A REPLY TO TIFFANY TWIVEY PART 2 OF 3 – EPISODE 1

“The only power to remove a Chief Justice is vested in the Head of State on advice from the

National Executive Council. There is NO OTHER POWER TO INTERFERE WITH A

CHIEF JUSTICE. It is the ONLY check and balance on the Chief Justice, other than the

leadership code. Sections 179-182 provide for the steps for removal of a Chief Justice.”

-          Tiffany Twivey

Regarding the Statement above by Tiffany Twivey:

“ what a load of half-baked bullshit”

-          Nou Vada

Allow me to Explain.

Before we begin, let me say that Judges are subject to the Leadership Code and investigations by the Ombudsman Commission by virtue of sections 26 (1)(e) and 221 (a) of the Constitution. To save you from scrolling up and down the constitution let me explain that Section 26 sets out who is subject to the Leadership Code and then refers you to s 221 and states that all Constitutional Officers listed under s 221 are subject to the Leadership Code as well. At s 221, the first Officer you will find is the Judge. The Chief- Justice is the senior most Judge; so the Chief-Justice is subject to the Leadership Code and investigation by the Ombudsman Commission.

FACT: Section 179 of the Constitution of Papua New Guinea provides for the removal of the Chief-Justice.

179. REMOVAL FROM OFFICE OF CHIEF JUSTICE.

(1) If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may–

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

(2) If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may, by notice in writing to the Chief Justice, remove him from office.

(3) The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Services Commission.

FACT: National Executive Council can appoint a Tribunal to investigate the Chief Justice.

FACT: Upon Tribunal’s recommendations, the Governor-General can sack the Chief-Justice.

…Now that’s all very good but check this out…

FACT: SECTION 179 OF THE CONSTITUTION IS NOT A STANDALONE PROVISION. IT MUST BE READ WITH SECTION 27 and 28 OF THE CONSTITUTION CONCERNING THE LEADERSHIP CODE

27. RESPONSIBILITIES OF OFFICE.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not–

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

Ms. Twivey’s concern of no man being above the Law was fully appreciated by our founding fathers when they drafted the Constitution of PNG. So let’s look at Section 28 which Section 27 (4) refers to.

28. FURTHER PROVISIONS.

(1) For the purposes of this Division, an Organic Law–

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law…

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that–

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

So where’s the Organic Law? The Organic Law being referred to is the Organic Law on the Duties and Responsibilities of Leadership, (the OLDRL).

The OLDRL at section 27 provides for Tribunals… now this is the interesting bit:

27. TRIBUNALS.

(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion–

(a) to the Public Prosecutor; or
(b) to the appropriate tribunal referred to in Subsection (7).

…

 (7) For the purposes of this section–

“the appropriate authority” means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;
“the appropriate tribunal” means–

(a)   in the case of alleged misconduct in office by the Chief Justice–the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution

Read everything again if you’re confused. (If you think you’re confused, imagine the pain I went through trying to understand this and explain it in layman’s terms below).

So in the silence of the Courts and the Ombudsman Commission, let me make a statement of what I think Section 179 of the Constitution is…

Section 179 of the Constitution is a Leadership Code provision in the sense that it is related to the functions of the Ombudsman Commission.

What happens is that pursuant to s 27 of the Constitution, the Ombudsman Commission has the power to investigate the Chief-Justice or any Judge. When the Ombudsman Commission is satisfied that the Chief-Justice has a case to answer, it refers the matter plus it’s Opinion to the “appropriate tribunal”

The appropriate Tribunal to try the Chief-Justice by virtue of s 27 (7) of the OLDRL is the one that the Governor-General appoints acting on the advice of the National Executive Council.

The National Executive Council has no say on whether the Chief Justice has a case to answer. This is the Ombudsman Commission’s job. When the Ombudsman Commission is satisfied that the Chief-Justice has a case to answer, it whispers in the NEC’s ear and the NEC selects a Tribunal. The NEC then whispers in the Governor-General’s ear, and the Governor-General appoints the Tribunal.

The NEC is the appointing authority. That is all.

See it this way: We have a game. The Ombudsman Commission is the tournament Facilitator. The Ombudsman Commission decides whether the game needs a referee. If it thinks the game needs a referee, it notifies the NEC, which is the Board of Directors. The NEC picks the referee. Then the NEC instructs the Head of State (Governor-General) to write a letter of appointment to the referee. The Governor-General is like the Executive Officer, who only acts on the advice of the Board.

The Board (NEC) is instructed by the Constitution and the By-Laws to only appoint a referee when the Tournament Facilitator (The Ombudsman Commission) sees necessary.

If the NEC is allowed to appoint a Tribunal (remember that the Governor-General is just a rubber stamp) to remove the Head of the Judiciary, then is this not a breach of the Separation of Powers doctrine?

And yet Twivey has the tenacity to say: “The separation of powers doctrine means that power needs to be split between 3 arms of government so that power is not concentrated in just a few people. Likewise the separation of powers is also dependant on checks and balances on the powers being exercised by the other arms of government.”

Honest to God, this is the kind of bullshit “consultant” drabble that makes me cry and gnash my teeth as a young Papua New Guinean.

The truth is the NEC can only appoint a Tribunal pursuant to s 179 of the Constitution when the Ombudsman Commission makes a recommendation of such, pursuant to s 27 of the OLDRL and sections 27 and 28 of the Constitution. To this date the Ombudsman Commission hasn’t even investigated the Chief Justice. And that is FACT.

Now, knowing this much, return to Twivey’s statement below and think it through deeply:

“In November 2011 and again in February 2012, the National Executive Council exercised its constitutional powers and advised the Governor General to appoint a Tribunal to investigate allegations against the Chief Justice to ascertain whether they constituted grounds for his removal and also advised that the Chief Justice should be suspended pending the determination of the tribunal. Both times, the Governor General DETERMINED TO APPOINT A TRIBUNAL AND TO

SUSPEND the Chief Justice. These decisions were made according to the Constitution and the processes provided. The Chief Justice ignored these decisions and refused to step down. These decisions were made according to the Constitution and the processes provided.”

FACT: I smell Bullshit.

END OF PART TWO  - EPISODE 1

NOU VADA

Nou blogs over at EDEBAMONA Blog 

Note from Nou: (This is not a legal opinion and I am not a lawyer... Yu laikim Legal Opinion, yu go buyim wanpla Lawyer. This is an academic paper open to rebuttal where a rebuttal may be warranted.)