My views of the Judicial Conduct Act 2012

By STEVEN ANDRE

I have cited a copy of the Judicial Conduct Act 2012. I looked at the Act and here is what I have assessed (my personal assessment).

The Act appears to have only 5 principal provisions.

The preamble to the Act reads: “Being an Act to implement Section 157 of the Constitution, to safeguard, protect or promote the integrity of our legal system based on the principle that an independent, fair, and competent judiciary shall interpret and apply the laws that govern us and that judges, individually and collectively, must respect and honour the judicial office as a public trust and strive to enhance and maintain confidence in our legal system, and for related purposes.”

Section 1 aligns the Act to be consistent with the Constitution. Section 2 provides a short definition of some of the words used in the Act. Section 3 imposes a duty on the Judges to uphold the integrity of the judiciary as outlined in the preamble. Section 4 discourages judges from conducting in a manner that brings disrepute to the judiciary. The final section (5) provides for instances where the impartiality and integrity of the judges are questioned and how to deal with those circumstances.

I acknowledge the concerns of the public including the University students that there were no wider community consultations before the Act was passed. That may have raised suspicions and I am not an exception. I also agree that making the law with retrospective effect to November 1st, 2011 as sinister yet Parliament in its wisdom did so. The Prime Minister had announced that the implementation of the Act will be delayed.

My assessment of the law is that” However, this law was passed without consultations because of the following reasons:
• Parliament has the authority to make laws. Apart from Constitutional laws, Acts of Parliament can be passed in a single day.

• Parliament can make laws to provide check and balance on the actions/conduct of judges as allowed by our Constitution, hence Parliament did not exceed its Constitutional boundaries.

• Laws are created to cure a mischief. What is the mischief in this instance? The mischief created by the actions of certain judges was such that no simple disqualification applications would cure hence this law. Interfering with the course of justice is different from regulating the conducts of human beings who sit to administer justice for all. Human beings have and can fall hence we need laws to regulate their conducts.

• Even when disqualification applications are made, in most cases, the judges who are the subject of the application continue to sit and determine their own fate. In other countries, it is ethically proper for the presiding judge to allow another judge to hear the application.

• The central issue the subject of this law is the protection of the integrity of the judiciary and avoid judicial bias.

• The law on judicial bias is not new in this country. It is well established by case law. Parliament had not enacted a totally new law. All Parliament did was to codify the existing law to ensure that statutory law take precedence over the case law in cases of uncertainty in its interpretation and application. Since the law of bias goes towards the conduct of a judge, it cannot be left to the judge’s discretion as they may not necessarily bound to follow case precedents at times. It is the responsibility of Parliament to promulgate the established principles into written law to give clarity and prominence.

• The Act did not give power to Parliament to decide the fate of a judge. The first instance of application for disqualification on grounds of bias remains with the Courts.

• Parliament is empowered through this Act to deal with a worst case scenario where a judge refuses to step down and insists on a case. Parliament is given the power to initiate the appointment of a tribunal but does not determine the substantive issues. It is left to the tribunal which is comprised of judges and appointed by the Head of State. Even after the finding and recommendation is made by the tribunal, Parliament then recommends the findings to either NEC, JLSC or OC as the case may be. Those institutions are empowered by the Constitution and the respective Organic Laws to deal with judges who are misconduct. It therefore appears that this Act neither derogates nor duplicates the roles of the existing institutions. It supplements by initiating the process only in worst case scenarios.

• I see the reason why Parliament had to be involved in initiating the disciplinary process in that the institutions such as Ombudsman Commission and Judicial and Legal Services Commission (JLSC) who can deal with judges are not actively performing their role. One contributing factor is that the Judiciary as a third arm of Government cannot subject itself to some inferior institutions. The judiciary and the judges do not have unfettered power. They are not the power unto themselves. If the judiciary is acting beyond its powers and encroaching into the legislature and Executive, Parliament is the only authority allowed by the Constitution to provide check and balance through legislation. Parliament had to act in the instance to cure a mischief.

• It is part of the democratic process that the three arms of government provide check and balance on each other without encroaching into another’s province.

We have all witnessed what transpired since the change of Government on August 2, 2011. Court room Lawyers do know what are your chances of having another judge hearing your application to disqualify. If a reasonable person having all the facts in mind sees that the judiciary has gone too far, what does that amount to? Justice should not only be done, but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

Let’s look at things objectively.

Comments

  1. We are aware of your views. You have no experience in lawmaking by government. May be you are Sabbath Christian? Law must be passed to come into operation from the time it comes into force. Why have it come into force on 1 November 2011? Dies this not tell you that Parliament wants Chief Justice not to hear it's reference on question of who is Prime Minister of PNG? You need to make Speaker know that he is going to jail for contempt. Madi for him!

    ReplyDelete
  2. Belden Namah wants PNG to know that lawyers are playing with him. How did he get a judge's internal memo? Is that not corruption?

    ReplyDelete

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