We all need to know the interdependence of law & democracy
31 May 2018
PHIL FITZPATRICK
TUMBY BAY - After surviving two years of probation and becoming a fully-fledged kiap and passing the prescribed courses, I was appointed a magistrate of the Local Court in Papua New Guinea.
As a local court magistrate I could hear both civil and criminal cases and fine or imprison people up to certain limits.
The principle law under which kiaps worked was the Criminal Code, which had been adopted from Queensland.
In our training great emphasis was placed on the correct interpretation of legislation. We had to get this right because all the cases we heard were scrutinised in Port Moresby and our rulings could be overturned.
When presented with difficult cases, it was sometimes hard to interpret the law and we had to decide what was the intent of the relevant section before we applied it to a particular situation.
To do this we might have to deal with precedent and be aware how courts in the past had interpreted the law. This could be difficult out in the bush where we didn’t have access to case law. No internet back then.
When I left Papua New Guinea I ended up in jobs that were also reliant upon specific legislation and, at various times, actually had a hand in drafting some of it.
This was a lot easier than administering kiap law because we had recourse to the Crown Solicitor’s opinion about interpretation.
All up it was good experience and I’ve maintained an interest in the law ever since. One of the things I learned to do was to be wary of taking at face value what people tell me. I guess it really boils down to being wary and not trusting anyone.
Quite a few of the court cases we hear about in Papua New Guinea have exercised my mind in this way, notably the current one involving Dr Albert Schram, and I try to understand the technicalities of the laws being applied.
This has led me to consult the current Papua New Guinea Criminal Code Act on several occasions.
In doing this I’ve often wondered whether the average Papua New Guinean is aware of the code and all it contains and, if not, whether an appreciation is worth teaching in schools.
In essence, the code is a very long list of all the bad behaviour people are capable of getting up to and the punishments that can be meted out by the courts if these people are caught.
This goes a long way beyond ‘common sense’, and here and there it can overreach, such as with sexual activity between consenting adults. But apart from that it’s a good guide to how to live an honest life.
Here’s an example to demonstrate what I mean:
-
MEMBER OF THE PARLIAMENT RECEIVING BRIBES.
(1) A member of the Parliament who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on any understanding that his vote, opinion, judgement, or action in the Parliament, or any Committee of the Parliament will–
(a) be influenced by it; or
(b) be given in any particular manner or in favour of any particular side of any question or matter,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.
This comes out of a very long section about bribery that covers both the people being bribed and those doing the bribing. Specific references to specialised forms of bribery also occur in the rest of the Act.
Ignorance of the law is no excuse. Any politician soliciting or accepting a bribe is breaking the law and they should know that. It appears that in practice some of them don’t. Or that they don’t care.
I know it’s asking a bit much, but if people in Papua New Guinea took the trouble to familiarise themselves with the code and the punishments involved they might actually behave a bit better.
Perhaps if the police also enforced the Act a bit more conscientiously a similar effect might be realised.
Law and its application is, after all, pivotal to democracy. Without proper adherence to the law democracy is in jeopardy.
I wonder what this says about the current state of democracy in Papua New Guinea.
Will Self, you are correct in stating that Paclii is not up to date in the sense that the texts of the original acts have in most cases not been updated in accord with later amendments.
However Paclii includes an index to the PNG laws, compiled by the PNG Dept of Justice that claims to be current as of 28 March 2018. This index contains a list of the laws and the subsequent amendments. The index lists over a dozen amendments to the Criminal Code.
The text of the amendments can be usually found in the sessional legislation or in the Revised Edition of the Consolidated Legislation. Previously I have noticed a repealed law that was still listed among the current legislation.
Posted by: Garry Roche | 31 May 2018 at 07:58 PM
Beware. Paclii is not up to date at all. And if you want to buy any of the National Court's excellent publications, you are plumb out of luck.
I had K200,000 to spend on these books. Ten emails, 15 phone calls, three letters and numerous "wantok" contacts later I could get no answer at all and no books.
Posted by: Will Self | 31 May 2018 at 03:03 PM
It occurred to me that there might be politicians in PNG who don't know that it's illegal to take bribes Paul. It also occurred to me that there may be politicians in PNG who think the reason they got elected is so they can take bribes. And my tongue is only half in my cheek.
It also occurred to me that bribery and corruption are great political weapons to use in election campaigns.
The election and defection of Sam Basil is a case in point. I'm not saying that Sam is corrupt or takes bribes but he did play the corruption card very well in the last election. We now know that's all he was doing because he then defected and joined the most corrupted government PNG has ever had. Clearly his stand against corruption in the campaign was fake.
How do you separate the Sam Basils from the genuine corruption fighters? I'd suggest the only way to do that is look at their actions against corruption prior to an election, or if they've been a member before their actions in government. Using this measure Bryan Kramer and Gary Juffa qualify but we can't be sure about the others. I can think of a few extra "maybes" but can count them on the fingers of one hand.
Posted by: Philip Fitzpatrick | 31 May 2018 at 10:31 AM
Excellent discussion point Phil. I can't imagine why you zero in on political corruption however? (Ha!)
Having available legislation is unfortunately just one facet of the operation of law. In the three pillars of government, in addition to the legislature, there must also be the proper operation of the two other arms of effective government, namely the Executive and the Judiciary.
The judiciary or the courts can only operate effectively if the Executive, in this case law enforcement and public prosecutor etc. are themselves effective and on the ball.
Any weakness in the system will weaken the entire set up.
The external factors, one of which you point out, are awareness of the law but also having the strength of conviction to lay a complaint and the necessary funds to pursue justice through the courts.
As we know, our Kiap courts may have been rough and ready but were operating within the village structures and at village levels. The did not cost either the litigants or the defenders anything more than their time and efforts.
If the Kiap got it wrong in the Local Court, an appeal to a higher authority could be made and sometimes was. This didn't cost the complainant anything more than going to the next level of authority, namely the OIC in a large station or the ADC in a Sub District and making a verbal complaint.
The problem arises when the lack of knowledge and mystic of the law is used for the purposes of implied or imposed power.
As Gary has pointed out, knowledge and education is enormously important in ensuring the whole process operates effectively and fairly. In our day, the background and cultural knowledge was often provided prior to any court case by our loyal outstation police and village officials.
This allowed a more comprehensive appreciation of the issues and often these issues could be settled by discussion rather than taking the matter further.
The traditional arbitration that occurred in the village was therefore part of the Kiap system of imposing law and and order. When that system starts to break down due to changes in society, the replacement by a more rigid judicial system becomes far less effective and sterile.
The operation of the law often then becomes disconnected to those to whom it applies.
Posted by: Paul Oates | 31 May 2018 at 09:14 AM
Phil - your point is well made. Maybe many readers of the blog are aware that the laws of PNG can be accessed on the internet. I have found that the ‘paclii’ web site is very useful.
The specific PNG site is http://www.paclii.org/countries/pg.html , and from there one can go to Papua New Guinea Consolidated Legislation and find legislation under alphabetical heading. For example the Criminal Code Act 1974 you refer to is available at http://www.paclii.org/pg/legis/consol_act/cca1974115/
The “sessional legislation” contains some amendments to the same act. There is also an up-to-date index that is useful.
Posted by: Garry Roche | 31 May 2018 at 06:22 AM