Donigi denies involvement in judiciary over-throw

I have not participated fully in the discourse concerning the disqualifications of the Chief Justice and Mr Justice Kirriwom because I believed in the system. Today I believe the system’s viability is at stake.

I have practised law in this country for 40 years and this is the first time that we have a conflict between all three arms of government. We did have the first one between the judiciary and the executive when Minister Rooney was sentenced for contempt of Court and her subsequent release from Bomana on licence resulted in the resignations of the judges.

The crisis that we are now witnessing is two fold. One concerns the ruling and orders of the court on 12 December 2011 in proceedings SCR of 2011. The other concerns the perceived bias by a number of judges of this court. The two in my humble view should not have been confused or fused together into the same bundle. If so we will be digging our own graves. By this I mean the disaster that has befallen the national judicial system.

It is no secret that I used my standing in society as a senior lawyer in this jurisdiction to convince the parliamentarians that the integrity of the national judicial system is still intact and they must give this institution a chance to prove itself. My efforts resulted in the speech by the leader of government business in parliament on 20 January 2012, which is reproduced in Annexure "D" of the Affidavit of Don Pandan sworn 15 February 2012 (Document No. 9 in SCR 2 proceedings. In that speech the leader of government business stated:

"We still have faith in the court system and must therefore go to Court and seek a redress."
SCR 2 of20 12 deals with the crisis created by the ruling on 12 December 2012.
Today, the integrity of the national judicial system is at stake because of the perceived bias by certain members of the other two arms of government. This is a completely different issue.
I was not part of SCR3 of 2011 proceedings. It seems very clear in my mind that the constitutional crisis created by that proceeding is not the creation of politicians.

IT IS NOT THE CREATION OF THE MEMBERS OF THIS COURT. IT IS THE CREATION OF LAWYERS.

It is disheartening that these lawyers are senior counsel and Queens Counsels from Australia. What was their motive for not bringing to the attention of the members of this court on 12 December 2011 that the factual situations have changed on 9 December 2011?

THEIR FAILURE TO BRING NEW FACTS BEFORE THE MEMBERS OF THIS COURT CREATED THE CRISIS THAT THIS NATION IS NOW FACING. IT WAS NOT THE CREATION OF POLITICIANS OR OF THE MEMBERS OF THIS COURT.

I say this because as a bystander at that time, I knew of the events in Parliament on 9 December 2011. I cannot recall how I knew but it may be because that matter was aired in public prior to 12 December 2011. As a bystander who has knowledge of the legal system I had expected counsel in that case to have drawn the attention of the members fo this court to that changed set of facts. Unfortunately, that did not happen and the court proceeded to give its rulings on 12 December 2011. What transpired after that ruling was the dependence on the ruling by one side and the other side exercising their perceived powers under the constitution.

That is why I say the crisis was created by the negligence of lawyers who failed to respect the principle of the independence and integrity of the national judicial system thereby putting at risk that very independence and integrity. These lawyers should be referred to the Statutory Committee of the law Society and be debarred from ever practicing law in this jurisdiction.

This question had to be asked: What was their motive at that time? Were they participating in a grander scheme to destablise this nation? For a very long time Australian commentators have been stating that PNG is a dysfunctional society. Many have including myself have published views that were it not for the integrity of the national judicial system, the statement may be correct. Every member of the bar table today, the Law Society and those on the bench today are part of this national judicial system. We cannot claim to be members of this august institution that has held this nation together since Independence regardless of what happened in Parliament, to be destabilised by outsiders.

In my 40 years of practice in this jurisdiction, I have stood up for the integrity of the legal system. My last effort in doing so was to convince the politicians to file SCR 2 of2012. This is the case that is before us today. I am indeed very disheartened about the turn of events.

We are all here to preserve and maintain the judicial system as the third arm of government. When we fail the system and when we fail ourselves and the oath we all have taken, the outcome may not be very pleasant - as Justice Sakora reminded us two days ago in his recall of English constitutional history. It took a revolution to change the order of the day and the creation of a Bill of Rights.

I have held the position that the profession must be self-regulating and that politicians must not be allowed to have the power of direction and control of it. What is written in the Constitution as to the independence of the National judicial System did not come easily.
Many of you here today except for Justice Sakora, do not know what transpired during the Constitutional Planning Committee days. So let me state as a fact that what is written in the Constitution did not come easily. It took a lot of effort by like minded individuals to cajole politicians to accept it and that independence is reflected in our Constitution.

The politicians begrudgingly came along - they agreed but reserved for themselves some powers, the power under Section 157 of the Constitution. Never in my 40 years of practice would I have dreamed that one day, the politicians would have turned to this section to exercise their reserved power.

I believe the only way to obviate the need for such legislation is to be seen to be capable of self-regulation. This is not a subjective test. It is not a test that should be reliant on the rules of evidence. It is about the perception and perception relies on the application of an objective test. If we are perceived by law makers as not capable of doing that, then the reserve powers could be used - and it appears they have done so in the Judicial Conduct Act. How do we as members of this profession move to bring back some semblance of normalcy?

I had worked hard to combine a number of law societies in Papua New Guinea in the late 1970s, then, and fused them into one institution called the Papua New Guinea Law Society under one Act of Parliament - the Lawyers Act and created the Statutory Committee and established the committee to draw up the Professional Conduct Rules. I did all these to prove to the politicians that we as members of this profession are honourable people and are capable of self regulation. In the event I became the founding President of the PNG Law Society. As honorable members of this profession, we must set for ourselves high standards of behaviour and be responsible for its regulation and implementation.

It seems today we have reached a climax - or is it the abyss. And it is not because of our own doing. It is because we rely too much on southern counsel who may have no allegiance to the integrity of this nation.
Today, of all days, we must put our Melanesian brains together and find a solution to this crisis. As Melanesians in times of conflict, what is required of us? We go into a huddle - we send out emissaries - we look for a compromise. This practice has sustained our communities for thousands of years before the Europeans arrived on our shores.

It is time we put aside the Whiteman's principles and look towards our Melanesian values to find a solution to this crisis. In this regard, I offer my services to play some role in bridging the ever widening gap that is unfolding before our very eyes between the three arms of government.
May I say we are running out of time and in this melee, someone will win and there will be a loser? If we apply the Melanesian values there will be no loser - only winners.


PETER DONIGI