Over the past 36 years since gaining independence, Papua New Guinea’s judiciary has faced numerous challenges in the country’s constitutional development. Time and again, such challenges have been met, and the judiciary has not ignored its responsibility to administer fair and unbiased justice.
The latest and perhaps most fundamental challenge to the power of the country’s courts stems directly from the recent ongoing political turmoil between Peter O’Neill and Michael Somare over who is legally the country’s prime minister. The ongoing crises escalated to the point where a small number of soldiers who supported Somare staged a mutiny, but were quickly suppressed.
The emergence of these political and constitutional complications from the Supreme Court decision on December 12, 2011, which restored Sir Michael Somare to the position of prime minister, and the election of Peter O’Neill to the office at or around the same time triggered a stand-off between the legislature and the judiciary. At one point, the de facto O’Neill government went to the extent of threatening to flex its greater numerical strength in order to have Parliament invoke its oversight powers, following the interlocutory Supreme Court decision that negated the effects of the Judicial Conduct Act 2012. The introduction of this legislation effectively armed the PNG government with the power to suspend judges it deemed to be biased.
The motivation for the Judicial Conduct Act 2012 is somewhat suspect, as it retroactively nullifies the December 12, 2011 Supreme Court decision. This legislation directly affected two members of the Supreme Court who had initially refused to disqualify themselves and then proceeded to deliver the majority decision that ruled against the de facto O’Neill government. This also set in motion a series of actions taken by the de facto O’Neill government against the judiciary, which generated a massive outcry from relevant stakeholders, ranging from ordinary citizens to tertiary students and trade unions, as well as members of the private sector.
Only after much public consultation did the de facto O’Neill government perform an about-face by resolving to defer the implementation of the controversial judicial conduct legislation until and unless the eighth Parliament determined otherwise.
Despite the Supreme Court expressly recognising all the bona fide decisions and actions made and implemented by the de facto O’Neill government, after having declared Somare as the legitimate prime minister until the return of the writs for the 2012 national elections, the May 21, 2012 decision was not accepted by the de facto O’Neill government.
Instead, the de facto government labelled the ruling tainted, pointing to the decision by a member of the bench to disqualify himself and by another to abstain from giving judgment during the course of the final ruling. Both judges were reacting to apparent bias displayed in an internal court email from February 2012, circulated by a member in the majority of the bench in which he referred to the de facto O’Neill government as an “illegal regime”. Following that, the Parliament was re-called by the de facto O’Neill government to sit on May 22, 2012 for consideration of that Supreme Court decision.
This ongoing dispute between Somare and O’Neill clearly exemplifies the significance of the judiciary and the role it plays in modern PNG society as custodian of the country’s constitution. In this regard, the fundamental character of the judiciary as an independent and impartial pillar of government has been, and will continue to be, an inspiration to many persons within and abroad PNG.
This has never been more important, particularly with the country’s economy now experiencing sustained exponential growth, where the level of certainty and confidence in the overall administration of justice is crucial to the welfare and prosperity of the country, its citizens and its businesses.
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