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« A cry that resonates from wretched hearts | Main | The judiciary: the pivot anchoring our 800 tribes »

24 April 2012


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Pete, agreed.

An independent body, perhaps comprised of wise old elder statesmen who could act impartially, would be the answer to solving the impasse.

But given the size of the egos of the players involved I think the protagonists, or should I say antagonists, would not have enough humility to accept the advice of a third umpire.

I not that in matters sporting that referees can be sin binned if it was later found that they had made errors of judgement in their duties and maybe some of the players in this matter have drawn their later courses of action from such scenarios.

Team A would say they are right and on the other hand Team B would say I am right, therefore someone independent would deliberate on the case at hand be as an adjudicator.

Harry - Agreed. But how about during the 'time out' maybe an independent royal commission could be formed to try and adjudicate?

Of course the problem is how to ensure that it is truly independent of influence from one side or the other (or the other other).

Does the GG have the power to so act?

PS, Thanks for the comments about old Bert. I believe he is due to return home as soon as his hip has healed.

Sadly my Dad is now in a nursing home, which is the best for him and the family but it's hard for Rose to understand as, in PNG tradition, all the family combines their resources to look after their elderly.

There's an interesting take on this in 'The Return of the Tribe' (available on YouTube) where the PNG village people give their responses to a visit to a nursing home in the UK. That program is damn interesting.

It gets annoying when players won’t play by the rules despite sideline referees loudly blowing their whistles indicating stop play.

This phenomenon is not unique to PNG. Today’s daily carried a story on aggrievement felt by Aussies not satisfied the results of referees decisions in past grand finals played in all sports and how, despite all the years passing, club loyalties prevail with supporters still whinging about referees' decisions which denied their clubs victories in past grand finals matches.

The current situation in PNG relating to the political impasse resulting from different spectators' opinions as to the true interpretations of the Constitution appears to be no different to that in the sporting arena in that it would seem that both the referees and others involved made the wrong decisions during the state of political play.

To the layman it would appear that the rules are quite simple.

The parliament makes and enacts the laws whilst the judiciary enforces and interprets those laws.

If the laws, on review, are found by the judiciary to be faulty then those laws would need to be reviewed by their original architects and, if required, amended.

It seems that the main casualty in this matter is objectivity, as all players now seem to want to make up their own rules and worse of all the original matters have become clouded by personalty issues.

So it may be time that time out be called and all the players retreat to their dressings rooms, calm down, take some refreshments and resume play when the have regained their composure and dignity; bearing in mind that the spectators are not very happy with the current state of play in the political arena.

The consequential order of the Supreme Court on 12 December 2011 would have not mattered if Parliament had acted in the spirit of separation of powers as prescribed in the Constitution and implemented the decision.

In other words, even if the consequential order was not made, the Speaker was still required under the Constitution, as interpreted by the Supreme Court, to let Grand Chief take his seat in Parliament as Prime Minister.

As we know, the Speaker and Parliament decided to take a different route because they refuse, quite deliberately, to follow the Supreme Court, which is the only institution mandated with the responsibility to interpret the Constitution.

Whoever gave that advice must shoulder responsibility for the current crisis.

Had the Speaker allowed the Grand Chief to take his chair as PM, the Grand Chief did not have the numbers to pass the budget and, for that reason, would have been removed, legitimately removed, and replaced by O'Neill in December 2011.

We would not have this crisis if the Speaker had taken advice from the institution, being the Supreme Court, that ahs the constitutional mandate to state what the law is and what the consequences are on presented facts.

I do engineering for a living, not law. My humble view (in this forum) has always been that, the Supreme Court should never have made the order to reinstate Somare even if he had sought that order.

That was directing Parliament what to do.

The supreme court can only interpret the law and leave it at that, i.e dumping of Somare was illegal. Somare is free to go back to Parliament and get back his job (with numbers and money - truckloads of it!).

Secondly, what the government is doing, passing laws and retrospectively is not solving any inherent problem.

Thirdly, the JCA is probably a necessity given the changing times we are in. There maybe some good intent in it but timing may be off.

I do not think it is right for any judge of any court to issue a stay on any allegation that concerns them directly.

I agree with Tavurvur's comment that any allegation against any judge should be immune to parliament's participation.

In the current mess, I feel the courts and parliament are at loggerheads.

PNG is a small country and everyone knows each other, this is true of parliamentarians and judges and there is a fine balance to tread as regards bias and maybe we do need that JCA, after all (if I as a landowner is at the receiving end, I would need that JCA).

My question for Tiffany would be as follows:

Are the contested pieces of legislation the most appropriate response to the current crisis (even if one accepts that the judiciary has a case to answer)?

Or is it a case of bad law for good reasons (with all the consequential possibilities for misuse in the future).

Very interesting comments there..

In my simple mind I believe the judiciary only reacted because the politicians were wrong (or wrongly advised by lawyers) not to adhere to the supreme court decision of December.

The other issue is if these pollies are passing laws in record time, and retrospective ones at that, isn't that making a huge mockery of the constitution and democracy?

Also the JCA is most self-serving at best. I am not yet convinced by Tiffany's argument.

Sure, the English vernacular may be Tiffany's mother tongue and she can manipulate the phrases to suit her argument - be it legal or otherwise, but as a Kanaka of this great land I am left to ponder about why her elucidation was not presented in layman's language to distiguish the facts from the truth in this contentious issue.

This Kanaka is not convinced. Get to the point Tiffany and convince me through simple logic with regard to why those Acts were instituted post-haste without proper debate and consultation in the first instance.

The circumstances therewith are conspicuously questionable. Mi no bilip long rhetoric bilong dispela lawyer.

Paul makes a good point here - that is, the overbearing focus of lawyers and legal advice to be centered on minutiae of legal argument.

Unfortunately, this is how lawyers are trained to see and stand their ground on. The "bigger" picture is hardly thought of.

However - this is where justices come into play. They form judgements with the "bigger" picture in mind.

Sure there is nothing technically illegal about Parliament enacting the Judicial Conduct Act. But it is clear that the motive of the Judicial Conduct Act is questionable, and the process followed abhorrent.

It is also questionable whether the act and consequent legislation are in the "spirit of the constitution".

I highlighted "spirit of the constitution" because PNG, as a relatively young democracy, only has the constitution.

Maybe it is time for PNG to actually create a set of conventions or more appropriately principles of the constitution - such as something that could be regarded as describing the "spirit of the constitution".

In saying this, I'm a stickler for process. I believe the Constitution does need to be followed to the letters on all its pages - even when certain legislation was enacted via the wrong process.

JCA was not passed in accordance with correct procedures for a constitution altering bill - look at all the hoops the women's bill had to go through (and failed to completely navigate).

JCA was rushed through without proper process followed. parliament even had to amend it already because they forgot some things. So that is a lie.

The 12 December issue was that parliament did not follow the correct procedures to remove Somare.

Really, parliament should have accepted the decision and waited for Somare to return to parliament - then done a no confidence motion in Somare and then they could have got rid of him legitimately.

Maybe Team Onamah got some bad legal advice.

Also, courts do have to make unprecedented decisions sometimes. How do you think the predecents were set in the first place? Did they all stem from disputes over British pig farms in medieval times?

Tiffany's need to get back at the Ramu decision has made her fall to the dark side.

I have read through Tiffany Twivey-Nonggorr's "Democracy being destroyed by the Supreme Court".

It sounds clear to me that the CJ's actions need to be reviewed and that this process is set out in the Constitution.

What are the other leading judges, constitutional lawyers and law professors saying about it? Do any of them agree with Tiffany?

I think Tiffany argues well to the “letter of the law” and puts the spotlight quite correctly on the judiciary for being part of the mess.

Following the letter of the law is one thing but the intention of the act is, in my view, quite important.

Whilst parliament may be the supreme law making authority on the land as argued by Tiffany, it is its intentions in making laws that matter the most.

If indeed parliament is supreme, then we must ask questions about its intentions at all times to keep it from abusing its powers, which (if I read Tiffany correctly) appears to be quite absolute.

What is it that parliament (and by extension the people) want to achieve by enacting a particular piece of law? What purpose does it serve and can we demonstrate the “greater good” benefit of such a law?

Can parliament make all and any law regardless of how blatantly illogical or immoral it may be?

These questions must be answered in a very basic and straight forward way without getting tangled, and possibly lost, in the jungle of law literature.

Nothing beats logic. Simple and logical answers to the above questions will go a long way in putting my doubtful mind to rest.

Perhaps the reason Injia and his colleagues are resisting pressure from parliament is because they are not convinced about the intention of parliament making certain laws.

An initial concern is that while some are tripping over the individual tree trunks and branches, no one is actually looking at the forest.

The pre-eminent concern is surely not a matter of what parts of the Constitution are working or not working or correctly being followed. It is whether the nation is effectively and accountably governed.

Some lawyers seem to get lost in the minutiae of legal argument and then possibly start to believe that the law has a raison detre of its own accord. That then leads to the mistaken belief that those with a legal degree are the only arbiters of what is right or wrong.

The law of the land only exists to ensure the nation is properly governed by the people, for the people, of the people etc.

Were the legions of lawyers who are currently making their living out of all this legal argument to actually lift their heads out of the trough and look around them at what is happening to their own country, then, and only then might some start to effectively do something positive and constructive about getting their country back on the rails.

Either justice is seen to be done or it is ineffective. Delays over legal niceties have effectively delayed many instances where justice should have been enacted but has been ameliorated or simply lost and forgotten.

When will we hear the PNG Law Association come out with an instruction to its members to stop all unnecessary legal action and actually finalise all those cases that are currently being held up with legal obfuscation?

Did I hear the flutter of pigs wings just now?

Tiffany's piece focuses on the technicalities of the laws which have since driven the decisions of the O'Namah government.

I have been digesting what she has put on paper - and there are some significant issues/questions which I believe she should expand on/answer, if available to do so.

Although most of what Tiffany says may be technically correct, there is no doubt that the reasons why the Judicial Conduct Act was introduced are corrupt in the sense that it is a self-serving piece of legislation wrapped up in the guise of judicial reform.

The Chief Justice is our most respected judicial officer. Any movement to discipline him will of course be met with criticism from the judiciary and the public, particularly when it is perceived that the executive is pushing for this outcome - which is the case here.

In this case, the CJ has indeed made the determination that the allegations are not sufficient for his removal and that the decision to suspend him and appoint a tribunal was for other purposes.

Although that first assertion is questionable, the second is clear for all to see.

What this impasses has highlighted is the possibility of changing the structure of the Constitution so that the CJ, when alleged misconduct has been placed against him, should be reviewed by a process which is immune to Parliament's participation in the decision.

This is a key issue here.

I think the Constitution in this case can be open to misinterpretation - it needs to be cleared up.

Keith - maybe PNG Attitude readers can compile a list of succinct questions for Tiffany to answer and to be again shared on PNG Attitude.

Good suggestion by Tavurvur. Any questions or comments can be included through the Comment link below - KJ

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