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Papua New Guinea: Justices Charged with Sedition

(June 14, 2012) Chief Justice Sir Salamo Injia of the Supreme Court of Papua New Guinea (PNG) was arrested on charges of sedition on May 24, 2012, after police stormed the Court and took him into custody. The charge is based on a ruling issued on May 21 by an Injia-led, three-justice bench, affirming an earlier decision to the effect that the former Prime Minister, Sir Michael Somare, should be reinstated in place of the current leader, Peter O'Neill (Jaclyn Belczyk, Papua New Guinea Top Judge Arrested for Sedition, PAPER CHASE NEWSBURST (May 24, 2012); Patrick O'Connor, Papua New Guinean Government Arrests Chief Justice, WORLD SOCIALIST WEB SITE (May 25, 2012).)

Injia was released on bail and appeared in court the next day. He did not enter a plea, and the court adjourned to hear the case on July 25. (Papa [sic] New Guinea's Parliament Under Blockade by Police, THE CHRISTIAN SCIENCE MONITOR (May 25, 2012).) Soon after Injia was charged with sedition, on May 28, a second judge involved in the May 21 ruling, Justice Nicholas Kirriwom, was charged with the same crime and with allegedly having conspired with Injia “to take sides against the state.” (Liam Fox, PNG Court Orders Sir Michael Somare Be Reinstated, ABC (Australia) (May 22, 2012).) In February, Kirriwom had sent an internal court email to other justices of the original five-man bench, in which he referred to the O'Neill government an “illegal regime.” (Id.) When that email was made public on May 20, two of the justices withdrew from the case. It is unclear whether the content of the email figures in the sedition charge, or whether it is based on the Court's ruling alone. It is also not clear why the third judge has not been charged.

The May 21 decision was the second ruling by the Court that Somare – replaced by the PNG Parliament in August 2011 with current Prime Minister O'Neill, while Somare was on an extended leave to receive medical treatment outside the country – should be reinstated as PNG's legitimate prime minister. (Id.) The initial ruling had stated “that O'Neill's installation as prime minister in August 2011 was 'unconstitutional, invalid and of no effect,'” and that he must hand over power to Somare. (O'Connor, supra.) The Court had rendered its first judgment on the issue in December 2011. In January 2012, a Somare supporter was charged with mutiny after unsuccessfully attempting to take over the military and ordering O'Neill to resign. (Papa [sic] New Guinea's Parliament Under Blockade by Police, supra.)

Criminal Code Provisions on Sedition

Under the Criminal Code Act 1974 of Papua New Guinea, a seditious intention is one that, for example, a) brings “the Queen and Head of State into hatred or contempt” or b) “excite[s] disaffection against—(i) the Queen and Head of State, the National Government or the Constitution …; (ii) the Parliament; or (iii) the administration of justice; … .” (Criminal Code Act 1974 (as last amended by Law No. 27 of 2002), Cap. 262, art. 44.) A “seditious enterprise” is defined as an enterprise undertaken in order to carry out a “seditious intention,” which may be expressed in “seditious words” or “seditious writing.” (Id. art. 46(1)-(3).) Anyone who conspires to carry out a seditious enterprise or “advisedly publishes” seditious words or writing is guilty of a misdemeanor and subject to a term of imprisonment of up to three years, if the perpetrator has no prior conviction for such an offense. (Id. art. 54(1).)

Prime Minister O'Neill's Stance

Since November 2011, the O'Neill government “has twice tried and failed to suspend Sir Salamo [Injia] …, accusing him of bias against it,” and Injia was also arrested by the police for alleged mishandling of court funds, “but the court put a permanent stay on those proceedings.” (Eoin Blackwell, Papua New Guinea Chief Justice Sir Salamo Injia Held for Sedition, HERALD SUN (May 25, 2012).) O'Neill was able to secure a parliamentary majority and openly defy the December 2011 Supreme Court decision; having refused to accept the Supreme Court's decisions, he is in a standoff with the judiciary. (O'Connor, supra, & Belczyk, supra.) In the view of the O'Neill government, “the court is biased and is trying to interfere with the upcoming elections … .” (Papa [sic] New Guinea's Parliament Under Blockade by Police, supra.)

According to O'Neill,

It has become apparent that the supreme court has made decisions to try and create a chaotic situation in the country. If the supreme court and members of the bench who handed down the decision cared about the stability of the country, the decision should have been handed down after the elections and the selection of a new government. (Fox, supra.)

O'Neill tried to reconvene Parliament to deliberate the May 21 Supreme Court judgment. The move was unsuccessful, however, because most of the members are campaigning for upcoming national elections, scheduled to begin on June 23. On May 25, the day after the sedition charges were made against the Chief Justice, police blockaded Parliament and reportedly indicated that they would not allow it to convene until after the two-week election period. (Papa [sic] New Guinea's Parliament Under Blockade by Police, supra.)

A New Twist by the Parliament

On May 29, 2012, the Deputy Speaker of Parliament, Francis Marus, added a new dimension to the situation by declaring in that body that the Prime Minister's office is vacant; i.e., that while the recent Supreme Court ruling meant that Somare is the legitimate Prime Minister of Papua New Guinea, because he had missed three consecutive parliamentary sessions since January, the office was rendered vacant. (Liam Fox, PNG Parliament Told Prime Minister's Office Vacant, RADIO AUSTRALIA (May 29, 2012).) Marus concluded the sitting after scheduling the election of a new Prime Minister as the first item on the parliamentary agenda for May 30. (Id.) On that day, the legislators elected O'Neill prime minister unopposed and he was instated for the third time, albeit only after the acting governor-general's initial suspension of the swearing-in ceremony. (Eoin Blackwell, O'Neill Sworn In as PNG PM, THE SYDNEY MORNING HERALD (May 30, 2012).)

On May 21, Somare, for his part, had reportedly declared himself to be the caretaker prime minister until the election results are finalized. (Fox, supra.)

Reaction from Commonwealth Legal Community

In the meantime, the Commonwealth Lawyers Association, whose executive committee is based in London, issued a statement of concern about the arrest of Injia and also noted the arrest of Kirriwom. It remarked that the recent charges

follow an earlier attempt to arrest the Chief Justice prior to hearings in which the caretaker Government of Papua New Guinea was a party. The National Court in Papua New Guinea permanently stayed the charges against Chief Justice Injia on 13 March 2012, referring to the actions against Chief Justice Injia as an “abuse of process” … . Commonwealth Lawyers Association, Statement on Recent Arrest of Chief Justice Sir Salamo Injia in Papua New Guinea (May 30, 2012).)

The statement pointed out that article 157 of the PNG Constitution “specifically provides for the independence of the national judicial system and states that Parliament may only exercise authority over the judiciary through legislation,” and called upon the country's caretaker government “to adhere to the correct procedures, as set out in the Constitution, should it seek to discipline judicial officers for alleged misconduct.” (Id.)

In addition, the CLA expressed concern “about the manner in which the judges were arrested, together with the nature of the charges which effectively arise out of a judicial pronouncement and are contrary to the rule of law.”(Id.) It called upon the government “to revoke the Judicial Code of Conduct Act 2012 which does not comply with the provisions of the Constitution and is contrary to the Commonwealth's fundamental values and the rule of law … .” (Id.; see also About Us, CLA website (last visited June 11, 2012); Constitution of the Independent State of Papua New Guinea(Aug. 15, 1975) (Consolidated to Amendment No. 22) (official text, last visited June 11, 2012); Constance A. Johnson, Papua New Guinea: Controversial Law Stayed After UN Official Expressed Concerns, GLOBAL LEGAL MONITOR (May 1, 2012).)