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The interventionist powers of the PNG judiciary

Kama - PNG judges
"“It is the people’s court and let them come by the hundreds if they have the right to come” - the late Justice Mari Kapi

BAL KAMA

CANBERRA - The national court of Papua New Guinea made a landmark court decision on the last Saturday of January when it ordered the Madang Provincial Government, the District Development Authority, and the Urban Local-level Government to fix the roads in Madang town.

The orders prescribed the specific financial contributions and administrative responsibilities of each level of government, including the national government, and also applied to the Madang members of parliament.

Justice David Cannings made the orders on the basis that the town’s road conditions were so bad as to affect the human rights of the people under the PNG Constitution.

Justice Cannings acted on his own initiative as provided under section 57 of the Constitution.

However, the decision raised questions among some people as to whether it was a proper use of judicial power.

And it raised the more important question of whether PNG judges can intervene in addressing development issues.

Furthermore, the implications of the decision demand greater clarity and understanding about the constitutionally-mandated role and purpose of the judiciary in PNG.

Under the Constitution, PNG judges have a broader social policing role than judges in many other countries, including Australia.

PNG judges are empowered by various provisions of the Constitution to be social engineers.

This means interpreting the Constitution and applying it with an intent to instigate reform or address social or policy problems that underpin, or have the potential to underpin, legal issues.

This approach includes prescribing practical solutions, such as the case in Madang.

The supreme court has affirmed on numerous occasions through various rulings that the PNG Constitution is to be interpreted broadly as ‘goal-oriented, purposive’ and ‘liberal’, not ‘strict, technical and legalistic’.

Judges are urged ‘to think expansively and to be dynamic’ and ‘to use judicial ingenuity to do justice’.

Their broad role in PNG society has been taken to mean that judges must be attuned to the ‘socio-political considerations which permeate the Constitution’ and to not turn a blind eye to the arena of politics.

The Constitution originated from one of the most exhaustive consultation processes globally, and it was guided by national PNG leaders.

The views of the people throughout the country, summarised in the 1974 Constitutional Planning Committee (CPC) Report, supported a liberal judiciary with broad powers of accountability to actively hold institutions of government accountable, and as a partner in the development of society.

There are at least 12 provisions in the Constitution that point to PNG as having a liberal and interventionist judiciary, not a conservative one.

In the CPC Report, judges were considered as ‘leaders’, not just judges. As such, they are expected to use their broad powers to actively address the suffering and injustices arising from lack of social development.

Judges are not expected to distance themselves from society’s problems. As the national court stated in 2006: “Judges in this country do not have the luxury of just being able to sit in court and wait for parties to come to them to resolve their disputes.”

The late chief justice Buri Kidu warned of arguments that tried to ‘cut down the powers’ of PNG judges and held that the “common law [of Australia or England] should not and cannot be used to cut down powers given…by the Constitution.”

Then chief justice Arnold Amet reaffirmed in 1997 that judges in PNG are “invested with unfettered discretion to fashion orders that will do justice.”

Judges have used these accountability-oriented powers in the past.

Examples include ordering parliament to sit, closing police cells for inhumane conditions and ordering government agencies to provide adequate funding for constitutional institutions.

In summary, judges in PNG have a constitutional mandate that goes beyond mere interpretation of the law to include policing the actions of the executive and the legislature.

While this is unusual, PNG is not unique – judges in South Africa and India, for instance, have similar interventionist powers.

What does this mean for the doctrine of separation of powers? This was adopted in a modified version under the PNG Constitution, not the traditional model as used in Australia and elsewhere.

There are two key modifications.

First, the liberal role of judges is different to the restricted role of judges under the traditional model of the doctrine.

Second, a ‘fourth arm’ of government, comprised of independent institutions such as the Ombudsmen Commission, the Constitutional and Law Reform Commission, the Public Prosecutor, and the Auditor General, is created by the Constitution.

These institutions are not subject to any arm of government. It means the ‘three arms’ of government model under the traditional doctrine of separation of powers does not strictly apply to PNG.

Having broad powers may suggest a risk of abuse by judges. However, inbuilt restraint mechanisms to counter rogue judges include appeals processes and referrals to the Ombudsman Commission.

The argument for restraint should not diminish the expectations placed on judges by the home-grown Constitution of PNG.

Judges can maintain their impartiality and independence while performing their mandated interventionist role in PNG society.

Justice Cannings decision in Madang is a strong reminder to political leaders and government agencies that prolonged failure to attend to development needs may affect their people’s human rights and result in court proceedings under the Constitution.

With many parts of PNG experiencing chronic underdevelopment, the Madang case may open the floodgates of litigation. However, that should not be a concern.

As the late Justice Mari Kapi reasoned, “It is the people’s court and let them come by the hundreds if they have the right to come”.

While the Madang case is open to appeal, Papua New Guinea should be grateful it has judicial institutions equipped with broad powers to promote accountability for the good of the people.

Comments

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Arthur Williams

Interesting move by Madang legal eagles. But raises perhaps more issues of greater concern to PNG's 70% plus isolated rural communities who see their 1960s or even earlier kiap roads reverting back to muddy tracks, aid posts closed, wharves falling into the sea, school facilities rotting etc.

It now seems judges and district magistrates, even perhaps lowly village court magistrates, have this devolved power and are now empowered to become inspectorates for the Public Works Department.

Good move by Madang and looks like PNG is on right road to divert funds from the swamp of the capital.

Alas I read how another judge believes landowners have no legal standing....

2021/02/18 - 'Traditional LOs of Hides PDL-7 case dismissed (as they had no standing' ) by Karo Jesse in The National.

Proceedingsfiled by landowners of Hides PDL seven concerning landowner issues within the Hides Gas project area has been dismissed by the National Court for abuse of court process and non-compliance of court order.

Justice Nicholas Miviri yesterday upheld an application filed by the state seeking to have the matters dismissed for want of plaintiffs’ (landowners) standing.

He dismissed the proceedings for landowners’ failure in complying with directives of the court.

“Taking account of all set out above, the entire proceedings is hereby dismissed for abuse of process and non-compliance of the rules of the court” he said.

“I am fortified in this light to follow suit because there has been nothing placed before me to sway the continued life of this proceedings.”

The judge found that the landowners failed to present to the court documents establishing their legal standing to bring the cause of action.

The court was trying to find out what authority the landowners professed to their representative status in law in the matter as they were ordered on Oct 30 last year to portray their representation before the court.

However, none had published nor filed anything in relation to the case before the court.

Justice Miviri said because land was communally owned, representative actions must be properly authorised in law before the court so that decisions made drawback, giving effect.

He found that the landowners had issues with legal standing and had representative issues on record.
There were two other motions by the landowners seeking joinder and dispensation of services which were dismissed forthwith."

It seems that traditional landowners are mere robots on their lands with no customary or traditional rules being accepted by the courts.

The wishes of the Wafi Golpu mine landowners, their LLGs; their Provincial Government Government are ignored by Waigani.

What about the United Nations’ Declaration on the Rights of Indigenous Peoples 2007:

Emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations.

Prohibits discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.

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