Integrity of judiciary vital

LAST week, the attention of Papua New Guinea riveted on the National Executive Council when it decided to suspend the chief justice.
Many, including this newspaper, cried foul and saw the decision for what it was – a serious incursion into the independence of the third arm of government –the judiciary.

That decision was stayed by Justice Bernard Sakora last Friday sitting as a one-man Supreme Court and the NEC on Monday rescinded it.
This week, the attention is focused on the courts.
How will it punish those who have incurred its contempt? How will it deal with the special Supreme Court reference before it? And, especially, whether the chief justice will allow himself to continue to chair the bench when it brings down its decision on Dec 9.

The reference was filed on Aug 5. All matters relevant to the case were dealt with and arguments were presented by counsel for the various parties by Oct 28 when the Supreme Court adjourned to Dec 9 for the crucial decision to be handed down.
Since then, we have seen two attempts by the NEC, firstly to suspend the East Sepik provincial government on grounds that its actions were undermining the authority of parliament.

This was dropped before it ever became a decision on advice, we suspect, that the NEC would have been held in contempt.
The second attempt was the decision on Nov 10 to suspend the chief justice and that did incur the contempt of the court and was rescinded four days later.
The contempt case against Deputy Prime Minister Belden Namah and Attorney-General Dr Allan Marat will now be heard on Dec 12, three days after the Supreme Court brings down the decision on the reference.

Given all that has gone on these past few days and, in all fairness, can the chief justice participate in the decision?
And, if he did not, would it collapse the case and defer the decision indefinitely?
This is a question that only the chief justice can answer.
In the minds of reasonable people, the chief justice can be said to be compromised now in relation to the reference.

Quite apart from the merits and demerits of the allegations which cabinet announced as the reasons for the suspension of the chief justice, the Dec 9 decision, if Sir Salamo were to sit as chairman of it and if it were to rule to oust O’Neill, reasonable people might infer that he was out to get the NEC for what it did to him.
Without even suggesting that the chief justice would decide the case based on what might happen to him if the O’Neill government is confirmed, the fact is that the test for whether a judge should hear or continue to hear a case is not just what the situation is but what might be the case to a reasonable observer.

An allegation of bias can be successful if it can be shown, firstly, that there is actual bias, or, secondly, that a reasonable observer thinks there is bias.
The test which is usually applied is that which was set out by the high court of Australia in a case called Livesey vs NSW Bar Association (1983] 151 CLR 288: “...a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind the resolution of the question involved in the matter”.

In this case, cabinet might have withdrawn its decision but the fact that the decision was announced at all, along with the reasons for it, may already have left in the fertile minds of people such emotions, doubts and conjecture that would make a reasonable member of the public entertain “reasonable apprehension”.
The judiciary has acted courageously and judiciously on this matter because it determined that there was attack upon its integrity and independence and that the NEC action was nothing
less than an attempt to influence the court’s decision on an important matter before it.

It would be most judicious for the chief justice to continue down this avenue by excluding himself from the bench when a decision is handed down.
This might further delay the decision, which might well be the real intent behind all this, but in the end no allegation of bias, actual or imagined, would be brought against the judiciary and its head, the chief justice.
In that the integrity of the judiciary and its independence would be preserved and that is the best outcome we can hope for.

op/ed

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