Source: Student Representative Council, University of Papua New Guinea.
We, the students of the University of Papua New Guinea have met today in light of the actions of our National Parliament in regard to the passing of the Judicial Conduct Bill, which virtually gives Parliament the power to suspend Honourable Justices of the National and Supreme Courts.
While we honour the pledge we made to support the O’Neill/Namah Government back in the Prime Minister’s September 2011 visit to THE Waigani Campus, WE IN THE STRONGEST OF TERMS DENOUNCE THE PASSING OF THE JUDICIAL CONDUCT BILL 2012. As educated Papua New Guineans we have discussed the Bill and its implications at length in forums sanctioned by the UPNG SRC. We have had our Law Students, Politics students, Public Policy Students and students from all schools of thought read into the Bill and offer their learned views on what this law will effectively mean for the future of Governance in Papua New Guinea. And we have, in One Voice concluded that the Judicial Conduct Bill is dangerous and abusive of established Constitutional and legislative processes and Offices already in operation and force. In this brief paper we will discuss the Bill’s substantive provisions and our concerns regarding to each.
A Bill for AN ACT Entitled Judicial Conduct Bill 2012.
The Bill claims in its preamble as “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…” This statement, while it sounds noble, is very problematic. Here we have an Act of Parliament that is seeking to regulate the Judiciary. As we will discuss later, it is an Act that allows one arm of Government to interfere directly into the affairs of another arm of Government, and one that is traditionally kept outside of the whims of Parliamentary politics. As we note, the Act is retroactive and retrospective in nature as stated at the concluding paragraph of the Preamble, “MADE by the National Parliament to be deemed to have come into operation on 1 November, 2011.”
1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.
This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C. (Qualified Rights) of the Constitution, namely the right to privacy conferred by Section 49 of the Constitution is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.
Section 1 is a standard form in all pieces of legislation that will act to restrict constitutionally guaranteed rights of Citizens. Section 1 basically states that the right to privacy may be breached in the enforcement of the Judicial Conduct Bill. The Right of Privacy is set out pursuant to s 49 of the Constitution of Papua New Guinea.
49. RIGHT TO PRIVACY.
Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).
While it is perfectly normal for an Act of Parliament to restrict rights and Freedoms, this deprivation of the Right to Privacy runs in connexion with s 5 of the Judicial Conduct Bill, and as we discuss s 5, you will see that the connection is a very dangerous one indeed.
Section 2 of the Judicial Conduct Bill is a glossary of words used in the Act. Section 3 prescribes what the Judiciary has observed since time immemorial:
2. JUDGES TO UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY.
(1) A Judge shall uphold the integrity and independence of the judiciary.
(2) A Judge shall –(a) participate in establishing, maintaining, and enforcing high standards of conduct; and (b) personally observe those standards so that the integrity and independence of the Judiciary shall be preserved.
Section 4 is again a very noble statement of law but there is an issue of ambiguity that arises. What is impropriety according to the Act? Impropriety is not defined under Section 2. This is important. Who decides which actions of a Judge qualify as having impropriety or the appearance of impropriety? Is it the Parliament? If so, how can we be sure that this Act will not be abused to evade justice on actions of Parliament that are unconstitutional? And how can we be sure that this Act will not be abused by Parliamentarians and members of Cabinet trying to evade Criminal Prosecution or civil action?
3. JUDGES TO AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGES ACTIVITIES.
A Judge shall-
- respect and comply with the law; and
- avoid impropriety and the appearance of impropriety in all of the Judge’s activities; and
- act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
- Section 5 is the most controversial provision in the Judicial Conduct Bill. S 5(1) is a duplication of*
4.JUDGE TO PERFORM DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY.
(1) A Judge shall disqualify himself in a proceeding or shall not influence a proceeding in which the Judge’s impartiality might reasonably be questioned, including but not limited to instances where –
(a) the Judge is related to a party, attorney, or spouse of either party (usually) within the third degree of relationship; or
(b) the Judge is a party; or
(c) the Judge is a material witness; or
(d )the Judge has previously acted in the case in question as a Lawyer for a party, or participated in some other capacity; or
(e) the Judge prepared any legal instrument whose validity or construction is at issue; and
(f) the Appellate Judge previously handled case as a trial Judge; or
(g) the Judge has a personal, financial or any interest in the outcome; or
(h) the Judge determines he or she cannot act impartially; or
(i) the Judge has made statements orally or in writing which indicate he has pre-determined any or all of the issues of fact or of law in a proceeding.
Subsection 2 is the most controversial provision in the Judicial Conduct Bill. The provision empowers Parliament to remove a Judge from active duty by way of a Parliamentary motion. The actual provision states that Parliament “refers” the Judge to the Head of State – the Governor-General. It is a fact of law that the Governor is a rubber stamp – the Governor-General’s role is purely ceremonial. However as per the current amendments the Governor General has been vested the powers to appoint a tribunal to prosecute Judges for allege misconduct.
In reality, Section 5 Subsection 2 gives Parliament the Power to suspend a Judge. This is dangerous. This means that there can never be a guarantee that the conduct of the Judiciary will be free of interference from Parliament, which in PNG politics, is almost always dominated by the whims of the National Executive.
(2) If it appears to Parliament that a Judge has failed to disqualify himself pursuant to Subsection (1) or has influenced a proceeding contrary to Subsection (1), Parliament by way of a motion may refer the Judge concerned to the Head of State to appoint a Tribunal to investigate the breach of Subsection (1) and provide a report to Parliament or may refer the matter to another authority for an appropriate course of action.
Section 178 and 179 of the Constitution provides specifically for the removal of the Chief Justice. The new legislative enactment uses the wording “Judges” which must therefore come under Section 180 of the Constitution which provides for the removal of Judges .
Section 180 empowers the Judicial and Legal Services Commission as that institution with the powers to refer any Judges to any tribunal. By the operation of Section 5(2) of the new act, the parliament has in itself put itself in the place of the Legal Services Commission as that institution which refers Judges to a tribunal.
Section 180 is already conclusive and exhaustive of the institutions and processes in which any Judge is referred to any tribunal or removed from his/her position. It is a constitutional provision any act of parliament cannot empower the parliament itself to perform any function which is already stated in the Constitution.
The new law is already in effect and now Parliament possesses that right under such a legislation which undermines what is provided for under the Constitution. Should it be said that the separation of powers as provided under Section 99(2) and (3) is no longer in application? In principle Parliament has the power to intimidate, manipulate and control the judiciary through the operation of Section 5(2) of the Judicial Conduct Bill.
(3) In the event that the Parliament has referred to Head of State a breach of Subsection (1), the Head of State shall on receipt of the notification from the Speaker of the referral from Parliament, appoint a tribunal consisting of a Chairman and two members, each of whom must be –
(a) a Judge or former Judge of the Supreme or of the National Court; or
(b) a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea.
The above provision is a duplicate of Section 181(2) of the Constitution. The provisions in the new bill that make reference to the removal of Judges are already provided for under Subdivision H of the Constitution.
The Judges actions at all times should appear impartial, thus their conduct and behaviour should be of a high standard according to the law and if they do not conform to these provisions, the other provisions will come in to give the parliament power to step in and refer them.
(4) The Tribunal shall make due enquiry into any matter referred to it without regard to legal formalities or the rules of evidence and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.
(5) If the Tribunal reports to Parliament that Subsection (1) has been breached, then Parliament shall take whatever action necessary including a referral to the National Executive Council or the Judicial and Legal Services Commission for their consideration of the commencement of a process to remove the Judge in accordance with Section 197, 180 and 182 of the Constitution.
Section 5 of the Judicial Conduct Bill provides that the parliament appoints the tribunal. However in the Constitution, the tribunal is to report to the NEC but the new act requires the tribunal to report to the Parliament and this is contrary to the Constitution Section 157 which this act purports to implement.
Section 6 is contrary to s99 of the Constitution as it does not clearly specify how the separation of powers as provided for by s99 of the Constitution may promote transparent flow of separation of powers. It is clearly biased that only the NEC and not the Parliament or the legislative arm or the judiciary in their separate powers may admit justice especially on the judicial arm of the government meaning the NEC clearly infringes on the judicial arm of the government. It also goes beyond s178, 179 &180 of the Constitution which clearly versifies the creed of distinct separate powers in which Judges may be dealt with.
The effect of Section 5 & 6 is that both the NEC and the Parliament has the power to refer any Judge including the Chief Justice to the tribunal.
The Judicial Conduct Bill is rife with ambiguity. In reference to the definition of ‘Judge’ the Judicial Conduct Bill does not specify whether the term refers to Chief Justice also. While the Chief Justice presides over any matter, his Judgement is equal to that of any other Judge. Therefore this act can apply only when it concerns a matter that he presided over in his capacity as a Judge. This is because the title of the Chief Justice is administrative in nature. Subject to Section 4 states:
“Judges are to avoid impropriety and the appearance of impropriety in ALL of the Judges activities.”
As to the term “all” used above, it is not clear whether it refers to the Judge’s actions in the courtroom or concerning administrative matters. The administrative function of the Chief Justice is constitutionally mandated; therefore no act can contradict this mandate. Thus there is ambiguity between the act and the Constitution, however in all matters the Constitution must prevail.
(6) In the case of a Parliamentary referral of a Chief Justice, in the event that the National Executive Council has advised the Head of State to set up a Tribunal to investigate the question of the removal from Office of the Chief Justice, such reference by Parliament may be added to those proceedings or kept separate.
(7) Where Parliament has made a referral of a Judge to the Head of State pursuant to Subsection (3) such Judge shall not hear or continue to hear legal proceedings or exercise his powers as a Judge pending the provision of the report from the Tribunal to Parliament and in the case of the Chief Justice, the Deputy Chief Justice shall act as Chief Justice.
(8) Where Parliament has made a referral of a Judge to the Head of State pursuant to subsection (3) any Order or Judgment in that proceeding made by that Judge shall be stayed pending the provision of the report from the Tribunal to Parliament.
In conclusion, it is our collective view as People who invoked our Constitution’s Preamble everyday in Government schools around the nation as enshrined in our National Pledge. We believe in the spirit of the Constitution of Papua New Guinea. We believe in Integral Human Development and Papua New Guinean Ways, and the Rule of Law. We believe this Act of Parliament is wrong. It is wrong!
It is laws like these that paint a bad picture of our country, and as the Ambassadors of this great nation, we the Students of the University of Papua New Guinea are absolutely against the Judicial Conduct Bill 2012.
We stand together on this night, from the Highlands and the mountains and the islands and valleys and coasts, we are the future of Papua New Guinea and tonight we stand together as One People, One Nation, One Country.
THE GOVERNMENT OF PETER O’NEILL, A FELLOW ALUMNI OF THE UNIVERSITY OF PAPUA NEW GUINEA MUST GET RID OF THIS ACT.
Compiled by the Bill Committee in front of the UPNG Student Body on this night – 9:10 pm 22.03.12