PNG Update 2018 UPNG Bal Kama PhD Candidate College of Law Australian National University Sessional Lecturer Faculty of Business Government and Law University of Canberra b alkamaanueduau ID: 704207
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BEYOND THE APEC YEARThe Role of the Judiciary in Papua New Guinea’s Democratic ProjectPNG Update 2018, UPNG
Bal Kama
PhD Candidate, College of Law| Australian National University
Sessional Lecturer| Faculty of Business, Government and Law| University of Canberra
b
al.kama@anu.edu.au
|
Twitter
@BalKama5 Slide2
OutlineWhat is the environment in which the courts are operating?
Key
court cases in the last five years
How has the role of the courts been defined within this environment
?
Some
reflection
on:
Election petition cases
Judicial intervention in royalty payments to landowners
ConclusionSlide3
What is the socio-political environment in which the courts are operating?Social environmentR
esource
-
rich, culturally diverse and resilient
Fragmented, highly litigious environment – frustrations, disputes and institutional inefficiencies constantly collide to produce both positive and negative outcomes for justice Political environmentVisionary and assertive leadershipPredatory political culture undermines institutions of good governanceSlide4
Some observations in the last five years:A weak parliament and an assertive executive (‘rubber stamp parliament’)Institutional weakness
(‘sleeping at the wheel’)
Highly complicated corruption allegations
levelled against public
office holdersInstitutional interferences/lack of independenceSlide5
2. Five key court cases in the last five years i
. Constitutional Crisis
–
2011-2012
Direct confrontation between arms of governmentii. Manus Island Detention Centre – Australia-PNGWeaknesses in parliamentBelden Namah in defence of the Constitutioniii. UBS Loan: Prime Minister Peter O’Neill, Ombudsman Commission and Public ProsecutorInstitutional lethargyiv. 30 months grace period: Ila Geno
A citizen’s response to institutional
weaknessesv. High level corruption
a
llegations & Task Force Sweep (
2014-2017)
Were they exonerated?Slide6
3. How has the role of the courts been defined within this political environment? “The courts tend to be formalistic and legalistic…
they sacrifice
the spirit for the letter of the
Constitution
… often introduced unnecessary rigidities. We cannot afford to have our courts take a narrowly legalistic approach if the law is to be justly applied. (CPC Report, 1974, Chap 8]Liberal and expansive functionInterventionist and transformative roleSlide7
Falling for ‘catchwords’?Doctrine of separation of powers, rule of law, innocent until proven guilty etc are becoming “new catchword[s] in Papua New Guinea.”
ESP
Case
2011, Deputy Chief Justice Gibbs Salika at [212]. “courts may unwittingly be protecting those with something to hide…rather than the interest of the people.” (Justice David Canings in (2008) N3526) Slide8
4. Some reflectionElection petition casesCompetency hearing – are the mandatory requirements for a petition (s 208) too rigid, at the expense of substantive allegations?Landowners (resource) royalty payments & Judicial
intervention
Is the current structure, including Alternative Dispute Resolution (ADR) sufficient or is there a need for a
specialised
court?Slide9
ConclusionAlotau Accord 2012:Goal: to be “the most decisive,
action-packed
, transparent and accountable Government the nation has ever seen.” p.1
‘Action-packed’ judicial
developments indeed.What will it be in the next 5 years beyond the APEC?