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17 April 2012

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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?

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.

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

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.

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.

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.

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.

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?

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