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Was Cannings’ Madang decision judicial overreach?

Bal Kama
Dr Bal Kama clarifies the unusual role accorded to PNG judges by the national Constitution

BAL KAMA
| Your Daily Press | Edited

CANBERRA - There are concerns about Justice David Cannings’ orders late last week for the Madang Provincial Administration and Madang District Development Authority to fix the roads in Madang.

Many say Cannings overstepped his role as a judge. But is that so? Arguably, the brief answer is ‘no’, based on the Papua New Guinea Constitution.

In brief, the Constitution intends that judges in PNG have a broader role of social policing, not the narrow legalistic function of judges in other countries.

Judges are meant to be social engineers in their work of interpreting the Constitution and laws, a task intended to go beyond the confines of the ‘black letter law’ judicial approach advanced in the British tradition.

Judges have interventionist powers to directly question the action or inaction of the executive and legislative arms of government as part of a broader accountability framework. Globally, they are not alone – judges in South Africa, for instance, have similar social reform powers.

What does that mean for the doctrine of separation of powers?

This was adopted in a modified version under the Constitution, so does not apply in its traditional form where judges have a restricted role.

In PNG’s modified version, judges have a role in holding government agencies and institutions directly accountable and not just waiting for legal disputes or complaints to come to them.

This needs to be understood and accepted in PNG to avoid tensions between the arms of government or misunderstanding among the public in cases such as this in Madang.

Previously, tensions have aroused as a result of misunderstandings, resulting in crises and the undermining of the courts.

David Cannings
Justice David Cannings - "Not afraid to exhaust the powers of the judiciary for the sake of suffering people"

One needs to read the ideas and intents of the drafters of the PNG Constitution in the early 1970s to understand the reasons behind the unique powers of the PNG judges, who are referred to as ‘leaders’ not just judges.

Scholars in other countries have admired the ingenuity and foresight of the drafters of the PNG Constitution, who undertook a highly consultative process that was rare in global terms.

The broad powers of PNG judges therefore come from the people and are cemented in the Constitution.

Cannings order was not the first time judges have used appropriate sections of the Constitution to direct government officials and state institutions to act for the good of the people, their rights and the betterment of society.

Other examples include ordering parliament to sit, closing police cells for inhumane conditions and summoning minister to carry out maintenance.

So people need not be alarmed. Such powers are constitutionally based and within the intention of the Constitution for socially transformative judicial powers.

Cannings was therefore acting within the intent and spirit of the unique home-grown Constitution.

That said the decision establishes an important precedent to hold political actors accountable, consistent with the transformative intents of the Constitution.

Putting aside politics and political allegiances, the people of PNG should be optimistic, like their forefathers were, when they had the foresight to build a judicial institution with critical public accountability powers for the good of the people of this country.

On that note, judges like David Cannings are rare; a once in a lifetime judge who is not afraid to exhaust the powers of the judiciary in depth for the sake of suffering people.

He has done so in many similar cases with great skill, independence, and without fear or favour.

I should note that an appeal to the Supreme Court is possible and it might take a different view. But, whatever the outcome, this will not deviate from the importance of Cannings’ decision and its roots in the PNG Constitution.

Dr Bal Kama specialises in public and constitutional law is writing a book on judicial powers in Papua New Guinea

Comments

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Emily Kumbak

I'm a big fan and I follow Justice David Canning's news update. Can I kindly consult one of his associates? It concerns some human rights laws.

Philip Kai Morre

Justice David Cannings is the protector of social justice and human rights violations.

The people of Madang have the rights to access good roads and enjoy their region to the fullest.

To fix Madang town road is the responsibility of Madang MPs and their administration. This should be the case not only in Madang but in other provinces as well.

Kundiawa town is similar to Madang town but much worse with lots of rubbish and buai debris and stains everywhere.

Its time MPs and the administration prioritised roads and improved towns and urban centres.

Where there are good roads leading from towns to remote areas, there is development and people are happy.

David Kasei Wapar

Madang is fortunate to have such a great man who holds the province dear to his heart.

What more can we get out of such a valuable asset while we still have him?

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