Martyn Namorong reports on the latest developments:
Following yesterdays mass public protest against the O’Namah Regime:
1) Speaker Nape has refused to entertain Prime Minister’s instructions for Parliament to consider rescinding motion to defer elections. But Parliament’s motion is not binding on Andrew Trawen who as Electoral Commissioner is a constitutional officer not subject to directions from Parliament in the regard of complying with the motion
2) The Supreme Court per Mogish, Kariko and Manuhu JJ found that prima facie, there was an appearance of unconstitutionality and illegality in the Judicial Conduct Act and stayed the act’s enforceability pending final outcome of the Supreme Court Reference by the Morobe Provincial Gavman
3) Consequently, suspension of Kirriwom J and Injia CJ pursuant to s 5 of the Judicial Conduct Act were stayed by the Supreme Court per Mogish, Kariko and Manuhu JJ pending a final pronouncement of the constitutionality of the Judicial Conduct Act. This effectively means Kirriwom J and Injia CJ can preside over the case of the Prime Minister’s legitimacy tomorrow.
In the Lawyers’ Offices
4) Parliament may now try to counter the Supreme Court’s move. But how? All eyes on legal advisors
And what a glorious day it was as the Sun beat through the cloudless sky and scorched all life in Port Moresby. The streets were largely deserted and the few who ventured out carried on rather nervously. Port Moresby’s notorious traffic jams were nowhere to be seen and for once the city looked like the most livable place on earth.
Angau Drive in Boroko with its lush vegetation had a slow stream of pedestrians, much to the annoyance of street vendors who prop up stalls near the footpath. The roundabout near SP Brewery did not have its usual scrum of vehicles puffing out toxic fumes.
Along Kennedy Drive where mobile giant Digicel is headquartered in Papua New Guinea, a mother escorts her child back from Gordon’s Secondary School. They’re both immersed in conversations about the Constitutionality of the Judicial Conduct Act and Parliament decision to postpone elections (sic).
The Gordons main bus stop and market area is unusually slow as a small crowd mingles around waiting for buses or buying mobile phone credits.
The largest city in the South Pacific, Port Moresby, had been shut down for Occupy Waigani, a protest organized to demand that Parliament rescind its decision to interfere with the Judiciary and to postpone the elections.
At around 10 am, students from the University of Papua New Guinea are all gathered on campus for their march to Sir John Guise stadium. As news filters that the University students were moving, a vocal crowd of predominantly teenage primary school boys leaves the stadium and heads towards the Government Offices at Waigani. The boys are stopped by police opposite Morauta Haus – the office complex that houses the Prime Ministers Department.
Back at the stadium a live band performs to a growing crowd of about 5000 people. Everyone is waiting for the arrival of the University Students.
An hour later the Students enter Independence Drive. The students were advise to March to the stadium instead of taking public transport. It is a lesson learnt from Tahir Square that once a small group with great legitimacy takes the streets, the sympathetic public joins the queue. And it worked as the students marched to Waigani with a 5000 strong crowd.
Sir John Guise stadium was now packed with about 10 000 people. Many Port Moresby residents had never seen such a crowd. This crowd serves as an ominous warning to Port Moresby based politicians as the clock ticks is way down to Election Time. One protestor described the crowd as the largest she had seen since the 1991 South Pacific Games held at Sir John Guise stadium.
The rhetoric began on stage and the crowd cheered “RAUSIM! RAUSIM! RAUSIM!” [Rescind! Rescind! Rescind! In Tok Pisin] as various speakers called on the O’Namah Regime to rescind its recent decisions. Unionists Michael Malabag and John Paska address the crowd first. Legal expert Dr John Nongorr then articulates the unconstitutionality of these changes in Tok Pisin. No doubt Dr Nongorr had done an excellent job in Tok Pisin.
As Dr Nongorr speaks, the O’Namah Regimes’ convoy enters the stadium. Opposition Leader Dame Carol Kidu also makes her way in. As the O’Namah entourage came to a standstill at the stadium, they were booed by the crowds.
The politicians make their way up the stadium and there is minor chaos on stage as seats are being sought for them. Dr Nongorr then continues his rhetoric and then Presents a synopsis of the Petition. Prime Minister O’Neil is presented the petition by Unionist Michael Malabag while the UPNG Student President Emmanuel Isaac presents another to Electoral Commissioner Andrew Trawen. The Trawen Petition calls on the Electoral Commissioner to go ahead with the elections as scheduled.
Here are the outcomes of Occupy Waigani at Sir John Guise stadium: [as summarized by ActNow]
- The issue of writs is officially postponed until May 18th (Mr Trawen said so!)
- Today’s Parliament sitting is postponed to 10am tomorrow
- The Judicial Act will be repealed as long as Injia and Kirriwom step down (Mr O’Neil said so)
- The issue of today’s march will blow over and people will forget (Mr Namah said so)
- Mr O’Neil wound down his window and waved royally to all of us gathered at the Sir John Guise Stadium when leaving.
- Mr O’Neil stated clearly that ONLY the Electoral Commissioner has the authority to delay or not the 2012 National Elections therefore he can’t give assurance that elections will run according to schedule
- Mr O’Neil stated CLEARLY that he will repeal the Judicial Act if Chief Justice Sir Salamo Injia and Justice Nicholas Kirriwom step down.
Papua New Guinea’s opposition leader, Dame Carol Kidu, says the government’s use of a controversial new law to suspend two senior judges sets a dangerous precedent.
The government has passed a motion directing the Governor-General to appoint a tribunal to investigate allegations of bias against two senior judges. It says chief justice Sir Salamo Injia and Justice Nicholas Kirriwom have breached its new Judicial Conduct Act.
The controversial law gives parliament the power to refer judges it deems to be biased effectively suspending them while investigations are carried out.
Dame Carol says the law gives the government too much power over the judiciary.
“I’m angry because the prime minister lied as he has often lied in the past,” she said.
“Future politicians will think, ‘this bill is quite good. We can control the judiciary by doing this if we don’t like them’. Now, what road are we on?”
Yesterday the leader of government business, Moses Maladina, told parliament Sir Salamo had sat on, and made orders in, a case involving himself while Justice Kirriwom had criticised the government in a recently leaked internal memo.
“It is essential that there is a process by which misbehaviour by the judiciary may be assessed and determine whether there should be any accountability as a result of the misbehaviour and the Judicial Conduct Act assists in this regard,” he told parliament.
The two judges are part of a five-man Supreme Court bench that had just begun hearing a major constitutional case. It stems from the ongoing leadership conflict between prime minister Peter O’Neill and the man he replaced last year, Sir Michael Somare.
The court has been asked dozens of constitutional questions, the answers to which will effectively determine the legitimacy of Mr O’Neill’s government. The fate of the case is now unclear.
There was a public outcry when the Judicial Conduct Act was hurried through parliament last month.
Critics said it gave one arm of government, the executive, too much power over another arm, the judiciary.
The government backtracked last week, indicating it would not implement the law for nine months while the public was consulted. But it has now backtracked on its backtrack.
Several thousand students from the University of PNG took to the streets of Port Moresby last month to protest against the Judicial Conduct Act.
The president of the Student Representative Council, Emmanuel Isaac, says it is likely they will march again.
“Parliament has simply defied the voice of the people,” he said.
“If they can defy our voice I think the silent majority who don’t even have access to media and don’t understand what is going on, their voice has also been defied as well.”
Heavily armed police showed uncharacteristic restraint by allowing the students to protest despite initially refusing them permission, but that may not be the case next time.
By Todagia Kelola
WHILE the full Supreme Court bench was hearing the Chief Justice’s disqualification application on Tuesday, lawyers for [The Grand Thief - editor] Michael Somare and Sir Arnold Amet went to another Supreme Court to restrain Parliament and others from implementing the Judicial Conduct Act of 2012 on the basis that if the Chief Justice refuses to disqualify himself, Parliament will use this law to suspend him.
Counsel for the two men Kerenga Kua made a brief appearance before Justice Derek Hartshorne sitting as a one man bench and tried to seek the interim injunction exparte but Justice Hartshorn refused and ordered that the other parties be served and appear before him this morning.
The urgent application according to Mr Kerenga is to ensure that the new act which was certified last Friday by the Speaker, is not used or implemented so that the hearing of the Supreme Court Reference is not disturbed in any way by suspending members of the current bench.
Justice Hartshorn in refusing to hear the application exparte ordered that the application is adjourned to 9am this morning. Applicants to serve the respondents Speaker, Jeffery Nape, Attorney General Dr Allan Marat, Prime Minister Peter O’Neill and Members of the NEC by personal service on their lawyers who are appearing in SCR 1 and 2 of 2012.
The O’Neill government this morning used the controversial Judicial Conduct Act to refer Papua New Guinea’s Chief Justice Sir Salamo Injia to the Head of State to set up a tribunal to investigate alleged judicial misconduct.
This is despite parliament-elected Prime Minister Peter O’Neill assuring all Papua New Guineans in a nationwide televised address recently that his government will delay implementing the law for nine months in order to carry out public awareness.
PNG National and Supreme Court justice Nicholas Kirriwom has also been referred to the Head of State in an unprecedented development in the country’s short history.
“It is therefore my important but difficult task to move a motion pursuant to section 5 of the Judicial Conduct Act 2012 for parliament to refer His Honor the Chief Justice Sir Salamo Injia to a tribunal of his peers for an inquiry as to whether the terms of the Judicial Conduct Act 2012 have been breached. I also move a motion pursuant to section 5 of the Judicial Conduct Act 2012 for parliament to refer His Honor Judge Kirriwom to a tribunal of his peers for an inquiry as to whether the terms of the Judicial Conduct 2012 have been breached,” the O’Neill government’s leader for government business, Moses Maladina, told parliament this morning.
Under PNG laws the public prosecutor is empowered to refer PNG politicians and top bureaucrats under the country’s Leadership Code if it finds the State has a prima facie case, however the direct involvement of the Governor General – via a motion of parliament as stipulated under this controversial law – now enables this symbolic office to play a direct role in the nation’s affairs.
PNG Opposition Leader, Dame Carol Kidu, condemned the referral this morning and warned that PNG faces an uncertain future with parliament now having the ultimate authority over the judiciary, an institution which many Papua New Guineans regard as the country’s last bastion of hope.
Parliamentarians led by sidelined Supreme Court-reinstated PM Sir Michael Somare are studying the implications of these developments in parliament and will release a statement shortly.
The referral will infuriate student protesters, trade unions and civil society led by the Community Coalition Against Corruption (CCAC) who have threatened to go on a nationwide protest and stop-work if the O’Neill government did not revoke the law in this session of parliament.
Owen Blackwell, AAP
Papua New Guinea’s parliament has voted to effectively suspend two of the nation’s top judges after Chief Justice Sir Salamo Injia refused to remove himself from overseeing hearings into the government’s legitimacy.
The move comes less than a week after Prime Minister Peter O’Neill indicated he would seek wider consultation before implementing the controversial enabling laws that allow the suspensions.
The motion to suspend Sir Salamo and Justice Nicholas Kirriwom was carried on voices at the conclusion of Wednesday’s parliamentary session.
In court earlier, Sir Salamo declined to recuse himself from the constitutional hearings.
Government lawyers had argued he would indirectly benefit from finding against the government because they had repeatedly tried to suspend him.
The Supreme Court veteran was arrested last month for allegedly trying to pervert the course of a police investigation into his handling of court finances.
Soon after his arrest, the court issued a permanent stay of proceedings, calling the police investigation an abuse of process.
Government lawyers earlier this week applied for Justice Kirriwom to stand aside after a memo bearing his signature and calling on judges to band together to fight government attacks against the judiciary was leaked online.
Justice Korriwom ruled against an application for him to stand down on Tuesday.
Papua New Guinea’s Chief Justice has refused to disqualify himself from a case which will determine the government’s legitimacy.
The Supreme Court’s full bench is hearing two constitutional references which will effectively determine the legitimacy of Peter O’Neill’s government.
Through his lawyer, the Attorney General sought to have the Chief Justice Sir Salamo Injia to be disqualified because of an apprehension of violence.
It was argued that Sir Salamo could be biased because of the government’s two failed attempts to have him suspended from office.
But Sir Salamo said his eighteen years of experience on the bench meant he was well placed to make judgements without fear or favour and he rejected the application.
He also said that the allegations of official misconduct used by the government in its attempts to suspend him were unfounded, scandalous, and contemptuous.
Eoin Blackwell, AAP
One of Papua New Guinea’s top judges has refused to remove himself from constitutional hearings into the legitimacy of the government, amid allegations of bias.
Justice Nicholas Kerriwom has this morning told the court in Port Moresby he saw no reason to step down after a memo bearing his signature and calling on judges to band together against attacks from the government was leaked online.
“Since my appointment as a judge (15 years ago) my name has not been so politicised,” he said.“I find no good reason to recuse myself and I will not recuse myself from this reference unless my brother judges … rule I must recuse.”
Government lawyers argued that it didn’t matter if the document was written by Justice Kerriwom, only that an apprehension of bias existed because the document bore his signature and had been seen by members of the public.
Earlier, Justice Kerriwom neither accepted nor denied authorship of the memo but said its leaking and use of his name had amounted to an invasion of privacy.
“For me I would rather walk away from this case now and have a good night’s sleep and rest than subject me and my family to the undue stresses that we have have been subjected to since November 2011,” he said, referring to government attempts to suspend the chief justice.
“I am neither denying or admitting authorship of that publication when it is not before the court.”
Deputy Prime Minister Belden Namah – who did join the motion for Justice Kerriwom to step down – had taken out a full-page ad in local newspapers last month calling on Justice Kerriwom and Chief Justice Sir Salamo Injia to step down.
Sir Salamo was arrested last month on charges of trying to pervert the course of a police investigation into his handling of court funds.
The court quickly issued a permanent stay on proceedings.
Government lawyers were expected to move to have Sir Salamo disqualified from overseeing the case but, after Justice Kerriwom’s ruling, they instead asked for a two-hour adjournment for them to receive instructions from their clients.
Hearings into whether the O’Neill government’s decisions since it controversially took office on August 2 were legal or not were supposed to begin on Monday, but council for Attorney General Dr Allan Marat yesterday applied to have justice Kerriwom removed.
As a parent of adult children and on behalf of the silent majority of PNG I take this occasion to thank each an every person who have spoken their mind on this very important cause for democracy [the Judicial Conduct law] on which the Constitution of PNG plays a vital role.
I declare without any shadow of doubt that the Constitution of the Independent State of Papua New Guinea is the SUPREME LAW which had created all the institutions of government in which it demarcate the separation of power between the three arms of the government; the legislator, executive and judiciary, which is the foundation of democracy.
You are not isolated in this pursuit rather you have the backing of the 6 and half million people of this nation.
I strongly advice that you have an objective to achieve and that is to complete your studies with flying colour and one day do not make the same mistake in ambushing and abusing the Constitution in any way that is detriment to democracy rule.
The people have heard your views and stand are indeed in total support towards your initiative and stand on the threat to democratic rule.
I would advice that the students should be encouraged to organise public forums at the respective institutions and invite senior citizens to speak at your selected venues. This arrangement would encourage positive debating to take place as well educational to all our citizens.
I make a commitment to attend any public forum at the University of Technology in Lae or even in the University of PNG campus or University of Goroka.
I unconditional uphold the Constitution of PNG as the SUPREME LAW and the pillar of democracy.
By Gorethy Kenneth
Speaker Jeffrey Nape has certified the Judicial Conduct Act 2012. It is now law.
This is despite assurances by the Government that the law would be subjected to a wider consultation throughout Papua New Guinea by the instituted Constitutional Law Reform Commission (CLRC) before a final outcome is expected.
Mr Nape signed the law into effect on March 30, 2012. It was also certified by the Clerk of Parliament Don Pandan on the same day.
Last night, Prime Minister Peter O’Neill also confirmed that the law was certified by the Speaker and the Clerk of Parliament last Friday. However, he said that the Speaker and the Clerk “did what they did to certify the law and that was the process for the legislature”.
But he added that as the head of the Executive Government, he allowed for the implementation of the Judicial Conduct Bill to be deferred and the Bill to be referred to the CLRC for awareness and wider consultation for nine months under the chairmanship of Mr Gabriel Kapris.
A spokesman for the PM last night also defended the PM saying that Mr O’Neill made no two ways about the law.
“He undertook to defer the implementation of the Act. He did not mislead anyone nor did he lie to the nation,” the spokesman said last night.
“Yes, the Speaker certified the Bill but that was the process he had to make as a legislature. It was conditional.”
The Post-Courier believes that the Bill would have been repealed on condition and or only if the Chief Justice Sir Salamo Injia stepped aside on the cases involving the Government.
This is the law that has caused the nation to react negatively to it – the University of Papua new Guinea students boycotting classes and petitioning the Government to repeal the Act. The PNG Chamber of Commerce had also called for it to be repealed as they claimed it would infringe on the major business activities of the country. The Civil Society and the NGOs, including Transparency International had also called for the same.
The Government later announced the set up of the CLRC, to be chaired by Mr Kapris and allocating K1 million to carry out investigations and wider consultation throughout the country for nine months.