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.
Thank you.
HONOURABLE
PETER O’NEILL, CMG MP
Prime
Minister
