Sunday, November 16, 2008


No gain in shooting or silencing messenger

TO shoot or to silence the messenger is more and more becoming a copy-cat past-time for governments in the Pacific region. It is a development all supporters of democracy, media freedom, freedom of expression and human rights must strike out against vigorously. It’s a worrying trend especially in Fiji under the interim government of military strongman Frank Bainimarama, in Samoa and is voiced ominously in Papua New Guinea from time to time by “big wigs” in the three arms of government. We must never remotely suggest to shoot or to silence the messenger. No gain will be made for any nation going that way. Such is tantamount to ripping out heart and soul – the very fabric of democracy as system of government of the people, for the people by the people. It was not surprising that this scribe and Frank Senge Kolma, a journalist colleague writing for a daily newspaper also as a columnist have been singled out and warned to walk the “straight and narrow” journalistic path and “take heed that (we) are treading on dangerous grounds” – a reference made by a senior judge on Thursday in relation to respective commentaries we have written in the past week for our respective newspapers about less than convivial “mouthings” coming from the hallowed halls of the judges. There is no bad blood there nor is there loss of respect all round. No doubt there is misunderstanding. But the implied threat against freedom expression and freedom of the press stands out like a sore thumb. At stake is denial of media and journalistic freedom of expression and publication with responsibility of public information, critique, analysis and commentary on prevailing and emerging issues of national interest and concern. Often times this scribe writes about freedom, liberty and human rights, and usually in terms of threats to or the reduction of these precious commodities by officialdom that is usually perceived to suffering or huffing and puffing under the weight of an acute case of insecurity and inferiority complex. We in PNG do not have to go the way of repressive and suppressive regimes elsewhere within our own Pacific region or further afield. Officialdom does not have to be suggesting situations similar to restrictions that have all but eroded freedom of media and freedom of expression by journalists and the public of Fiji. We are nation with a great deal of potential to strengthen our institutions of democracy – a pillar of which is free press, freedom of expression, freedom of thought and freedom to be free. Papua New Guinea’s National Constitution enshrines and bestows freedoms, liberties, rights and social obligations upon every man, woman and child of PNG in the Preamble and in Constitution Sections 32 inclusively through to Section 63. The letter, intent and spirit of the safe-guards provided in the National Constitution are awesome. They’re massive and are a must read for all citizens of PNG.  Lest we all get hoodwinked by those in the know who can manipulate the laws to serve self-interest. The relevant constitutionally-guaranteed freedom that this scribe and Frank Senge Kolma are being warned and threatened – by implication -- not to exercise freely is Section 46 – Freedom of Expression. Constitutional Section 46 stipulates that:

1.      Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by law -

(a)    that imposes reasonable restrictions on public office-holders; or

(b)   that imposes restrictions on non-citizens; or

(c)    that complies with general qualifications on qualified rights

2.      Freedom of expression and publication includes:

(a)    freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b)   freedom of the press and other mass communications media.

This freedoms, liberties and rights are as good as how they can be freely exercised. When they are interfered with, obstructed or usurped through a public official’s insecurity or inferior complexes, the chances are that the values that we all take for granted in democratic systems of government come unstuck big time. Having created the premise upon which horns might lock in relation to the latest warning by a senior judge to me and my colleague let me present my case without fear or favour. Some events have overtaken the discussions in publications that have stirred some degree of judicial ire. That’s to be expected. People in high places must always know and appreciate that when they start wagging their tongues or utter a sound they have a willing audience who want to hear them but who are also critical or analytical of what may be said. Journalists – as news hounds – keep the public informed, educated and aware through their print and electronic media writings, commentaries and broadcasts. The role-play of investigative and provocative journalistic commentators, columnists and analysts is a little different from that of the normal news beat journalist or reporter. The commentary column is where the journalist writes analytically and investigatively and with a great deal of care and responsibility. That’s where one calls a spade and spade if evidence justifies the label. For instance, when there is smoke obviously a fire burns. Likewise when there is vomit there is bound to be smell. For both situations, a newshound worth his or her salt does not get the whiff of smell and go back to sleep. An inquisitive newshound – whether from Uritai village on the banks of the Lakekamu River in Gulf Province or from the mountain tops of Jimi in the Jiwaka area of Western Highlands will trace the smell to its origin and investigate it for its news value. That’s basically what the Laumaea and Kolma commentaries were about. The facts stack up. For instance, three judges sitting as a Supreme Court made a ruling that affected another judge presiding over the same case in the National Court. The judge in the National Court felt seriously aggrieved that he had not been fore-warned. He made a statement – more or less – as a personal explanation and also to abundantly register his displeasure to his colleagues. That’s fine. But then there was that other reactionary statement a day later from another judge lending support to the aggrieved judge.  Hello, stand back. The smell is getting stronger. To this newshound the situation became a vomit case. Any dog could smell that. Vomit is contents of the stomach expelled through the mouth. Among many animals dogs are usually drawn to human vomit. They explore the contents of the vomit and consume some or all of it. Watch them sometimes and you will agree. But where is this analogy taking us? The analogy is in relation recent judicial utterances by Justices Bernard Sakora and Mark Sevua -- two of the nation’s senior judges of the National and Supreme Courts. They vented displeasure in no uncertain terms in the media about a certain decision of the Supreme Court. The facts are that on Monday November 3, a three-judge Supreme Court comprising then acting but now confirmed Chief Justice Sir Salamo Injia, Justices Nicholas Kirriwom and Sao Gabi removed a stay order on the Commission of Inquiry into the management of public monies by the Department of Finance. The stay order was issued by Justice Sakora who was presiding over a judicial review sought by former senior public servants Zachery Gelu, Isaac Lupari and Tau Liu to disband the commission of inquiry. The Supreme Court also ruled that the judicial review be taken away from Justice Sakora and be given to another judge. On Tuesday, November 4, Justice Sakora – in compliance with judicial protocols -- issued a seven-page judicial statement in court wherein he slammed the Supreme Court decision as “hijacking” a case that was before him and giving it to another judge without informing him. He felt “insulted, abused and denigrated.” It is objectionable and offensive to be treated this way, apart from, of course, the disrespect and nonsense that was perpetrated on the laws and legal procedures that we are bound by,” Justice Sakora said. “In my considered opinion, there has been a blatant interference with my judiciary functions, in the process questioning my judicial integrity and independence.”
He also said the entire proceedings were “hijacked” from him without proper legal processes being followed to remove the matter that was currently before him.
“In my considered opinion, no law or procedure, or combination of both, would support and justify the intervention and interference of the Supreme Court in the way that it did -- (On Monday November 3).
“And the way it did was to ride roughshod over the constitutional powers, duties and functions given to this court by section 155(3) (a).
“In the process, the Supreme Court interfered with my judicial independence, a valuable and cherished doctrine of democracy and constitutionalism.”
He said the Supreme Court decision was “both objectionable and obscene as contrary to the principles under which our independence Constitution was based.
“It is intolerable by any democratic standards.”
He said the law and proper process to disqualify him from hearing this case were not followed.
“Duly appointed authorities exercising people’s powers under the Constitution, be they legislative, executive or judiciary, who ought to know and appreciate the laws and procedures of this country – the principles that the Founders of the Constitution unequivocally adopted to help, guide and govern us – do not appear to have any respect for those principles.
“Some of us who are committed to doing things right by all manner of people, true and faithful to our judicial oath and declaration, not to mention the Lawyers Oath we all took on admission to practice law in this country, are now constantly frustrated.
“Those of us who are duty-bound to enforce the laws of the country, are being constantly frustrated in this very serious task, by those who wish to evade and avoid the requirements of the laws and procedures of the country, by those who wish to cut corners, as it were.”
He added: “There is an assault on the democratic principles adopted on Independence (of PNG). As a necessary adjunct to this is the popular tendency these days to condone and reward mediocrity, irregularity, unconstitutionality, and illegality.
“The unusual become the usual (way of doing things), the unacceptable become acceptable, and the irregular becomes regular.”
The judge said the people’s judicial power was not a “popularity contest” as in the case with the Miss PNG contest. On Wednesday November 5, Justice Mark Sevua -- in support of Justice Sakora -- made a statement denouncing the actions of the Supreme Court.
“I support the comments made by Justice Sakora and endorse his concerns,” Justice Sevua said. The newspaper continued to quote Justice Sevua as having said that such an action of the Supreme Court was indeed “insulting” to a judge whom he described as one of PNG’s leading and most experienced judges on the bench. According to the newspaper Justice Sevua also said it was not the first time such a decision was made in recent times when interlocutory matters were before National Court judges and while they were still pending before those judges (as individual National Court judge hearings), the matters were taken to a higher court and then “hijacked” and given to be heard by another judge.
“This is a very dangerous trend and must be stopped by all means,” Judge Sevua is quoted as having said. He is further quoted as having said the rich and well-to-do could run to the Supreme Court and have matters before judges “hijacked”, but the “little people” could not because they could not pay and that the public should know that such “hijacking” of cases amounted to interference in a judge’s judicial duties.
“It is a blatant interference of a National Court Justice executing his judicial functions,” Justice Sevua is quoted as having said. Wisdom, freedom, restraint and responsibility come with a great deal of self-sacrifice and maturity is how this scribe would sum up this storm in a tea-cup. Here are a couple of quotes as food for thought: "More and more, if you're not in the digital conversation about your community, you're not in a conversation that matters" --   Alberto Ibarg├╝en, President of The Knight Foundation. And former US president and founding father John Adams once said: "You will never know how much it cost the present Generation, to preserve your Freedom! I hope you will make a good use of it. If you do not, I shall repent in Heaven, that I ever took half the pains to preserve it."

·        Share your views with the writer at or SMS (675) 684 5168


1 comment:

  1. Letter to Editor: The National Tue 18th Nov, 2008

    I did not lobby for chief justice’s post

    TWO prominent and senior writers of the print media recently have insinuated, implied and accused me and my colleague Justice Bernard Sakora of lobbying for the post of chief justice.
    On page 14 of the Sunday Chronicle, Susuve Laumaea in his commentary, “Judicial ‘bad vibes’ not good for PNG” (Nov 9), accused us of open lobbying for appointment as chief justice.
    He said: “Judicial squabbles among brother judges … and purported lobbying for appointment as chief justice …”
    This is not the first time that Mr Laumaea has written on judiciary issues.
    He has suddenly become an expert on judiciary matters and I question his qualification.
    I do not stop him from writing what he likes, but I do not accept as professional journalism, the fact that he fails to obtain or seek views from people he is attacking in his articles.
    This is not only very poor journalism but unprofessional journalism and the lowest form of public writing that a man of his standing can write.
    It is simply “gutter journalism”.
    I ask Mr Laumaea to prove his allegation of my lobbying for the post of chief justice and if he has no evidence to substantiate his wild allegation, then I suggest that he shuts his loud mouth.
    In The National, Frank Kolma, in his focus article on page 32 entitled “Allegation by Sakora serious” (Thursday, Nov 13), accused Justice Sakora and I of making statements which could influence the appointment of the chief justice.
    He said: “On yet another level, since the position of the chief justice is open presently, reasonable people can infer that this kind of public comments have some bearing on that aspect too.”
    Since he has used the test of reasonable man, I say that reasonable people will also infer that he is accusing us of lobbying for the position of chief justice and this is far from the truth.
    Where is your evidence, Mr Kolma?
    I have not lobbied for the position of chief justice and I categorically deny outright any imputation that I have lobbied or campaigned for the position of chief justice.
    I have not been seen in Parliament to gather support for appointment as chief justice.
    I have not used prominent lawyers and prominent Manus people to lobby for my appointment as chief justice.
    I know for a fact that the other two senior judges, Justices (Gibbs) Salika and Sakora, who had been named in the newspapers, have not done so either.
    I deny all these allegations and any inference to be drawn that I have been lobbying for the post of chief justice.
    Those of us who were named as possible candidates for the chief justice position by the Post-Courier recently were never told and our views were not sought by the journalist who printed those stories and put our names in the newspaper.
    All the speculations that were going on in the print media were perpetrated by journalists including Mr Laumaea and Mr Kolma, not me or Justices Salika and Sakora.
    We have never authorised any journalist to use our names in their stories.
    One begins to wonder whether these scribes were taught the art of balanced reporting.
    I am not going to sit down and read anymore garbage from these so-called media reporters.
    If Mr Laumaea and Mr Kolma have evidence that Justice Sakora and I have been lobbying and campaigning for appointment as chief justice, I demand that they make that public now otherwise they should shut up and stop making unfounded and unsubstantiated allegations because what they, and their newspapers, have done have bordered on defamation.
    It is a very serious allegation to make against a judge who is innocent of any of the accusations that these two journalists have made against us.
    The issues that were raised by Justice Sakora and supported by me were constitutional issues intended for the benefit of the public.
    The public who reposes their trust in the judiciary have the right to know about these constitutional issues and to be alerted to what is becoming a dangerous trend in this institution.
    After all, it has always been held, like Mr Kolma said in his article, “the high pedestal we have put in on by our public trust”.
    That is the context in which these statements were uttered.
    I reiterate and emphasise that the statements were not for the purpose of canvassing the support of the Prime Minister or Cabinet ministers to appoint one of us as chief justice.
    In relation to the many speculations mainly instigated by the print media, we have remained silent because we respect the constitutional process of appointing a chief justice.
    Those Mr Know-it-all should provide the evidence of judges seen walking the corridors of Parliament and lobbying for support and, if they do not have that, they should shut up and stop implicating us.
    Whilst everyone has the constitutional right of expression, that right does not confer upon the rumour mongers and busybodies the right to smear our names with mud by making stupid, spurious and unsubstantiated allegations.
    I can’t speak for Justice Sakora, but as far as I am concerned, I did not come here to be the chief justice and I have never aspired to be chief justice.
    I was appointed on merit 16 years ago. I did not apply for this job.
    I had intended to leave after serving my first 10-year term, however, due to the urging of my people, including lawyers and the small people on the street, I decided to seek another term and was granted that in August 2003.
    Judges have made statements in the media in the past because the traditional protectors of the judiciary have abandoned the judiciary.
    As is evident, the Attorney-General, the secretary for Justice, the president of the local bar have never been keen on fighting for judges or the judiciary and if judges, by their own judgment, feel they should express themselves publicly, so be it!
    I repeat that the recent statements that have been the subject of these cheap write-ups, were intended for the benefit of the public.
    The public has the right to know and judges have an obligation to raise serious constitutional issues that affect people’s rights.
    In any event, now that the National Executive Council has appointed a new chief justice, there should no longer be any discussion in the media on that issue and Mr Laumaea and Mr Kolma would do well to take heed that they are treading on dangerous grounds if they persist to make unsubstantiated allegations against Justice Sakora and myself.
    Whilst on the issue of public statements, let me say that serious allegations of corruption have been levelled against the judiciary in the recent past and this should be of interest to Mr Laumaea and Mr Kolma instead of wasting their time on unsubstantiated allegations.

    Justice Mark S. Sevua
    Port Moresby