Power, position and pragmatism – the judiciary vs the executive in PNG

By PNG Echo

Cast your minds back to 2011/2012 – a significant time in the annals of Papua New Guinea’s (PNG) political history

It was a time when a defiant executive government squared up to a rampant judiciary in a struggle for supremacy that, arguably, was ultimately won by the executive government (who retained power)

However, during the struggle, the judiciary (embodied by the Chief Justice, Sir Salamo Injia) never retreated and many a lesson about the effective wielding of power was learnt by the government players, especially in that which concerns the power, actual and assumed, of the Chief Justice (CJ)

Many would argue that this history is reconciled, forgiven and forgotten but two contemporary coinciding events are likely to bring it into sharp relief.

They are the recent decision of the Leadership Tribunal to recommend the former Deputy Prime Minister, Belden Namah, be dismissed from his parliamentary office over his storming of the Supreme Court when he attempted to arrest the CJ, Sir Salamo Injia, all those years ago, together with the fact that Sir Salamo’s ten-year appointment as CJ is up this year.

The power of the CJ

It is of no surprise that the position of CJ is one of great power in any jurisdiction where the rule of law is supreme. But this is especially so in PNG where this particular CJ is probably feared as much, if not more, than he is respected by his cohorts –  (see chapter on CJ)

But is he more powerful than the Prime Minister?

The reasonable answer would be that their powers are different and do not overlap – as enshrined in the 18^th Century philosophe Montesquieu’s treatise ‘The Separation of Powers’. (Although Montesquieu argued for three completely separate arms of government – whereas in PNG as in many nations, the Executive and Legislature overlap but the Judiciary is always independent.)

In reality, the 2011/2012 political impasse in PNG tested the guiding principles of that separation.

In that time, the law was used and abused as the government used the courts to try to nullify the CJ’s influence – a CJ whom they knew to be hostile to their co-option of government.

It was for reasons of this perceived legal hostility that the executive government tried desperately to have the CJ removed from office, both by using events happening at the time as well as digging up past criminal charges that had nothing to do with the political impasse and were clearly politically motivated. When that didn’t work, the parliament even attempted to control the courts by new legislation: ‘The Judicial Conduct Act’.

But the CJ was having none of it and each thrust had its counter thrust. In the struggle, the CJ proved that he was prepared to act beyond his designated powers to retain his supremacy and many contempt of court charges were both ordered and threatened by the Chief Justice to all those who opposed him.

I seem to remember lawyer Tiffany Twivey being threatened with contempt of court charges when she objected to the remaining Supreme Court three-judge bench (after a walk out of the Deputy CJ, Gibbs Salika and senior Judge Bernard Sakora) handing down a decision in the case of whether the O’Neill/Namah government was legitimate. Sir Salamo led the handing down of the court’s decision against her objection and against the law. He found that the O’Neill/Namah government was not legitimate.

What’s more, when the government slapped the Chief Justice with charges, albeit politically motivated ones (I believe there were variously charges of sedition and attempting to pervert the course of justice among others – at various times) he was not above sitting on his own case and staying it – even signing the order himself.

It puts me in mind of the movie “Crocodile Dundee” when the criminal lout held a knife to Dundee’s throat and Dundee countered by bringing out a knife twice as big.
“That’s not a knife,” he said “This is a knife,” to the applause of all present. Crocodile Dundee is alive and well in PNG in the guise of the CJ.  A context where might is so often right.

Yet, as far as motivation is concerned, in the eyes of the law, motivation doesn’t matter and did not excuse the CJ’s behaviour. This legal tenet was amply demonstrated by the celebrated Julian Moti case.

While the charges against Moti were blatantly politically motivated, the Queensland Supreme Court Judge, Debra Mullins, while hearing his case, stated that as long as the charges were sound, motivation didn’t matter. And even though Moti eventually won his case in a higher court (The High Court of Australia) – the guiding principle that earned him the permanent stay of prosecution was not ‘why’ ‘(motivation for the laid charges) but ‘how’ – ie the illegal way he’d been brought before the courts. See my book ‘Redeeming Moti.’

Stalemate

Try as the government might, during the impasse the CJ was not going anywhere. Even the CJ’s blatant conflicts of interest held no concern, not for him, anyway – nor did they, to my recollection, concern other members of the judiciary – who were strangely silent.

On the other hand, neither did the O’Neill/Namah give one inch and O’Neill (without Namah) has held onto political power as the CJ has also hung on to his power base. Stalemate!

However,the difference is: in 2017, O’Neill renewed his mandate to govern (legitimately) but the fate of the CJ is now in the balance and rests in the hands of his one-time nemesis – Peter O’Neill.

Who’s sorry now?

…well, Namah is.

Considering the flouting of democracy, the doctrine of the separation of powers and the rule of law, Namah is the only embodiment of that callous disregard that will likely pay the price.

Some time ago, a consent order was signed that exchanged the dropping of contempt charges against then government members for the nullification of an NEC suspension of the Chief Justice and his fellow Justice Kirriwom.

The same commentor proffered that the CJ had traded criminal charges to preserve his own job. It was certainly a triumph of pragmatism over principle.

As for Namah, he was always destined to be the fall guy.

I mean, who goes storming into the Supreme Court when it is in session and attempts to arrest the CJ of the land while he is presiding? Not the Prime Minister, Peter O’Neill, that’s for sure. During the historic attempted arresting of the nation’s CJ he was outside the country. Convenient?

Even for O’Neill, this act would have been a step too far – one he would not take, although I’m sure he was happy to let Namah risk the consequences. And like the Idi Amin-esque buffoon that Namah has come to epitomise, he ‘rushed in where angels feared to tread.’

It was unnecessary and counterproductive.

Sir Salamo had breached a Supreme Court Act and should have answered for his actions and perhaps he would have if Namah had not made Sir Salamo look more like the victim than the villain.

For it would be reaonably expected that Salika and Sakora JJ, who walked out on this Supreme Court case, would have happily given evidence against the CJ in this case – they are two judges known to be antipathetic towards the CJ – and he to them.

This is all why, the co-incidence of Namah’s Leadership Tribunal decision and the end of the CJ’s term is an interesting one.

For while the case has reminded everyone that you don’t mess with the CJ, most would also be aware that it is the National Executive Council (NEC) that appoints the CJ and that O’Neill dominates the NEC as PM.  So, if Sir Salamo Injia wants to be reappointed …well…?

In true Melaneisian style… 

…it seems all is forgiven and forgotten between the CJ and the PM who have been seen enjoying sporting fixtures together.

What’s more, the political pragmatism of the PM is well-known and demonstrated by the embracing of Sam Basil and his Pangu Party, even though the accusations against the PM by this Member were particularly savage, prolonged and targeted during the lead up to the 2017 elections.

I even heard tell that the Prime Minister tried to entice the prodigal son, Belden Namah, home before last year’s elections. But Namah seems to still be smarting from the ignominy of being O’Neill’s cuckold (“I protected you” [and now look what you’ve done to me]) and would not be seduced anew.

Yet, the Prime Minster’s pragmatism is usually self-serving and while he seems, on the surface, to forgive, I doubt that he ever forgets and I’d wager his forgiveness only lasts as long as the forgiven prove useful.

So it would seem that Sir Salamo needs to keep on the good side of the Prime Minister if he is to have his term renewed – that must stick in his craw, it would mine.

But the PM needs to beware, because once he is recommissioned, Sir Salamo may well, once again, become a serious thorn in the PMs side that cannot be removed.  Precedents need to be taken into account.

Where does that leave Namah?

Is he another thorn in the side of the PM that the CJ was happy to help excise, or is he the CJs demonstration of the extent of his power? We’ll better be able to ascertain that when the announcement is made of whether PNG gets a new CJ or Sir Salamo’s term is renewed.  Not long to wait now.