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.
(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.
(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,
(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).
(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–
“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 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.)
Nou Vada is on the ball. Tiffany is a bad lawyer. She has marital problem and O'Namah Group is her comfort. Wait and we see after Supreme Court decision if Tiffany will stay and go to jail or escape from PNG and it's jail. She is a whore!
ReplyDeleteNou Vada if you are not a lawyer then dont waste your time trying to be one. Take your academic paper to the University. We have a crisis that needs to be solved and we dont need academics taking us around in circles. At least ms tt nongor has the qualificatipns to interpret the law. The only way to prove that her advice is bulshit is in the courts, a process now underway with the legal challenges. However you can not trust the court now to provide an unbiased opinion due to ongoing clash between the government and the Judiciary. Dont you see the judiciary especially the chief justice does not want to be accpuntable to anyone? Who is he? At least the politicians will account for themselves in two months time so who is scared of loosing the power and previlages? It is unheard of to sit in court to make a ruling in your own favor. This is the real bulshit nou vada.
ReplyDeleteNou Vada has got Tiffany on her heels. She is a whore with no integrity. Keep it up Nou Vada. Let those who are clean cast the first stone at you.
ReplyDelete