By PNG Echo.
This article is the first in a two-part series that looks at the Judiciary in Papua New Guinea. This first part will look at the newly-proposed legislation, ask some questions and highlight some concerns. The next part will look at the judiciary in general and seek to answer the question of whether the judiciary will be the saviour of PNG or merely a powerful part of the problem.
The proposed legislation to establish a Court of Appeal in Papua New Guinea and separate the National Courts from the Supreme did not pass last week.
However, that was not because of opposition to the bill.
As far as I can tell, there was only one dissenting voice, that of erstwhile government and now opposition member for Lae, Loujaya Kouza who walked out in protest. (She needn’t have bothered there was a deficit of numbers in the chamber -79 and 83 were needed for it to pass.)
In other words, opposition did not defeat the bill, apathy did – the MPs didn’t think it was important enough for them to make it into the chamber.
Indeed, when I asked a prominent PNG lawyer for comment he replied that he knew nothing of the proposed legislation.
They may just be missing something.
What’s it all about?
The Bill seeks to establish a Court of Appeal that sits above the National Court and below the Supreme. After appealing a decision to the new Court of Appeal there is a mechanism to further appeal to the Supreme Court but now, one must first ask for ‘leave’ to do so which may or may not be granted.
It’s added an extra layer to the justice process – a further avenue of appeal.
If passed, it will be similar to the Australian system where the Supreme Court is the court of appeal, in the first instance, then the High Court (which one must also obtain ‘leave’ to petition). However, Australia is over three times the size of Papua New Guinea and one is forced to ponder the necessity of such a system in Papua New Guinea or its usefulness in dispensing justice.
Moreover, what this will mean for the judiciary is that National Court judges will not automatically be judges of the Supreme Court as is the case currently. Judges will either reside in the National Court, the Court of Appeals or the Supreme Court.
It is expected that the appointments will be according to seniority with the most experienced judges being attached to the Supreme Court, the more junior judges in the National Court and the medium-term judges on the Court of Appeal.
With the practice of sending newly-appointed National/Supreme Court judges to the provinces; for them then to be denied their week in ‘the big smoke’ to sit on the Supreme Court, may be a sticking point with some when considering appointment and may deter some talented candidates.
What’s more, if this is indeed the intended arrangement, then the most experienced judges will no longer be conducting trials.
The other relevant questions are: who will head each division?
I am assuming the Chief Justice will preside over the Supreme Court and he is appointed (for 10 years) by the National Executive Council (NEC), but who will appoint the leader of the National Court and the Court of Appeal?
Will it also be the NEC or will it be the Justice and Legal Services Commission (JLSC) – a judicial agency dominated by the Chief Justice? What are the ramifications of each course of action? Whose interests will be served?
The scurrilous blogsite, PNG Blogs in an article written by Dianne Rut (likely a pseudonym) has accused the Prime Minister of using the legislation to protect himself. She writes:
…Peter O’Neill had been having very difficult time with judges who dealt with his cases were also in the Supreme Court [sic].
The suggestion is that this legislation will remove these judges from the courts of appeal (including the Supreme Court) and leave only experienced and easily manipulated judges (?) there.
Not only is that suggestion highly defamatory, it is also completely wrong.
Those with even a cursory knowledge of cordial relations between the Prime Minister and the Chief Justice will know that, probably stemming from the political impasse of 2011, there is no love lost between the two – and there’s no doubt the Chief Justice will head the Supreme Court.
Indeed, it has been suggested to me by a high-ranking former member of PNGs legal fraternity that:
…there is [maybe] a hope, which I think is forlorn, that if they [the government] give the CJ what he wants (including his K400m+ court complex) then he will be nice to them.
The Hon. Loujaya Kouza has also issued a press statement accusing the Prime Minister of base political motives. She writes:
I did not take part in the vote is simply because the timing was wrong [sic]. The intention was not only wrong but the initiator was ill-motivated as well.
Kouza called the Prime Minister “…an intelligent, brilliant architect of evil,” – but then she would, wouldn’t she? She sits (uncomfortably) on the opposition benches.
What Kouza did not do was look beyond the Prime Minister.
Kouza’s need to establish his sinister motives has blinded her to what may be the real agenda of this legislation given that these reforms were first suggested by the Chief Justice over 5 years ago.
Part two of this series will look at the Judiciary – the good, the bad and the ugly – Saint or Sinner?