A REPLY TO TIFFANY TWIVEY PART 1 OF 3

NOU VADA

Tiffany Twivey’s claims that this political impasse has been caused solely by Courts is unbelievably biased and her Article on PNG Attitude Blog is hardly a proper or a proper enough assessment of the political impasse. It is at best a piece of propaganda from a Government consultant being paid a lot of taxpayer’s money.

Twivey states: “Repeat, these sorts of orders have NEVER, EVER been made by any Court in a Westminster

system of democracy as they are clearly without jurisdiction and are unconstitutional.”

First of all let me just say that it is immaterial that such orders have never been given in the Westminster system. It is immaterial because Papua New Guinea is a constitutional democracy and the powers of the Government’s three arms are set out in the Constitution.

Twivey’s mention of the Westminster System is at best a spin-doctor tactic… to make her argument broader than it actually is. In fact her argument is narrow and misleading as you will see.

Ms. Twivey opens her attack on the Judiciary with the statement:

The current constitutional crisis in PNG has been created by certain members of the Supreme


Court, not by O’Neill or by Somare. This has happened in three ways:


a) Unconstitutional and undemocratic Orders made by the Supreme Court


b) The refusal of Chief Justice to recognise the constitutional powers of the NEC for his


removal, placing himself above the law, and


c) Refusal by certain Judges to recognise the unlimited constitutional power of


Parliament to legislate – particularly, the Judicial Conduct Act


We will look at Ms. Twivey’s arguments on each point. We will look at her claims and see if the claims are grounded in fact and accuracy.


A)     UNCONSTITUTIONAL AND UNDEMOCRATIC ORDERS MADE BY THE SUPREME COURT

Ms Twivey’s claims is that the Supreme Court has made unconstitutional and undemocratic orders are related to the Decision of December 12 of the Supreme Court that declared the election of Prime Minister O’Neill invalid and unconstitutional and declared that in light of O’Neill’s unlawful and incorrect ascension to Prime Minister, the right thing to do, in the opinion of the Court by a 3-2 majority, was to reinstate the Prime Minister that was deposed by the O’Neill Government, the Grand-Chief Michael Somare.

We do acknowledge Ms. Twivey’s statements of the law, especially with the Constitution:

On the contrary, section 115(2) of the Constitution expressly states that “There shall be

freedom of speech, debate and proceeding in the Parliament, and the exercise of those

freedoms shall not be questioned in any court or in any proceedings whatever”. Section

115(3) of the Constitution then provides “No member of the Parliament is subject to the

jurisdiction of any court in respect of the exercise of his powers or the performance of his

functions, duties or responsibilities as such.”.

However it is only ordinary for the Court to exercise its powers to interpret the Constitution and dispense Justice. Interpreting the Constitution and dispensing Justice are key functions of the Supreme Court.

Before we address Ms. Twivey’s contention, let us look at the O’Neill election to Prime Minister-ship. The election was unconstitutional for a number of reasons. For our discussion’s sake I’ll point out the most glaring then. It is s 142 of the Constitution that deals with the Prime Minister.

142. THE PRIME MINISTER.

(1) An office of Prime Minister is hereby established.

(2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

(3) If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(4) If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

Therein lies the genesis of our problem. After Somare was removed by the Speaker acting upon a “comprehensive legal brief” alleged by many to have been written by Ms. Twivey herself, Parliament immediately appointed Peter O’Neill as Prime Minister, on the same day, which is inconsistent with the Constitution.

Forever August 2 2011 became etched in the memory of all Papua New Guineans. If due constitutional process would’ve been followed, the election of Peter O’Neill would’ve taken place the next day. But they couldn’t do that now could they? Why? Because if Somare was sacked by the Speaker, which I doubt the Speaker has powers to actually do, then Sam Abal would’ve still held the post of Prime Minister in an acting state whilst waiting for the constitutional requirement for the new Prime Minister to be elected the next day. Abal had to be Prime Minister overnight because the country cannot be held in limbo without a Chief Executive Officer. That would of course have meant an overnight political power struggle for numbers, and most likely, the NA led alliance, holding the claim to legitimacy under Abal, would’ve won the numbers game overnight, and O’Neill would never have been elected Prime Minister on the next sitting day.

So they broke the law. Parliament I mean.

For the Supreme Court, it was clear that O’Neill was not Prime Minister. So who was? While s 115 of the Constitution prevents the Court from directing Parliament, s 158 states:

158. EXERCISE OF THE JUDICIAL POWER.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

So folks, let’s put ourselves in Injia’s shoes. Let’s put ourselves in the bench of the Supreme Court of Justice, the only Constitutional Office empowered to interpret the Constitution. How would you best dispense Justice in this peculiar case?

We now know O’Neill’s election is invalid and O’Neill was unlawfully elected to Prime Minister. What do you do? Do you pretend that the laws weren’t broken? No. The Court would return the status-quo. This is where I don’t personally agree with the Court. Maybe demanding the reinstatement of Somare wasn’t a good move to do. But the law isn’t supposed to be moulded to suit my private jurisprudence. I would’ve liked the Court to have remitted the matter back to Parliament, and declared a situation where the Prime Minister-ship was in a genuine state of dispute that only Parliamentary politics can solve; yes, the numbers game. But Judges aren’t politicians. Judges dispense justice according to Law, and to a secondary degree, the public policy. So the Judges gave Justice according to Law, and though I personally don’t agree with the reinstatement of Somare, that is exactly what the Judges did – to correct the errors. That is what they do for a living.

Twivey raises three instances of Judges being bik-het:

The orders made by certain members of the Supreme Court are

1. Order for Parliament to re-instate Somare as PM (12 December 2012)

2. Order for a Stay on a decision of Parliament (April 2012)

3. Order for a validly passed Act of Parliament to be injuncted from implementation.

(April 2012).

We have dealt with Twivey’s point No.1 adequately above.

Let us look at points Number 2 and 3 now.

In April 2012, a three men bench unanimously issued interlocutory orders to temporarily stop the enforcement of Parliament’s motion to suspend Justice Kirriwom and Chief Justice Injia pursuant to s 5 of the Judicial Conduct Act and also to temporarily stop the enforcement of the Judicial Conduct Act pending the outcome of the full hearing on the constitutionality of the Judicial Conduct Act.

Now suppose if Parliament makes a law tomorrow to kill you next week and you take the matter to court, of course the Judges, who are duty bound to make sure that their decisions are thorough will take time to research and think over their Judgements carefully. They may take two weeks to come up with their decisions. You don’t have two weeks. So, the Court issues a temporary order to stop Parliament’s law and motion to kill you from being enforced until the Court determines whether that law is a good law or not. The Court wants to protect the interests of all parties and it wants to maintain the status-quo as much as possible, while it decides on a final outcome.

Twivey’s Points Number 2 and 3 are full of shit.

Courts have powers to declare Acts of Parliament unconstitutional. A few examples are in order for the confused and the skeptical small band of mostly white women on facebook (no racism intended here) who are die-hard Twivey fans.

SCR No 1 of 1986; Re Vagrancy Act (Ch 268) [1988] PGSC 29; [1988-89] PNGLR 1 (13 April 1987)

This is where the Supreme Court declared the Vagrancy Act, an Act of Parliament, wholly unconstitutional.

Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates [2010] PGSC 3; SC1057 (7 July 2010)

This is where the Supreme Court declared significant parts of the Organic Law on the Integrity of Political Parties and Candidates unconstitutional.

In re Re-Election of the Governor General [2010] PGSC 32; SC1085 (10 December 2010)
This is where the Supreme Court declared Parliament’s motion to elect and election of Paulius Matane to be Governor-General again as wholly unconstitutional

Point Number 2 is this: The Supreme Court in April 2012 injuncted a motion by Parliament pursuant to s 5 of the Judicial Conduct Act to suspend Justice Kirriwom and Chief Justice Injia and subject both men and their families to the full glorious force of the Judicial Conduct Act that Tiffany Twivey drafted.

What is the full glory of the Judicial Conduct Act? Well, again pursuant to s 5 of the Act, once a Judge is suspended, his right to privacy may be suspended. The tribunal that investigates him will not follow rules of evidence and legal formalities and will inform itself on what is fact. That means the Judge’s (and his family’s) phones may be tapped, emails may be tracked and read. Hell, they may even put listening devices in his house and car. Maybe I’m going a bit John Clancy here but the Judicial Conduct Act is so brief it doesn’t set out the parameters of protecting constitutional rights of these investigated Judges.

Section 57 of the Constitution states that the Supreme and National Courts are the Guardians of the Constitutional Rights of Papua New Guineans and maybe, just maybe, it doesn’t occur to Tiffany Twivey’s elite legal mind that the constitutional rights of Nicholas Kirrwom, Salamo Injia and their families are important and worth protecting.

On another note, s 223 (3) of the Constitution provides that:

223. GENERAL PROVISION FOR CONSTITUTIONAL OFFICE-HOLDERS.

(1) Subject to this Constitution, Organic Laws shall make provision for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders.

(2)….

(3) A constitutional office-holder may not be suspended, dismissed or removed from office during his term of office except in accordance with a Constitutional Law.

Boo-Ya!

Section 223 throws a monkey-wrench in Twivey’s Judicial Conduct Act because the Judicial Conduct Act is not a Constitutional Law (of the actual Constitution or an Organic Law). The Judicial Conduct Act is an Act of Parliament and is inferior in the hierarchy of laws set out in s 9 of the Constitution.

So why must Courts have powers to stops Acts of Parliament and Orders by Parliament? I offer two reasons:

1.       To protect rights of people whose rights may be unjustly breached by these laws and orders

2.       To ensure that the laws are consistent with our Mama Lo

END OF PART ONE

This is a reply to Tiffany Twivey’s defence of the O’Namah Bedroom Cabinet at the expense of the PNG Judiciary (http://asopa.typepad.com/asopa_people/2012/04/png-supreme-court-is-a-threat-to-democracy.html).

This is not a Legal Opinion. Just a ‘Literary Review’. Last thing I reviewed was VS Naipaul’s Mystic Masseur.

PART TWO AND THREE WILL BE BASED ON:

·         THE REFUSAL OF CHIEF JUSTICE TO RECOGNISE THE CONSTITUTIONAL POWERS OF THE NEC FOR HIS REMOVAL, PLACING HIMSELF ABOVE THE LAW, AND

·         REFUSAL BY CERTAIN JUDGES TO RECOGNISE THE UNLIMITED CONSTITUTIONAL POWER OF PARLIAMENT TO LEGISLATE – PARTICULARLY, THE JUDICIAL CONDUCT ACT

FINALLY THIS IS MY APPEAL TO GOOD LAWYERS EVERYWHERE. SPEAK OUT. I MYSELF AM NOT A LAWYER BUT I AM IN A POSITION TO CHALLENGE TWIVEY’S CONTENTIONS AND SO I HAVE. PLEASE, IF YOU ARE A LAWYER, BREAK THE SILENCE AND EDUCATE THE PEOPLE. THE ONLY THING NECESSARY FOR EVIL TO PREVAIL IS FOR GOOD MEN TO DO NOTHING.

THANKS FOR READING AND SEND ME SOME CREDITS … LOL

REGARDS, THE KING WITHOUT A CROWN

Nou Vada blogs at the Edebamona Blogs