Compiled by the Bill Committee in front of the UPNG Student Body on this night – 9:10 pm 22.03.12 [edited version]
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.
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.”
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:
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?
Section 5 is the most controversial provision in the Judicial Conduct Bill. S 5(1) is a duplication of*
5. 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.