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Wednesday 18 April 2012

Dissecting the Judicial Conduct Act

The author was fortunate to grab hold of an e-copy of the controversial Judicial Conduct Bill 2012. The Bill is made up of five (5) different sections, but the part most debated about is Section 5, which requires the judge “to perform duties of judicial office impartially and diligently.”
   Subsection 5(1) defines the instances where the Judges’ impartiality (the ability to show no favouritism or nepotism) is questioned, meaning that the judges have a higher chance of being biased. Such instances include cases involving clients and lawyers who are relatives of the judge, cases where the judge is himself a witness and cases where the judge was involved in as a lawyer before becoming a judge. Obviously, this is vital to strengthen role of the judiciary, especially in terms of maintaining and ensuring that members of the judiciary remain unbiased and unprejudiced. Being the constitutionally appointed interpreter of the laws of the nation does not mean that a judge cannot be judged.
   Subsection 5(2) provides that if it ‘appears’ to Parliament that a Judge has breach subsection 5(1), Parliament will refer the Judge to the Head of State. It can be inferred from this that if the Parliament, or a member of it, dislikes a judge (even for personal reasons), they can go to extremes to dig out any instances pursuant to subsection 5(1), and table it in Parliament as basis for a judge’s referral. This subsection is quite malicious, and can be both deadly venom, and saving antivenom.
   Subsection 5(3) provides that the tribunal investigating the Judge concerned will consist of a chairman and two others, each of whom must be a judge or a former judge in PNG or other countries that have the same legal systems as PNG. The Head of State will appoint the tribunal members.
   Subsection 5(4), if I understand it correctly, prevents any judges from issuing a stay or restraint order to prevent themselves from being investigated. Their arm that issue stay orders on decisions against themselves is being crippled. In actual fact, this piece of legislation prevents the judges from using (or abusing) their powers, ranks or title to stay investigations into their own alleged misconducts. If such is the case, they should do away with stay or restraint orders in the court systems, because it simply provides protection from the (whether rightly or wrongly) accused.
   Subsection 5(5) gives power to the Parliament to ‘take whatever action necessary’ on the judge if he is found to have breached subsection 5(1). It includes removal of the Judge in accordance with some sections of the Constitution. Now, considering that the three arms of government are constitutionally equal and independent, this particular section of legislation seems to make the Legislature (and the Executive, which are all parliamentarians forming the government) more powerful than the judiciary. Furthermore, what guarantee do we have that the Parliament itself won’t be biased?
   While the author agrees with most of the points outlined in the Bill, he disagrees with this particular one (subsection 5(5)). Since the three arms of the government (The National Parliament, The National Executive and The National Judiciary System) have (and must be kept) separate and distinct powers and functions as provided in Section 99 of the Constitution, it is unconstitutional for one to claim unlimited jurisdiction over the other. The Constitution in fact made it clear that these powers and functions of the three arms are “non-justiciable’ (cannot be tried in a court of law). Parliament, in passing the Act, has usurped the powers of the Judiciary, making itself the legal body to refer members of the Judiciary, who are constitutionally separate.
   Subsections 5(7) and 5(8) provide that the judge in question must step down from his role as a judge while being investigated. Any orders or judgment he made must be stayed (not effected for time being).
   Now note one particular sentence in the Bill that the author finds very illogical. Referring to the Bill, it said: Made by the Parliament to be deemed to have come into operation on 1 November 2011. Although the Bill was passed on the 13 of March, 2012, any misconduct by judges in the past (since November 1, 2011) is a breach of this law. This effectively means that any decision made by the Judge in question, prior to the passing of this Bill, is stayed, if not, null and void until the judge has been cleared off the allegations. This may be legal, but doesn’t sound logical. It is pathetically insane to make such a law. The implication and motive is clear: the Supreme Court’s decision on 12th December 2011, to reinstate the Somare-government is been nullified or stayed because Chief Justice Sir Salamo Injia has breached the new Act, even before it became an Act!
   Note too that Opposition Leader Lady Carol Kidu and Morobe Governor Luther Wenge said that while Parliament voted for and passed the Judicial Conduct Act, it was another version, the Judicial Control Act that was certified. The Speaker claimed that it was just a printing error. How in the world can the printer mistakenly print a different version of the Act, unless it has been ordered to do so? Scaringly, the Name Judicial Control Act sounds threateningly dictatorial.
   It seems that the Judicial Act, though trying to strengthen the Judiciary, gives unconstitutional jurisdiction to Parliament over the Judiciary.

   Being one arm of the government, the Parliament with its legislative powers, is not, and should not be the right body to refer a judge to the Head of State. Even having said thus, the Head of State is not a neutral body to set up a tribunal of judges because constitutionally, the Head of State is part of the National Executive (Section 139). Parliament can use its powers to suspend the Head of State as they did to Sir Michael Ogio.
   In the author’s opinion, the most neutral body is sadly the very authority that remained mute throughout the recent turnout of events – the Ombudsman Commission.
   The OC is an independent institution established directly by the Constitution, and aimed at providing good leadership and governance. In part, it aspires to ensure that all government bodies are responsible, fair and indiscriminative in the various services to the people, and it supervises the Leadership Code, guarding against the abuse of power by those in the public offices. It listens to the cry of the people affected and acts accordingly. Apart from being constitutionally rendered independent, and thus its neutrality, it is the appointment of the Commission that promises great neutrality.
   The OC is made up of the Chief Ombudsman, and two other Ombudsmen. They are appointed by the Governor-General, acting with and with advice from the Ombudsmen Appointment Committee. The Committee consists of the Prime Minister as Chairman, the Opposition Leader, the Chief Justice, the Chairman of the Public Services Commission and the Chairman of the Permanent Parliament Committee on Appointments.
   Because of the position of each member of the Ombudsman Appointment Committee, the author believes that the most neutral authority to set up leadership tribunals for members of the Executive, Legislature and Judiciary is the Ombudsman Commission. The three arms of the government each has a representative in the Ombudsman Appointment Committee.
   If the new Judicial Conduct Act is to be constitutionalised, it must be done so with subsection 5(5) amended such that the Ombudsman Commission is the authority to set up tribunals for judges rather than the Parliament doing so. This should distinctly maintain the jurisdiction, power and functions of each of the three arms of government: the National Executive, the National Judiciary System and the National Parliament (Legislature). When one of the arms behaves as if it is more powerful than the others, poor Mr. Democracy will melt like an ice berg, and disappear into the ocean of tyranny.
   Isn’t that the hidden agenda? Maybe.


1.      Click to read an argument to constitutionalise the Judicial Conduct Act. http://asopa.typepad.com/asopa_people/2012/04/lets-constitutionalise-the-judicial-conduct-bill.html
2.      http://www.pngperspective.com/news/the-oneill-govts-judicial-conduct-bill-which-is-now-an-act-/ Click on this link to see a copy of the controversial Judicial Conduct Act)
3.      Click on this link to find out more about the Ombudsman Commission http://www.lawandjustice.gov.pg/www/html/118-the-ombudsman.asp

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