BY PEX TAWELA
THE SO-CALLED JUDICIAL CONDUCT BILL is a potential law with a set of legal directives that were made to strengthen the responsibility of the judiciary and provide defined codes of conduct, thus ensuring that the judiciary conducts its duties within constitutional principles.
The that was formulated and passed by the National Executive Council of the O’Neill-Namah regime is currently opposed by the vast majority of Papua New Guinean people from different walks of life, including university students, the National Workers Union, non-government organizations, lawyers and the judicial arm of this country, such as judges and magistrates.
The dispute about the Bill is simply because most people misunderstand its purpose and meaning. The few that understand the meaning and purpose of the Bill are in support of it.
The majority who disagree with it argue that by so doing they will somehow protect their integrity. Others see it as another way to fabricate charges of corrupt practices against the government.
On the other hand, others who dispute the veracity of the Bill believe it will compromise the powers and the responsibilities of the three separate arms of government; the Legislative, Executive and Judiciary.
Some also think that the Bill is not necessary because it contradicts the responsibilities and principal of the Leadership Tribunal.
This author is strongly in support of the proposed Judicial Conduct Bill and thinks that it should be constitutionalised because it will strengthen and broaden the responsibilities of the judiciary and avoid corrupt practices such as bias, misappropriation of funds and the prejudicial granting of court restraining orders and court stay orders that are purportedly initiated by the judiciary for the sake of their own benefit.
Bias is one is the foremost reasons why the Judicial Conduct Bill should be constitutionalised because in many cases when judges in the highest court make rulings on a trial the decision is usually made in favour of individuals or parties with whom they are associated. This may be because of bribery or for tribal interests.
A result of these biased decisions is a waste of time and a waste of the resources involved; as in the case where a decision is made in the National Court and a court appeal is granted to the loser for a verification of the validity of the National Court decision in the Supreme Court.
The Supreme Court is the highest and final stage, thus, any decision made by judges in the Supreme Court within their jurisdiction is pronounced once and for all and there is no further court of appeal. There is no provision in the Constitution to sue a Supreme Court’s partial jury even when the decision is understood by all to be biased.
For instance, the decision made by the five- member bench of judges in the Supreme Court ruling that nullified the Hon Peter O’Neill as prime minister and restored Sir Michael Somare was made even though it was proved that Sir Michael Somare had been absent for three consecutive sittings of the parliament and O’Neill’s appointment as prime minister was done constitutionally by the parliament and implemented correctly by the legislative arm of government in the persons of the speaker and the governor general.
As a result of this biased decision by a prejudiced jury of judges there was a political impasse which was directly initiated by those partial judges.
In order to avoid the practice of biased decisions by judges and other high profile judicial perpetrators the Judicial Conduct Bill should be constitutionalized so that any biased jury will face contempt of court and face the full force of law like any other law breakers.
Section five (5) of the Judicial Conduct Bill 2012 states that parliament can refer the Chief Justice, via the head of state, to a tribunal of peers for investigation if the NEC believes there has been any bias in the interpretation of the national constitution. This Bill, when constitutionalised, will ensure that the judiciary conduct their duties within the constitution and refrain from biased decisions.
The deterrence of misconduct in the judiciary is cited as another important factor that contributes meaningfully to the push for passing of the Judicial Conduct Bill in Papua New Guinea. In recent years the judiciary has been accused of misconduct in various areas such as financial mismanagement and breaching the doctrines of separation of powers when issuing orders compelling the legislature.
Every time this happens lawyers and the judiciary make millions of kina from the public in legal fees. The government allocates a judicial operational fund but at least over one third of these funds are silently misused by high profile officers in the judiciary arm. To date none of them have been prosecuted, even though auditing processes have confirmed known amounts that have been misused through corrupt practices in the judiciary.
It is very hard to legally prosecute law interpreters, such as chief justice and its rank and file for misconduct because there is no definite mechanism in the constitution available to administer their conduct and responsibilities. As such, the silent majority is suffering while their benefits are marginalized through misconduct and misuse of judicial funds.
For example, it is reported in recent media that the anti-corruption unit accused Chief Justice Sir Salamo Injia of illegally misdirecting funds belonging to a named claimant but in his capacity as a Chief Justice he quickly granted a court restraining order to prevent himself from facing the law about this alleged unlawful conduct.
The Judicial Conduct Bill is important to pass as this will act as a constitutional watch dog over how efficiently and truthfully the judiciary use so-called judiciary operational funds and legal fees paid by the public as court application fees, court bail and court registration fees.
The practice of the issuing and granting of court restraining orders or court stay orders is seen by many as not a good practice because it gives members of parliament, bureaucrats, and officers in the courts an avenue to purposely initiate and facilitate corrupt practices such as bribery, bias and even for court case dismissals.
Constitutionally every individual in Papua New Guinea is seen as equal regardless of their status and nobody is above the law.
The judiciary has been accused of maliciousness in the practice of granting and issuing of court restraining orders and court stay orders to members of the legislative arm, like the speaker and executive, even though they were reportedly accused of committing misconduct in public office.
This clearly portrays a weakness in the reasonability and the function the judiciary serves and it is therefore now time to strengthen judicial responsibility. If the judicial system is really strengthened enough with additional constitutional provisions to monitor the conduct of its members there will no such corrupt practices in the judiciary.
The Judicial Conduct Bill is definitely required to strengthen the judiciary and its responsibility to avoid issues like court stay orders and to minimize corruption.
Those who have been involved in these practices will view this Bill as a threat to them. They will disagree with the Bill and fabricate a case that it impinges on their integrity. However, those honest members in the judicial system will interpret the Bill as constitutionally sound.
So, provided that the said Bill is passed then the adjudicators in the courts of law will feel that it’s a breach of the constitution to grant anybody a court restraining order that is unlawful.
To conclude, there should not be any fear about constitutionalising the said Bill. Having understood the purpose for which the Bill was drafted it is crystal clear that this is the case.
The Judicial Conduct Bill is mainly made for the juries of the highest court of law in the judicial system as part of a legal principle that prohibits unconstitutional conduct while actively interpreting the duties to the people in the constitution. This Bill will therefore strengthen the responsibility of the judicial system of our country.
Therefore, this author applauds the O’Neill government for passing a Bill to weed out corruption, misconduct and unconstitutionality in the judicial system of this country.
All law abiding citizens are hereby commended to back, without fear or favour, the constitutionality of the Judicial Conduct Bill so that the responsibility for judicial conduct is confined within the principals of the constitution regardless of status, power and value.
Pex Tawela (28) comes from Undiapu/Pangia in the Southern Highlands Province. He is married and lives in Kimbe in West New Britain. He has a Bachelor of Science in Agriculture but is currently unemployed. He believes in being proactive, likes argument and adhering to principles. He dislikes political advocacy and pretence. He also likes to read and write, keep up with current affairs, play touch rugby and meet friends