Why the Judicial Conduct Act 2012 is Dangerous
When the O’Neill/Namah government passed the Judicial Conduct Bill 2012 on March 20, it immediately triggered a national outcry against the introduction of the Bill.
It started with the Leader of the Opposition, Dame Carol Kidu, one of only a few number of voices allowed to argue against the Bill in Parliament.
Since March 20, the Community Coalition Against Corruption, the PNG Trade Union Congress, the PNG Chamber of Commerce and Industry, and Transparency International PNG, have all issued statements calling for the Judicial Conduct Act 2012 to be reconsidered or repealed.
In addition, students from the University of Papua New Guinea (UPNG) marched peacefully in protest against the Bill on Friday, 23 March to Morauta Haus, where they presented a petition to the Prime Minister’s Chief of Staff. They are again organising another protest march, and the boycotting of classes today, in tandem with Unitech in Lae and other students enrolled in tertiary institutions around the country.
Even convicted criminals in PNG’s maximum security jail Bomana in Port Moresby, have threatened to break out en masse if the Act is not repealed.
Public pressure against the passing of the Judicial Conduct Act 2012 has been significant and is growing – so much so that Peter O’Neill addressed the nation over radio, his first such address to the country since gaining power in August 2011, explaining to the people why his government introduced the Bill.
O’Neill has now delayed the introduction of the Act and has instead referred it on to the Constitution and Law Reform Commission for it to be appropriately scrutinized, something he should have done long before even considering entertaining the bill in parliament.
There have been some solid analysis done regarding the Judicial Conduct Act 2012, notably that of the Student Representative Council of UPNG, who are manifesting the physical opposition to the Bill through their demonstrations.
New Thoughts: Why the Bill is Dangerous
In addition to the points made by these groups listed above, I would like to add my own thoughts to the public discourse as to why the Judicial Conduct Act 2012 is dangerous. I identify three key reasons why:
Firstly, let me make the point that the basic ideas contained within the proposed Judicial Conduct Act 2012 do, to a very restricted degree, have merit for democratic nations around the world which employ or utilize the idea of separation of powers as the balancing mechanism for effective government, to at least consider and to review.
The definition and function of separation of powers within practicing democracies the world over varies, and over time, do change ever so subtly in order to accommodate the relevant evolving society – culturally, socially, politically and even spiritually.
What Peter O’Neill is attempting to do, and what he has alluded to in his address to the nation, is that the Bill is an attempt to introduce reform into the judicial system of PNG. In this case, it is inaccurate to say that it is an attempt to reform the judicial sector, like for example, a government policy to increase the number of prison cells to deal with overcrowding.
More accurately, this attempt at “reform” (the word ‘reform’ refers to something being ‘corrected’ or ‘rectified’), is a constitutional change to the actual positioning of the Judiciary in relation to the Executive, and simultaneously, the awarding of powers to the Executive which provides the perception, and indeed the possibility and opportunity, for the Executive to manage or interfere with the affairs of the Judiciary.
This is the first reason why the Bill is dangerous.
The idea of amending or tweaking the concept of separation of powers as outlined in a constitution or a nation’s set of founding documents, is not a new idea – nor is it a sinister or illegal idea if it is genuinely mooted, discussed, consulted upon and reviewed, prior to it being implemented.
What must be severely questioned here in the passing of the Judicial Conduct Act are two key points, which are the remaining two reasons why this Bill is dangerous: 1) The purpose or premise of introducing such legislation; and 2) The process followed to pass the bill into law.
In regards to the O’Namah Government (a combination of O’Neill and Namah), great scrutiny must be placed on the reason(s) why the Judicial Conduct Act was introduced, and the process followed to do so. In both cases, and bearing in mind the gravity of the first reason why this Bill is dangerous, it is very clear that the reasons why and the process followed, do not stand up to the levels of acceptability deemed appropriate by any neutral and reasonable observer.
To illustrate the first key point and second reason why this Bill is dangerous, Attorney General Dr Allan Marat is on record stating that the Judicial Conduct Law 2012 was a necessary enactment to get around the Judiciary’s moves to stop government attempts to suspend Chief Justice Sir Salamo Injia.
This is legislation drafted, introduced and passed by Parliament for all the wrong reasons – and quite frankly, is not only immature and abhorrent, but is an abuse of process and goes against the spirit of PNG’s Constitution.
To illustrate the second key point, and the third reason why this Bill is dangerous, the Judicial Conduct Bill 2012 passed through parliament with unparalleled urgency, with a vote of 63 – 7, consecutively voted upon three times, less than 24 hours after it was introduced, and with 39 sitting Members absent from Parliament.
It passed with no prior consultation with any organisation or body, or submission, from any party or individual not eligible to sit in Parliament.
Ironically, if the legislation, or a similar type, was mooted in more quieter times where the Judiciary and the Executive were working in unison together, then I do think that there would have been the possibility, as long as the reasons and process followed were true, fair and open, that the government would have garnered positive and genuine discussion from all parts of society as to whether or not such a tweaking of the separation of powers needed to be made.
The government may have even succeeded in getting the Judiciary to support the amendment(s), and even more appropriately, asking the Judiciary to lead it!