Why the Judicial Conduct Act 2012 is Dangerous
When the O’Neill/Namah government passed the Judicial Conduct Bill 2012 on March 20, it immediately triggered a national outcry against the introduction of the Bill.
It started with the Leader of the Opposition, Dame Carol Kidu, one of only a few number of voices allowed to argue against the Bill in Parliament.
Since March 20, the Community Coalition
Against Corruption, the PNG Trade Union Congress, the PNG Chamber of
Commerce and Industry, and Transparency International PNG, have all issued statements calling for the Judicial Conduct Act 2012 to be reconsidered or repealed.
In addition, students from the University of Papua New Guinea (UPNG) marched peacefully in protest
against the Bill on Friday, 23 March to Morauta Haus, where they
presented a petition to the Prime Minister’s Chief of Staff. They are
again organising another protest march, and the boycotting of classes
today, in tandem with Unitech in Lae and other students enrolled in
tertiary institutions around the country.
Even convicted criminals in PNG’s maximum security jail Bomana in Port Moresby, have threatened to break out en masse if the Act is not repealed.
Public pressure against the passing of
the Judicial Conduct Act 2012 has been significant and is growing – so
much so that Peter O’Neill addressed the nation over radio,
his first such address to the country since gaining power in August
2011, explaining to the people why his government introduced the Bill.
O’Neill has now delayed the introduction
of the Act and has instead referred it on to the Constitution and Law
Reform Commission for it to be appropriately scrutinized, something he
should have done long before even considering entertaining the bill in
parliament.
There have been some solid analysis done regarding the Judicial Conduct Act 2012, notably that of the Student Representative Council of UPNG, who are manifesting the physical opposition to the Bill through their demonstrations.
New Thoughts: Why the Bill is Dangerous
In addition to the points made by these
groups listed above, I would like to add my own thoughts to the public
discourse as to why the Judicial Conduct Act 2012 is dangerous. I
identify three key reasons why:
Firstly, let me make the point that the basic ideas contained within the proposed Judicial Conduct Act 2012
do, to a very restricted degree, have merit for democratic nations
around the world which employ or utilize the idea of separation of
powers as the balancing mechanism for effective government, to at least
consider and to review.
The definition and function of separation
of powers within practicing democracies the world over varies, and over
time, do change ever so subtly in order to accommodate the relevant
evolving society – culturally, socially, politically and even
spiritually.
What Peter O’Neill is attempting to do, and what he has alluded to in his address to the nation,
is that the Bill is an attempt to introduce reform into the judicial
system of PNG. In this case, it is inaccurate to say that it is an
attempt to reform the judicial sector, like for example, a government
policy to increase the number of prison cells to deal with overcrowding.
More accurately, this attempt at “reform”
(the word ‘reform’ refers to something being ‘corrected’ or
‘rectified’), is a constitutional change to the actual positioning of
the Judiciary in relation to the Executive, and simultaneously, the
awarding of powers to the Executive which provides the perception, and
indeed the possibility and opportunity, for the Executive to manage or
interfere with the affairs of the Judiciary.
This is the first reason why the Bill is dangerous.
The idea of amending or tweaking the
concept of separation of powers as outlined in a constitution or a
nation’s set of founding documents, is not a new idea – nor is it a
sinister or illegal idea, if it is genuinely mooted, discussed,
consulted upon and reviewed, prior to it being implemented.
What must be severely questioned here in
the passing of the Judicial Conduct Act are two key points, which are
the remaining two reasons why this Bill is dangerous: 1) The purpose or
premise of introducing such legislation; and 2) The process followed to
pass the bill into law.
In regards to the O’Namah Government (a
combination of O’Neill and Namah), great scrutiny must be placed on the
reason(s) why the Judicial Conduct Act was introduced, and the process
followed to do so. In both cases, and bearing in mind the gravity of the
first reason why this Bill is dangerous, it is very clear that the
reasons why and the process followed, do not stand up to the levels of
acceptability deemed appropriate by any neutral observer.
To illustrate the first key point and second reason why this Bill is dangerous, Attorney General Dr Allan Marat is on record
stating that the Judicial Conduct Law 2012 was a necessary enactment to
get around the Judiciary’s moves to stop government attempts to suspend
Sir Salamo Injia.
This is legislation drafted, introduced
and passed by Parliament for all the wrong reasons – and quite frankly,
is not only immature and abhorrent, but is an abuse of process and goes
against the spirit of PNG’s Constitution.
To illustrate the second key point, and
the third reason why this Bill is dangerous, the Judicial Conduct Bill
2012 passed through parliament with unparalleled urgency, with a vote of
63 – 7, consecutively voted upon three times, less than 24 hours after
it was introduced, and with 39 sitting Members absent from Parliament.
It passed with no prior consultation with
any organisation or body, or submission, from any party or individual
not eligible to sit in Parliament.
Conclusion
Ironically, if the legislation, or a
similar type, was mooted in more quieter times where the Judiciary and
the Executive were working in unison together, then I do think that
there would have been the possibility, as long as the reasons and
process followed were true, fair and open, that the government would
have garnered positive and genuine discussion from all parts of society
as to whether or not such a tweaking of the separation of powers needed
to be made.
The government may have even succeeded in
getting the Judiciary to support the amendment(s), and even more
appropriately, asking the Judiciary to to lead it!
K2 is how they describe in softball. Retrospective law No.3 and out, We will have new government after election. Mark my word O'Neill will not return.
ReplyDeleteIs Speaker Nape facing contempt of court charges too? If so the corruption cocktail in parliament and at executive government being spiced by judiciary only gets sexier!!! Oh gosh where we headed with pigheaded machos wearing the nation's crown! And if you do not know this is additional truth- pm is highlander, speaker is highlander and CJ is highlander. They may be most qualified but where is regional balance? The Constitution of PNG is very clear on this but never mind we broke the Constitution through our elected representatives for their power play against our interest. It's mad mad mad and more madness.
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