Let’s constitutionalise the Judicial Conduct Bill

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

Comments

[Laurence Quinlivan]

Phil - I cannot agree with you. The change of prime minister in August was against the Constitution.

The government realised that and the "illegal" government had to pass retrospective legislation to justify their illegal action.

Hypothetical: The law says you can drive without a seat belt if you have a doctor's certificate. You drive without a seat belt with a certificate. Policeman pulls you up and wants to give you a ticket. No way, you have legal permission.

However, a politician hates you, so has a law passed retrospectively cancelling the excuse with medical certificate.

Then the policeman brings you before the judge for prosecution. You are happy with that?

[Phil Fitzpatrick]

Papua New Guineans and their supporters are apt to jump to ill-considered conclusions.

Pex says: "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".

This is exactly right.

The government has been acting within the constitution ever since it came in last August. It is the judges, particularly the Chief Justice, who have been ignoring the constitution.

[Susan Merrell]

The JCA is akin to leaving the fox in charge of the hen house.

[Hogande Kiafuli]

Well said, but the Bill itself, in allowing for parliament to refer judges, seem to have given itself jurisdiction over the judiciary. Since the three arms of the government are constitutionally separate in powers and functions, one cannot usurp the other.

The head of state is also part of the national executive (together with the National Executive Council) and is therefore not the neutral body to set up tribunal for the judges.

A more neutral body is the Ombudsman Commission, since the Ombudsman Appointment Committee is made up of members fro all three arms of the government.

If the Bill is to be constitutionalised, it should be done with amendments that allow the OC as the investigating body rather than the Parliament.

Sadly, the OC is currently mute.

[Francis Nii]

Thanks for the comments.

While the PNG masses are anticipating the repeal of the Judicial Conduct Act, the Prime Minister Peter O'Neill pursued the exact contrary.

According to ABC's Pacific Beat report relayed by NBC today at 4 pm, Prime Minister Peter O'Neill has come up with an amendment bill to the Judicial Conduct Act which will criminalise the judges concerned meaning that instead of referral, judges will be arrested and jailed.

We will know the details tomorrow but my point here is that who in PNG out of the ordinary citizenry had predicted or even a thought the PM would have come up with such an upsurdity when the WHOLE NATION (by that I don't mean the IGNORANT but those in the knowing and caring which are the mouthpiece of the IGNORANT) has been fighting for the repeal of the Act.

This is PNG the land of the unexpected.

It will be interesting to know tomorrow how many numbers O'Neill will muster this time.

[David Kitchnoge]

Pex is correct in suggesting that Injia is equally culpable for all this nonsense. Had he gracefully stepped down from the bench when his impartiality was called into question, we wouldn't have gotten this far.

Dispensers of justice must not only be independent in fact but also in appearance. I agree with Pex to this end.

But I don't believe this single act of one man’s arrogance warrants such a drastic reaction from parliament.

When did O'Neill and co exhaust all existing avenues to discipline judges, including referral to the OC for possible charges under the leadership code, before resorting to the easy way out?

Has anyone done a thorough analysis of all those instances where the courts directed parliament to take certain actions to understand the legal and constitutional contexts in which those decisions were made?

Although it may appear as if the judiciary has been impinging on the independence of the legislature in such cases, has it really, in fact, done that?

Have we taken the time to dissect those decisions to understand their substance over their mere form?

Judicial decisions are made in a much more transparent manner with judges explaining in detail the bases for their decisions.

Isn’t that fact alone a reasonable innate defence mechanism against potential judicial biases?

It seems we are trying to send a “please explain” note to the judiciary every time it makes a decision we don’t like.

I’d be delighted for us to put the same onus on parliament to, for example, explain why it saw fit to shift goal posts midway into a court hearing and inexplicably making some of those decisions retroactive without any real credible reason other than for political expediency.

[Corney K Alone]

Pex - A splendid dissection. Brilliantly puts this quagmire into good perceptive. Well done.

The days of riding on Himalayan emotions without good understanding has to find its rest somewhere so clarity and purposefulness can serve the citizens better for once.

Unfortunately "timing" here maybe seen as a thief - but needs and has to be done regardless.

[Kopson]

The Bill itself is biassed. How can members of parliament deem a judge biassed without proper investigation?

There are mechanisms in place to regulate the conduct of judges. Now these bodies will be idle as the as parliament will do in essence micro manage.

And are they not presumed innocent until proven guilty?