There is so much conversation on Facebook on the decision of Deputy Chief Justice Kandakasi to summon Governor Alan Bird to appear before the court and show reason why he should not be held accountable for contempt of court. The governor is said to have expressed dissatisfaction on certain matter/matters before the courts. Justice Kandakasi also told Kramer to confine his role as Minister of Police to Policy matters and not indulge in police operations. The former has generated much debate.
There are many opinions, including those who argue that Alan Bird is protected by parliamentary privileges to debate and question any matter in parliament. And there are those who say this privilege does not extend to matters currently before court, therefore amounting to a contempt of court.
PNG is a land of many political and legal blunders, and exciting precedents, but very few are as memorable as the first contempt case between a MP and the courts. Manus MP Nahau Rooney was jailed for contempt of court in 1979. In 1979, when she was the Minister for Justice, she wrote a letter to the Chief Justice, and later went on to NBC, to talk about Dr Predmas’ case. The NEC had terminated Dr Predmas, a lecturer at UPNG, and wanted to deport him, but he took an injunction against the NEC decision, which the courts granted. The NEC were frustrated against the court’s decision. The Public Prosecutor took Rooney’s case as a contempt of court and raised it with the courts. The judges ruled that it was a contempt of court and jailed Nahau Rooney. Michael Somare, then Prime Minister, used his executive decision to release her from prison. All foreign judges resigned in protest, and the first national Chief Justice was appointed – Sir Buri Kidu. It is something that shouldn’t be repeated.
You can read the court case on Paclii: Rooney (No 2), Public Prosecutor v [1979] PNGLR 448
The difference between Nahau & Bird is that, apart from the facts of the case, which are different, Alan Bird has the parliamentary privilege to argue. Is that sufficient? We’ll wait and see.
But as far as power of judges go, criticizing judges on Facebook is a very bad trend. PNG is in a privileged position whereby lack of strong political party systems prevents appointments of Supreme Court judges who are aligned to certain political parties. In the US, the President gets to appoint the Supreme Court judges. And without exception since the 1930s Richard Nixon’s case, the Presidents have been appointing Supreme Court judges who belong to their party. These judges are appointed for life, subject to good behaviors. A Democrat appointee will always make decisions in line with liberals’ values, whilst a Republican judge will rule in line with conservative values. In Japan, the Liberal Democratic Party dominated Japanese politics post-WW2 until very recently. Because the executive appoints the Supreme Court judges, since WW2, the judges were appointees of the LDP, and ruled along the values of LDP. In Malaysia, for the last 40 or so years, the judiciary and the executive were the same guys. Anwar Ibrim, Opposition MP was continuously jailed over 20 or so years as the judges, who conspired with the ruling party to keep Anwar out of politics for as long as they could. Worse still, there are countries right now where the judiciary is a mere extension of the executive arm.
PNG has, despite all the criticisms, an independent judiciary. Judiciary is the only arm of government among the three, that has some integrity left in this country. The executive in the past decade has dominated parliament, diminished legislature to a mere rubber stamp, stifled debates and bulldozed legislations. The only institution to stand up against these carnage was the judiciary. The courts ruled the Manus Detention illegal and unconstitutional. That couldn’t be done in parliament because the opposition didn’t have the numbers to stop the government. We as a nation had to rely on the Supreme Court to do that for us. When the government in 2016 adjourned the parliament to avoid a vote of no confidence (next parliament sitting was scheduled to fall well within the 12 months grace period before issue of writs for the 2017 election, thereby preventing any vote of no confidence), we had to rely on the Supreme Court to rule it unconstitutional. The opposition could not stop the government from adjourning because they did not have the numbers.
If we bring the judiciary down to the same level as the legislature and executive arms, we are finished. Let the judiciary be. Even if one judge is wrong, there are others who, upon appeal, can review the decision. It has a self-correcting mechanism.
I recommend members of this page to grab a book titled “Anwar Returns” to see a real case of judges compromising.
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