightforward answer, but one that stood out was the perceived independence of the judiciary.
The important question to be answered was and is: “How was the public expected to entertain a reasonable apprehension that the judiciary was impartial and unprejudiced in handing down the decision, especially when the Chief Justice had an apparent conflict of interest in the case (stemming from corruption allegations levelled against him by the O’Neill-Namah government).”
The issue of Independence comes in two main forms, actual and perceived. Although actual independence would be deemed more important in most cases, perceived independence would also be viewed as equally important in certain professions (like the legal fraternity for example).
The judiciary and legal professions must not only be independent but must also be seen to be independent. That is why, say as an example, a lawyer is not supposed to represent an immediate family member in court.
He may be sincere, honest and genuine but others may view him or her as having a conflict of interest in the case and practising bias.
The test which is usually applied is that which was set out by the high court of Australia in the Livesey vs NSW Bar Association (1983) 151 CLR 288 case which states that:
“... a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question of the matter.”
Where is the uniformity and logic when foreign judges can be appointed to hear a case that could have easily been heard by our own learned judges, while an equally important case, where it would have been more appropriate to invite foreign judges, is heard by domestic judge(s) who may have most likely been compromised and perceived by the public to have had an interest in the case? It baffles the ordinary citizen.
Judges may be sincere, genuine and unbiased when handing down their decision but the important thing is that the public must be thoroughly convinced that the decision being made is objective, impartial, not vengeful and made without prejudice.
Ultimately preserving and upholding the integrity and (both actual and perceived) independence of the judiciary.
Charles Malu Yakopa (30) was born at Kagua in the Southern Highlands Province and now lives and works in Port Moresby
It is true that foreign judges should have been called to settle the questions posed by the East Sepik government's constitutional reference, given the implicatons of what the possible outcomes would have been.
That would have been in line with what the Chief Justice himself had done in a previous case. But this one was more sensitive and important.
Whether the CJ was impartial or had a possible conflict of interest, I feel that issue was resolved when the three "witnesses" failed to appear before court and their statements were completely identical except for names and signatures and had questions raised about their evidence.
From what I have been able to gather, the Supreme Court was impartial. However enough muck was raised to bring some doubt into people's minds which in itself is sad.
This has now led to a situation where the O'Neill/Namah group seem to be able to do almost anything without there being a publc outcry. it appears that when thtere are wrongs done, the public chooses to ignore them.
I am also saddened hat it now appears that the respect for the judiciary is being eroded before our eyes and we are doing nothing about it.
I respect Barbara's views, however I do not think O'Neill/Namah have been doing a good job.
This good job, in my opinion, is a blanket thrown over the very bad things they have been doing and I for one feel that what they are doing is very dangerous for our democracy, our institutions and our country.
Posted by: Paul Amatio | 18 January 2012 at 09:24 AM
Beautifully written, and well said, Charles Yakopa.
I was in hospital in Sydney when all the "fun and games" took place in Port Moresby so I was unable to follow what happened in full detail.
But I always perceived that something was "fishy" when it came to certain members of the legal profession in PNG trying to put Somare back as PM.
I felt O'Neill had been doing a good job and that the change from Abal to O'Neill had been done in a democratic way.
I fully agree with you, it would have been very appropriate to invite a foreign judge in to decide the case.
Posted by: Barbara Short | 18 January 2012 at 07:49 AM