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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