BY SUSAN MERRELL

THE INDEPENDENCE of the judiciary is a paradigm that underpins the rule of law in democratic states.

Another well-accepted paradigm comes from one of the most famous historical judicial rulings: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”…..

When Australian interests are legitimately and legally challenged in Pacific jurisdictions, ‘biting the hand that feeds you’ would be a common phenomenon in the judiciaries considering the massive amounts of Australian aid funding they receive.

Some question whether the judiciaries are prepared to do this, thus compromising their independence.

Peter Pena, a lawyer from PNG, is sceptical. He asked this question in a recently published article: “Has it ever occurred to anyone that this generous aid we receive (in PNG and the rest of the Pacific) could be a fishbone stuck in the judicial oesophagus of our courts, an unnecessary, artificial and improper fettering or corruption of judicial discretion?”

Pena had taken umbrage with the PNG Ombudsman’s report (amongst other things). He pointed out that the Australian government funnels millions of kina into both Transparency International and Ombudsman Commission every year.

“Australia has created so much financial rapport and institutional loyalty within these organisations,” said Pena, “that in desperate times like this, it can be called in.” He is of the belief that this is precisely what happened.

The Chief Ombudsman of PNG is currently Chronox Manek. Before becoming Chief Ombudsman, Manek was the recipient of a generous AusAID scholarship that funded his further education in Australia. Prior to this, he was the DPP that prosecuted the Moti case in PNG.

Subsequently, in the Ombudsman’s Report, he found that Moti should not even have been in that court as his arrest was unlawful. However, at the time, it did not stop him from yelling “belt the shit out of them” - them being Moti’s lawyers - on hearing that Moti was not in court that morning.

His enthusiasm for this task was equally matched by the Australian authority’s enthusiasm to have Moti extradited to Australia (to face criminal charges already heard in Vanuatu) before he could reach the Solomon Islands and take up his new role as Attorney-General in the troublesome (for Australia) Sogavare government.

The PNG Prime Minister, Sir Michael Somare, commented incredulously in the press at the time of Moti’s arrest: “Police goes and does this, who are they listening to, who is commanding them?”

PNG is a sovereign nation. A prime minister shouldn’t have to ask that question. A reasonable person might wonder whether the scholarship proffered to Manek was a reward for the enthusiastic co-operation with the Australian agenda. And why wouldn’t they?.....

Australian authorities operating in the Pacific forget that the rule of law applies universally and can’t legitimately be applied arbitrarily and/or brushed aside for expediency—and certainly, not used to effect or promote a political agenda.

Stephen Lawrence, a Canberra-based lawyer, is particularly damning of how arbitrarily the rule of law has been used amongst the visiting contingent in the Solomon Islands. He confided to the press that while being a Solomon Islands’ public defender, he felt that RAMSI’s criminal justice response became “an attempt to achieve a form of political cleansing,” and had little to do with the rule of law.

Which brings us full circle—the judiciary must be independent to establish a rule of law. Clearly, in the Pacific, there are powerful forces interfering with that paradigm.

There must be solutions because as the PNG lawyer Pena rightly points out “judicial corruption is subtle and a very real threat to democracy in the region.”

His suggestion is that aid to this sector should cease immediately and he recommends “proper and adequate internal funding of the judiciaries as constitutionally mandated.”

Certainly, with the Pacific judiciaries so dependent on funding from Australia, the mythical ‘reasonable person’ is bound to suspect they would be heavily pregnant with Australian influence.

As for the Australian courts, there’s a need to look more closely at the problem of judicial bias and conflicts of interest questions. If a court in a small African nation can afford to be that rigorous, so must we. Then, justice may not only be done but also seen to be done.

‘Judicial corruption in the Pacific’ was first published on the Islands Business and pngblogs.com websites. You can read the complete article here.

Spotter: Peter Kranz