Getting the judiciary to toe the line

By John Nonggorr

Dr. John Nonggorr
THE O’Neill-Namah regime has proved the true purpose of the Judicial Conduct Act that it got parliament to pass in less than 24 hours without discussion or debate.

It was designed to target judges who will not toe its line.

If what is reported is correct –  that the regime has used this act to pass a motion in parliament today to refer the chief justice (Sir Salamo Injia) and Justice Nicholas Kirriwom to the governor-general – parliament has now directly taken over the disciplining of judges.

This is unheard of in a democracy.

The O’Neill-Namah regime has now suspended two senior PNG judges who ruled, on Dec 9 last year, that the O’Neill-Namah government was formed in breach of the Constitution. The same issues are now before the Supreme Court.

The O’Neill-Namah government has disciplined the two senior judges for going against its regime. This is a major threat to the judiciary.

Which other judge now dares to rule against this regime?

Where is the rule of law?

What really has the chief justice done wrong?

What has Kirriwom done wrong?

Why are they being targeted?

Prime Minister Peter O’Neill has said that the Judicial Conduct Act was an innocent piece of legislation to strengthen the judiciary. But now, people will realise how sinister this act is.
By the operation of section 5(2) of the act, Sir Salamo and Kirriwom have been referred to the head of state.

By operation of section 5(4), the governor-general will appoint a tribunal to investigate them. Because that paragraph does not say who will recommend the names of members of the tribunal, it will be the NEC.

So, the O’Neill-Namah regime will tell the head of state who will constitute a tribunal to investigate the two judges. This conflicts with the Constitution. But, that is another issue.
More serious is section 5(8): “Where the parliament has made a referral of a judge to the head of state pursuant to sub-section(3), such judge shall not hear or continue to hear legal proceedings or exercise his powers as a judge pending the provision of a report from the tribunal to parliament and, in the case of the chief justice, the deputy chief justice shall act as chief justice.”
Consider the impact of this provision.

First, the two judges have effectively been suspended – they cannot perform any duties now. They have not been given a right to be heard before being suspended.
Kirriwom has reportedly given his reasons in the Supreme Court why he will not disqualify himself from sitting on the bench.

The O’Neill-Namah regime has now used parliament to suspend him because Kirriwom refused to disqualify himself.
This is what this act was all about – drag a judge before parliament in a motion if the judge does not toe the government’s line. (The government has been scheming this – by publicising an internal memos in newspapers! How can a government wage a campaign against judges?)
Members of parliament who are accused of wrongdoing are investigated by the Ombudsman Commission. The commission gives them every opportunity to answer allegations.

The Ombudsman Commission considers the responses against the allegations. It does not suspend MPs. The ombudsman, if it believes that there are valid grounds, refers the allegations to another body, the public prosecutor to consider all the materials.
An MP is never suspended. After the public prosecutor considers the material and forwards the material to the chief justice, the MP is never suspended. Only when a leadership tribunal is set up is an MP suspended.

Under the Judicial Conduct Act, the chief justice and Kirriwom are automatically suspended by mere passage of the motion in parliament. That is the effect of section 5(8) quoted above.
Second, the chief justice and Kirriwom will now wait until after August 2012 to know what their fate will be. If this sitting of parliament is the last before the general election, effectively, the two judges have been suspended for more than four months – they will not be judges during the election period and beyond because the tribunal has to report back to parliament on their fate.

The O’Neill-Namah regime will keep the two judges out of deciding election disputes.
But, this act is not just about the chief justice and Kirriwom. Other judges have to be wary now. The powers in the act will be there to deal with any judge who disagrees with the government of the day on constitutional or other cases.

All that the government of the day, or a powerful individual in government, needs to do is to challenge the judge sitting on a case. Whether the challenge has any basis or not does not matter. Someone can simply make up an incident.

Remember – three witnesses swore affidavits stating that they saw the chief justice talking to Arthur Somare outside a nightclub early one morning in Port Moresby. The Supreme Court found that to be false.

But, now, if a similar allegation is made against a judge (even if false), a judge will be challenged to disqualify himself. If he does not, then, parliament will move a motion and suspend the judge.
It is that simple.

Is that the sort of country that PNG wants to be?
Where is the rule of law?
Are judges going to live in fear of MPs?

The executive arm of government and the legislative arm of government were so compromised that Papua New Guineans did not have any regard for them. Now, the O’Neill-Namah regime has finally destroyed the judiciary.

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