Fellow Citizens and Residents of Papua New Guinea.
|Prime Minister Peter O'Neill|
I am pleased and honoured to talk to you again about two current issues that have provoked heated debate in our nation in recent days.
The latest issue is Parliament’s move to defer the upcoming National General Elections by six months.
Also, over the past one week, the nation has been gripped in a debate over the wisdom of Parliament enacting the Judicial Conduct Act 2012.
Both are issues that affect the institutions and processes of democracy in our country.
Let me discuss the election deferral issue first.
I have stated several times in the past few weeks that I want this year’s elections held on time set by the Electoral Commission.
Let me hereby reiterate that I stand by my commitment to holding early elections consistent with provisions of the National Constitution.
If the Chief Electoral Commissioner advises Cabinet and myself that he is ready to run the elections as scheduled, that’s fine. Just bring it on.
But if the Chief Electoral Commissioner advises Cabinet and I that he needs more preparation time of one month or two months to get common rolls completed, to get election materials procurement in place and to ensure election security arrangements are completed satisfactorily, then the Executive has no choice but to grant him such extension of time.
I believe that Parliament may have been advised wrongly to defer the elections by six months and my Executive is moving to correct that misunderstanding.
Parliament was not fully briefed on the status of the preparations of the elections by the Chief Electoral Commissioner.
The Electoral Commissioner’s brief to me dated April 2 did not recommend deferral of elections.
It is my conviction that all effort must be made to assure security and integrity of the elections.
The Minister assisting the Prime Minister had not received clearance from the NEC to make a statement in Parliament for the deferral of elections.
I called for a special Cabinet meeting on Monday to review the report of the Electoral Commission and the Chief Electoral Commissioner has been summoned to attend that meeting.
I met with the Speaker Jeffrey Nape and Deputy Prime Minister Belden Namah on Good Friday to discuss these concerns.
I can understand why Parliament moved to defer the elections by six months after MPs became dissatisfied with how unprepared the Electoral Commission was to conduct the elections in three weeks time.
There was outcry from Highlands MPs at the government caucus meeting on Wednesday morning when it was learnt that the voter rolls for all the 41 Highlands electorates had still to be processed.
These preliminary rolls were promised to be ready by the Electoral Commission for quality check at the end of March but it has failed to do so.
Many MPs from other electorates in Momase, New Guinea Islands and Southern region expressed similar dissatisfaction with their respective electoral common rolls.
Monday’s NEC meeting will review the Electoral Commission’s election preparedness report with a view to reporting to Parliament when it resumes on Tuesday.
I admit that the Electoral Commission and the Chief Electoral Commissioner sent an election preparedness update report dated April 2 to me.
I further admit that the Minister Assisting the Prime Minister got the report and duly briefed Members of Parliament at the Government caucus meeting on Wednesday which drew considerable outcry from MPs.
Members of Parliament were outraged and protested at the Electoral Commission’s lack of preparedness of preliminary common rolls and delayed input of names in common rolls.
I was away from that particular caucus meeting to attend to other pressing matters of State.
My Deputy Prime Minister Honourable Belden Namah and other leaders of our coalition Government took charge of the meeting and thereafter determined the way forward by moving to defer the election by six months.
Let me reiterate that the report from the Electoral Commission did not recommend deferral of the election.
I have directed the National Executive Council to meet tomorrow (that is Monday) to review the Electoral Commission report and Parliament’s decision.
The NEC did not view this report initially and therefore it had not prepared appropriate advice for the Legislature.
The NEC will do so on Monday and then advise the Speaker of the best way forward in dealing with the shortcomings of the Electoral Commission.
As head of the current Executive I want the elections held on time on a date set by the Chief Electoral Commission and that date must not seriously infringe provisions of the Constitution and the Organic Law on the Calling of National Elections.
Having said the foregoing let me now turn to the Judicial Conduct law.
Many people have accused our Government of interfering with the independence of the judiciary and meddling with the Constitution.
Further to our numerous explanations, I make this further statement on the actions of our Government, the context in which the Constitution was applied and the Judicial Conduct Bill was passed.
The framers of our Constitution have embedded in our Constitution, the principles of separation of powers to be the cornerstone of our democracy.
Through our Constitution we adopted a tripartite system of governance where the powers of government are distributed among three major branches, namely, the Legislature headed by the Speaker, the Executive headed by the Prime Minister and the Judiciary headed by the Chief Justice.
In principle, the respective powers and functions of the three arms shall be kept separate from each other. (s 99 of Constitution).
The power, authority and jurisdiction of the People of this great nation are vested in those three arms.
The relationship between the three arms of government is separated in principle and is not even regulated.
The performance of their respective powers and functions are non-justiciable, meaning it can never be brought to the Court if there is a breach.
Nevertheless, the performance of their functions is structured in such a way that they provide checks and balances on each other. In doing so, it keeps the democracy alive.
The independence of the judiciary is further entrenched by s 157 of Constitution in that nobody outside of the National Judicial System including the Minister for Justice has the power to give directions to any court except Parliament through Legislation.
Parliament can direct the judiciary by passing laws.
On the same token, whilst Parliament or the Executive arm of Government is sitting to deliberate on a matter before it, the Court should not readily interfere with its proceedings.
If the Courts readily make orders, it is not a way of providing check and balance but encroaching into the affairs of the other arm of government.
Again, the question of whether judiciary is interfering is non-justiciable and so the judiciary should exercise restraint in keeping with the respect for the principle of separation of powers.
The Judges, are not exercising a power they inherited by birth, nor is it a power they attained by personal effort.
The judicial power they have is the judicial authority of the people vested in them through the Constitution.
Therefore in interpreting the law, they must always be responsible and give paramount consideration to the dispensation of justice. The same constitution further demands that "justice should not only be done, but should manifestly and undoubtedly be seen to be done".
Tensions between the arms of power do arise as an indication of a healthy and well-oiled, working democratic government.
However, those tensions are healthy when created without trespassing into the province of another arm of government.
As much as the Judiciary wants the Legislature and the Executive Government to respect its independence, the Judiciary must also give the same respect to these two distinct arms of government.
I acknowledge that Governments in the past have not taken decisive actions to make good decisions and lead the country properly.
As a consequence, politicians who make up the Legislature and the Executive Government were branded “corrupt” and so not many people respected and accepted the decisions of these two arms of Government.
Therefore aggrieved people have always run to Court and the Court became the bastion of hope. That does not mean that Parliament’s supremacy and legitimacy as a legislature and the Executive Government’s authority to govern are not in existence.
I do not blame the people of Papua New Guinea for holding our judiciary with high esteem than the other two arms of Government.
However, what is alarming is that the judiciary was exalted to such an extent where the judiciary overruns most of the Legislative and Executive decisions from the judicial bench.
The Court in certain cases usurps the powers of the Parliament and Executive Government. Some judges see themselves as power unto themselves.
A most absurd example of such a decision was seen in the recent Supreme Court Decision in the East Sepik Provincial Governments Supreme Court Reference where the Supreme Court (by majority) usurped the powers of Parliament in appointing a Prime Minister which had caused political impasse that lasted for months.
This is not providing check and balance. Rather, this is judicial intrusion!
The judiciary, in the guise of interpreting the Constitution had acted beyond its powers.
Our Government has a responsibility to detect such an intrusion and move swiftly to deal with them.
We have suspended the Chief Justice and Mr Justice Nicholas Kirriwom in accordance with the Judicial Conduct Act 2012 – an enabling law made by Parliament under Section 157 of the Constitution.
Our Government cannot sit back and allow judges to use the courts to protect their personal interests.
Our Government cannot remind blind when the Chief Justice and other judges take out permanent stay orders to effectively prevent other law enforcement agencies from arresting and charging them for breaches of the law.
I know that touching such a well-entrenched and highly esteemed institution such as the Judiciary does raise eye brows.
However, I encourage all citizens to see the new law with some objectivity.
We as a responsible Government are not afraid to venture into such uncharted territories.
Our Government has to ensure that our constitutional and other institutions of good governance of the nation are protected from tyranny.
The Judicial Conduct Act 2012 was initiated in the spirit of ensuring the our laws, as democratic as they are, must have an element of growth and modernity.
Existing laws must be allowed to grow, expand and be modernised to stay in tune with changing economic, political and social circumstances domestically and in the world at large.
Laws are passed to correct correctable situations. Laws are also enacted to regulate human conduct. If the society is presented with untenable human conduct that existing laws cannot make good then it is the responsibility of any responsible Legislature to enact a law to correct the prevailing correctable situation.
One may ask about what were the correctable situations that triggered the necessity for the Judicial Conduct law to be created.
· We have recently experienced a Chief Justice who refused to disqualify himself when accused of perceived and actual bias when protecting his participation in a five-judge panel adjudicating the Supreme Court reference by East Sepik Provincial Government against our government.
In this highly politicised court case the judicial panel on which the Chief Justice was a member issued an order that usurped the powers of Parliament in restoring a deposed former Prime Minister back to office.
This created an unprecedented political impasse unseen in Papua New Guinea ever before.
This showed lack of responsibility and sensitivity to the prevailing political mood of the day then and it showed proof that the judiciary under his watch as Chief Justice had gone too far and participated in the politics of the day.
The Chief Justice even went to the extent of issuing orders against his own suspension. This has never been heard of in any other country except PNG!!
· Then we have had Justice Nicholas Kirriwom who authored a memo to all the judges, encouraging them to wage a war against the Executive Government.
Our Government did not wage any war against the judiciary. The judiciary is too big for an individual to manipulate. This is very dangerous!!
I encourage all citizens to understand the issues of separation of powers between our three democratic arms of government.
We must not all an unfettered absolute judicial power to corrupt absolutely.
Regardless of whether judges are actually biased, the Judicial Conduct law requires judges to recuse themselves from cases where there may be a perception that they are biased.
This is based on the premise that "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.
I acknowledge the concerns of the public including those raised by University students.
I appreciate that there were no wider community consultations before the Act was passed.
However, our people need to understand that the Legislature is powered by the people through their elected representatives.
The Legislature’s primary role is to make good laws for our people and our nation.
Our people must understand the context in which laws are made and for what purpose.
Let me say this:
Parliament has the authority to make laws. Apart from Constitutional laws, Acts of Parliament can be passed in a single day. Parliament had passed laws in a single day in the past.
Parliament can make laws to provide check and balance on the actions and conduct of judges as allowed by our Constitution.
The Constitution specifically allows Parliament to make laws that will affect the judiciary.
The central issue that this law seeks to address is the protection of the integrity of the judiciary and to avoid judicial bias.
The law on judicial bias is not a new law.
All Parliament did was to codify the existing law.
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. Nothing Changes.
Parliament is empowered through this Act to deal with a worst case scenario where a judge flagrantly refuses to disqualify himself and insists to hear a case despite the issues of bias raised against him or her.
Parliament is given the power to initiate the appointment of a tribunal but does not determine the substantive issues.
Whether or not a judge’s conduct had brought disrepute to the judiciary, is a question that an independent tribunal is empowered to deliberate, not Parliament.
The tribunal members will be comprised of judges only, as appointed by the Head of State.
The judiciary and the judges do not have unfettered power. They are not 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.
I encourage all our citizens and critics to look at the law in totality, taking into account the context and purposes of its enactment. Let us not assume the facts and effects of the law and mislead our people. I urge you all to look at this law objectively in light of the circumstances outlined hereinabove.
I do not consider this law as draconian and so I have no regrets that we have taken the initiative to pass this legislation.
It is our Government’s hope that with further consultations over time, the citizens and residents of our nation will appreciate that this law will assist in providing check and balance to the judiciary.
HONOURABLE PETER O’NEILL, CMG MP