Supreme Court judgements are based on legal reasoning
PNG's Supreme Court complex in Port Moresby. Picture courtesy of ABC.
By Michael C Cholai
Some friends asked me to explain to them how the process of “stay orders” is made by courts and what it entails. I am encouraged to explain as a practicing lawyer what all this means and hope it makes some sense to you to appreciate what battles are now being fought by the Parliament and the courts.
A stay order can be sought by an aggrieved party to suspend the operation of a legally enforceable order or Act so as to maintain a “status quo”, until the documents are filed from both sides so as to have the court have the full picture of the whole case and then make a decision based on evidence before it as to whether or not the stay order should be uplifted or quashed and the original order be enforced against the aggrieved party.
In the case where the Chief Justice was granted a permanent stay order by Justice Manuhu, it was found in evidence that the matter has been administratively resolved by the payment of the monies he directed to be held in the court’s trust account to the beneficiary of the will. The complaint laid to police some years back was still on police record so it was “politically motivated” to make the Chief Justice appear to have breached a court order or misappropriate the money.
The idea was this will be a basis for removing him as Chief Justice. Prior to this event the Chief Justice was in the process of issuing contempt proceedings against Peter O’Neill and Dr Allan Marat. This infighting has now developed to a matter of national crisis with the introduction of the Judicial Conduct Act being rushed through Parliament.
A stay order is usually applied for ex-parte, meaning the aggrieved party will go to court with sworn affidavit and without the presence of the other party, to convince the court that he has a good reason for seeking a stay order and that to allow the order to be carried will create hardship to the aggrieved party. The court will issue a stay order and orders that the documents to be served on the person who got the order to also file documents to reply to the affidavits of the aggrieved party, to convince the court that he has a case to stop the order being enforced against him. The court then hears both parties and makes orders to remove the stay order and allow the previous order to be enforced or makes other orders to nullify the previous order.
Stay orders are normally temporary orders sometimes referred to as temporary injunctions or restraining orders and has a time limit set to it to finalize the matter. In the case of permanent stay order, it is saying in effect that there is no actionable claim and therefore no need for the court to peruse it and it will be on pending file as the matter is really resolved.
A judge does not give a stay order as he wishes, even if is against a colleague judge. He or she follows the rules of the court and proper laws and makes his decision, and his decision is open to public scrutiny as court files are open for inspections by any member of the public. And if you are not happy with the decision you have a right to appeal to a higher court. Any person can apply to any court for a stay order and it is not only available to judges or Lawyers.
In the present case, where a stay order was granted by the Supreme Court consisting of three judges to the suspension of the Chief Justice and Justice Kirriwom, the court is saying in effect that the challenge by the Morobe Provincial Government to question the validity and constitutionality of The Judicial Conduct Act has to be determined by the Supreme Court. And until that is decided the status quo must be maintained so they will remain as judges until a decision is handed down. I could not state what evidence was brought to the court to grant a stay order but it can be assumed that the evidence showing the probability of the case reference being successful is evident to give the judges the reason for granting the stay order.
Members of Parliament and the public should not feel threatened by a stay order or see it as something sinister. It is an acceptable legal process that is available when a case warrants it and it serves a useful purpose of allowing all parties to file all necessary documents so the court is fully briefed and sees both sides of the argument before it will hand down its decision.
Stay orders are not an obstruction to carry out a court order or legal directive. It is issued because the court assesses the evidence and finds that in spite of the order, there is an arguable case for the aggrieved party, which requires for a full argument by the parties. So in the case of the reference by the Morobe Provincial Government, if the court rules that the Judicial Conduct Act is unconstitutional, illegally made and therefore not enforceable, the judges will not be unfairly penalized under an illegal law but if the court rules otherwise, the stay order will lapse and the judges are suspended by virtue of the Act.
The Supreme Court will hand down its decision based on the constitutionality of the Act – that is whether the Act breaches provisions of the Constitution and their reasoning will cover full analysis of the manner, method and application of the law. Their judgment once handed down is public property and anyone can go to the court registry and read it all fully and understand how they came to the decision they made. They do not make decisions based on their own biasness or prejudices but rather by legal reasoning and according to established laws in force.
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Michael C Cholai is a Papua New Guinean lawyer based in the PNG town of Alotau and his commentary was originally published in a Google group Manus Professionals for Community Development Inc.