Politics
Judicial Independence Under Scrutiny In Region
Solomon Islands, Tonga situation highlighted
The independence of the judiciary in the Pacific came under scrutiny during the bi-annual 15th Pacific Judicial Conference in Madang, Papua New Guinea in June.
It was the biggest ever gathering of more than 50 international delegates at the Madang Resort Hotel. The participants mixed business with two days of recreation and relaxation in Madang and neighbouring Eastern Highlands provinces. A retreat at the end of the conference saw the participants travelling to the home of Papua New Guinea's Chief Justice, Sir Arnold Amet, on Karkar Island on the luxurious Madang Tourist Services vessel, Melanesian Discoverer. With a number of Pacific states experiencing civil unrest and crisis in their leadership, the issue of judicial independence was a concern for everyone.
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Officials from countries like the Solomon Islands and Tonga spoke about the growing challenges to the independence of the judiciary in their own countries, drawing sympathy and concern from the other countries. The problems shared were wide and varied from funding crisis that was affecting the courts in the Solomon Islands to Federated States of Micronesia's struggle to train and develop a cadre of judicial officers.
The Solomon Islands Chief Justice, Sir John Muria, won sympathy and support from his colleagues when he spoke about what was threatening the independence of the judiciary in his country. "I can tell you it is a struggle," Muria said, adding that salaries of judicial officers had been in arrears because there was no money. The courts, he said, were now struggling to meet operating expenses while salaries of judges, magistrates and court staff had not been paid for as long as three to four pay days. These include judges' financial entitlements. Despite the hardships, Muria said he had continued to run the courts.
"For the judiciary to throw in the towel and bow out because the executives who control the purse are not prepared to provide it with funds to carry out its constitutional duties is a grave sin of collaborative injustice," Muria said. "The judiciary is the only hope of the weak and the ordinary people in times of distress, as is the case in Solomon Islands."
Another Solomon Islands judge, Justice Frank Kabui, said with the economy of his country in tatters, the situation had set a real test for judicial independence. He said the critical financial constraint of the government made the judicial officers vulnerable. He said a relatively small judiciary like the Solomon Islands was dangerous because judicial officers were not anonymous to the public‹ a situation he described as the beginning of the way to corrupt a judge. "I am vulnerable because my salary is comparatively low and is always in arrears being the correct recipe for corruption to set in for the judiciary," he said.
Worrying developments
Meanwhile, in Tonga, parliamentary bills have been introduced to nullify the effect of the rulings by the court which has found attempts by the government to ban a Tongan newspaper unlawful. The bills include controversial provisions some of which strike directly at the powers of the court. Principally, amendments to the constitution will drastically restrict the present clause protecting freedom of opinion and of the press, and another will remove the powers of the court to review any decision of the Privy Council or the Legislative Assembly.
Tonga's Chief Justice Gordon Ward told the conference that these are serious and worrying developments. But they are not the result of Tonga being a constitutional monarchy. He said the situation began when the Tongan government attempted to ban the Taimi 'o Tonga (Times of Tonga) newspaper because it had frequently criticised government policies and actions.
Chief Justice Ward said he had found the bans on the newspaper, which was produced in New Zealand and imported to Tonga, to be unlawful on a number of grounds and made declarations to that effect. "On the day the judgment was to be delivered, the Privy Council met and passed an ordinance, The Protection from Abuse of Press Freedom Ordinance.
"It was passed the same morning the judgment was to be delivered and was gazetted that afternoon. The effect was effectively to reimpose the ban on the importation of the same newspaper. Subsequent challenge to the Protection From Abuse of Press Freedom Ordinance resulted in that also being declared unlawful and was immediately followed by another ordinance which attacked the foreign ownership of the newspaper.
"That is still pending, although the publishers of the newspaper have been granted interim relief," he said. He said that unlike the first two means employed to ban the paper, the third one was an Order in Council under the provisions of the Prohibited Publications Act.
"When the applicants challenged the legality of the Order in Council, the respondents countered with the suggestion that an Order in Council was not subject to review in the courts as it was an order of the King," Justice Ward said. "They strongly suggested that any review of that decision would be unlawful and the court had no right to interfere in any way which might be taken as suggesting a decision of the King was open to criticism. He said what the respondents were seeking was effectively to increase the personal prerogatives of the King or restore those, which former Tongan King Tupou 1 had ceded more than 150 years ago. Tupou I had established Tonga's constitutional monarchy in 1875 which had curbed his and succeeding monarchs' arbitrary power.
However, Justice Ward said the basis of his decision to review was that, whilst the position of the King in the Privy Council made it the highest organ of government, it was still part of the executive and its decisions though stated to be of 'the King in Council', were decisions of the Privy Council as a body.
"The fact that Tonga is a constitutional monarchy does make a difference, but not because of any power held or exercised by the King but because it allows much of this to be done under the claim that it is done in the name of the King or on his behalf." He said this would likely to mislead the public. "In the loyal belief that that is the true reason, they may be persuaded to accept a statute which will effectively emasculate the court by taking away its power to curb improper or excessive acts of the executive. "The court will still be independent but it will be impotent to protect the interests of the people."
