Monday, November 14, 2011

Lawyers, judges told to defend Constitution

Source: The National, Monday 14th November 2011

ALL lawyers, judges and magistrates must defend the Constitution, PNG Law Society president Kerenga Kua says.
He said the supreme law of the land had come under intense attack in recent times and all those who swore to uphold it, when being admitted to the bar, must now answer to the challenge.
Kua called on the Judicial and Legal Services Commission to rise to the occasion so “international governments and businesses must trust the independence and integrity of our court system if they are to do business with us”.
“They must have the assurance that laws and contracts are capable of enforcement before an impartial and independent but fearless judiciary, which does not get swayed by external undue influences,” he said.
“The issue of the warrants for the arrest of (Belden) Namah and (Dr Allan) Marat is in line with these principles.
“Namah and Marat probably have a genuine explanation for their actions but, like everyone else, they can have their say in court. It may be totally justifiable but due process will reveal that.
“The Constitutional Planning Committee, having foreseen such future abuses by powers that be, had specifically written a safety mechanism into the Constitution in section 182(3).
“This section says that where the chief justice is suspended and he was dealing with any judicial proceedings, he may continue and complete those proceedings, unless the Judicial and Legal Services Commission forbids him from doing so,” Kua said.
The JLSC consists of the minister for justice, chief justice, deputy chief justice, chief ombudsman and a member of parliament appointed by parliament.
“There is nothing to suggest that the JLSC has met and decided that the chief justice should not complete his uncompleted matters, including writing and delivering his decision on the Supreme Court reference.
“There is a constitutional assertion in favour of the chief justice completing his cases even while on suspension. Only a JLSC determination to the contrary can displace this assertion.”
He cautioned the JLSC to be careful in supporting an action “which is contemptuous of the Supreme Court”.
“The JLSC is asked to defend the integrity of the court system and all the judges and magistrates in this country.
“The chief justice, as a member of the five-man bench of the Supreme Court, should not be prevented from delivering his own judgment along with his colleague judges, even when under suspension,” Kua said last week.
“Marat (as chairman of the JLSC) is a very senior lawyer in the country and is known to the legal profession as a sincere, ho­nest and dedicated professional.
“These recent events are sending to the profession confusing signals. I urge him, as a fellow professional, to stand back and to review his position carefully.
“I would like to urge the NEC to reconvene and immediately revoke its decision to suspend the chief justice.
“It will be a demonstration of strength rather than of weakness to be honest and to admit a mistake where there is a mistake and to repair it.
“It is not too late. The sooner this is done, the better it will be for everybody and for the country.”
He said it was gratifying to see that two of the judges appointed to the tribunal appointed to investigate the chief justice had declined that commission.
“That was the correct thing to do in upholding and protecting the independence of the judiciary.
“I am hopeful that the third remaining judge will decline the appointment,” Kua said.
He said the success of Papua New Guinea “depends on there being a free and independent judiciary”.

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