Canada has explicit separation of powers between arms of government

26/03/2012 10:37

Parliament-elected Prime Minister Peter O'Neill.


By Janethie Tinga @ Papua New Guinea Politics

I want to comment on the following quote (by parliament-elected Prime Minister Peter O’Neill): “The Law is not draconian and does not erode the impartiality of the judges as voiced by critics, including the usual two or three publicity-seeking members of the PNG Law Society. It must be pointed out that countries such as Australia, India, Canada and other Commonwealth nations have similar legislations or ethical standards to scrutinize judicial conduct and behavior. We are not alone here".

This is entirely incorrect for Canada. I am currently doing my LLM in international business law via the University of British Colombia and have visited with judiciary, the ministry of Justice, particularly with deputy director of prosecutions, deputy director of attorney general’s office for civil affairs and with a bencher of the British Columbia Law Society i.e. a board member of the law society and what they have all emphasized in common is the independence of each of their institutions.

They all function independently of the legislature or the executive branch of the government and even from each other and are all regulated by separate laws and the constitution. That is the essence of their constitution. Even the police are independent of the prosecution and do not answer to the prosecution at all. The deputy head of prosecution informed me that the police conduct its investigation independent of the prosecution and the prosecution only brings the matter into court when the police hands them the investigative files. They do not conduct investigations etc. They only act on an advisory role to the police when legal questions are asked of them. Similarly, as a federal state made up of provinces, each province's judiciary acts independent of the legislature. A committee is set up who selects the judges pursuant to a quota as stipulated by the law. A similar method is undertaken for the Supreme Court of Canada.

The separation of powers in Canada is extremely blatant and is not clouded by legislature overshadowing the judiciary. Accusations of misconduct of a member of the judiciary are dealt with by a committee pursuant to the judiciary law and not by the legislature at all. The British Columbia Law Society functions in a similar manner, whereby lawyers are governed by law enabling them to regulate themselves. They have benchers who form numerous committees who deal with a number of matters. For instance, there are committees solely for lawyer misconduct, who deal with misconduct issues and also provide assistance to lawyers to remedy such conducts; there are benchers in committees who provide further legal learning for members of the law society and others. The police force also functions in a like manner, i.e. the police work independent of the legislature or the judiciary or the prosecution. They have the police union which houses all police matters and deals with them. Should there be an issue of misconduct, an investigative committee is set up which looks into it. The legislature does not have authoritative control of the police force.

Anyhow, bottom line is, having been exposed to Canada's legal system, particularly, that of the province of British Colombia, I regret to say that the Prime Minister should not have used Canada as a “like” example with his government's attempt to BLATANTLY CRASH the wall of SEPARATION of POWERS. Canada's legislature does not overlook or even overshadow the functions of the judiciary. Each arms' independence are the backbone of democracy. The PM may give any excuse under the sun as he may wish but this ACT HAS TO GO!

Should PNG lack a body to oversee the function of the judiciary then an independent and impartial committee must be set up outside and as far away as possible to the legislature... IT CANNOT BE THE LEGISLATURE. THE LEGISLATURE CANNOT AND MUST NOT TAKE ON THAT ROLE.

To conclude, my challenge to whoever wrote or advised the PM on writing that speech and using Canada as an example of having similar legislation which gives the legislature the power to scrutinize behaviors of judges, is to write the name of the precise law here in Canada that they are referring to that purportedly has the same powers and I will follow up.

To fellow Papua New Guineans, please you all must stand up and have this piece of legislation amended to have an independent committee set up or have this law removed.

  • Janethie Tinga is currently studying for an LLM in International Business Law at the British Columbia University in Canada.