PNG CHIEF JUSTICE SUSPENSION ‘SERIOUSLY FLAWED’

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Judge Nemo Yalo calls act ‘serious attack on the Constitution’

By Todagia Kelola PORT MORESBY, Papua New Guinea (PNG Post-Courier, Nov. 14, 2011) – "The suspension of the Chief Justice by the National Executive Council (NEC) is procedurally and seriously flawed and unconstitutional even if there is evidence of misconduct in office," says former acting judge Nemo Yalo.

"It is a serious attack on the Constitution and on the Judicial arm of government for political convenience. The timing is all wrong," Yalo said when commenting on the NEC decision to suspend Sir Salamo Injia as the Chief Justice.

Yalo said the procedure for investigation of alleged or suspected misconduct in office by the Chief Justice and his suspension is provided under the Constitution.

The procedure under Section 179 Constitution is that where the NEC is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with the advice of the NEC, may appoint a tribunal and refer the matter, together with the NEC’s statement of reasons for its opinion to the tribunal.

Yalo said the key word "satisfied" means that the allegations NEC receives must be tested first through its own investigations.

This includes adhering to the basic principles of natural justice under Section 59(2) of the Constitution that the allegations must be put to the Chief Justice and his response be considered.

"The NEC cannot collect accusations and allegations from any mere busy body and suspend the Chief Justice. It must satisfy itself of those allegations by conducting proper thorough investigations just like every other leader whom the Ombudsman Commission investigates. NEC ignored this process," he said.

The next step is that the tribunal shall investigate and report its findings to the NEC.

If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the NEC, may, by notice in writing to the Chief Justice, remove him from office.

The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Services Commission (JLSC).

He said the Constitution does not provide for the suspension of the Chief Justice by the NEC at any time.

Section 182 of the Constitution says the Head of State shall, acting with and in accordance with the advice of the NEC suspend the Chief Justice when the allegations against him are referred to the tribunal.

Neither the NEC nor the Head of State shall suspend the Chief Justice prior to the investigation being referred to the tribunal.

Unless otherwise determined by the Head of State, acting with, and in accordance with, the advice of the NEC, the suspension shall be on full pay.

If at the time of the suspension a suspended Chief Judge was dealing with any judicial proceedings, he may continue and complete those proceedings unless the JLSC otherwise orders.

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