Supreme Court of Papua New Guinea

The Supreme Court of Papua New Guinea has been the highest court of Papua New Guinea since 16 September 1975, replacing the pre-Independence Supreme Court (corresponding to the post-Independence National Court) and the overseas appellate tribunals from 1902 to 1975 of the High Court of Australia and the Judicial Committee of the Privy Council. Judges of the pre-Independence Supreme Court automatically became the justices of the National Court and accordingly among the pool of judges available to be empanelled as a Supreme Court bench. "The National and Supreme Court of Papua New Guinea is composed of the Chief Justice, Deputy Chief Justice and 21 Judges."

"Full Court" of the National Court

Not separately constituted, it is an appellate committee or "full court" of the National Court, which is the superior-level trial court; judges of the National Court form panels of the Supreme Court on an ad hoc basis to hear appeals from the National Court and from assorted administrative tribunals as well as to hear references in the Court's original jurisdiction.

Reference jurisdiction and the separation of powers

In the latter case the court is, strictly speaking, not exercising a judicial function but rather, pursuant to the ruling of the Judicial Committee of the Privy Council in Attorney-General of Ontario v. Attorney-General of Canada (Reference Appeal) [1912] AC 571, one of advising the executive branch of government, a jurisdiction expressly conferred on the Supreme Court by PNG's Constitution. Other jurisdictions, notably the USA (federally, though not in all States) and Australia, eschew the reference function for their courts on the grounds that it violates the principle of the separation of powers as among the legislative, executive and judiciary; in Canada it is held that the principle is inapplicable in a parliamentary democracy.

The constitutional convention which deliberated on the drafting of Papua New Guinea's Constitution immediately prior to Independence took counsel from Canadian academics and the reference procedure was readily adopted. In Papua New Guinea jurisprudence, as in Australia, the formula "separation of powers" is frequently referred to. However, as in Australia (and unlike in the USA where the principle was enunciated and where the executive is not responsible to the legislature) it has a special limited application, being confined to describing the well-established convention of an independent judiciary, dating from the English Bill of Rights, 1689: the executive is, of course, responsible to the legislature in Papua New Guinea's Parliament.

Developing the underlying law

The Supreme Court (together with the National Court) has a special responsibility for developing the "underlying law," i.e. the common law of Papua New Guinea, having resort to those rules of local custom in various regions of the country which may be taken to be common to the whole country. The responsibility has been given additional express warrant in the Underlying Law Act, 2000 which purports to mandate greater attention by the courts to custom and the development of customary law as an important component of the underlying law. In practice the courts have found great difficulty in applying the vastly differing custom of the many traditional societies of the country in a modern legal system and the development of the customary law according to indigenous Melanesian conceptions of justice and equity has been less thorough than may have been anticipated in 1975; the Underlying Law Act does not yet appear to have had significant effect.

Hierarchy of precedent

The hierarchy of case law precedent is that while the Supreme Court has authority to overrule any case authority, its own decisions are binding on the lower courts as are the decisions of the English superior courts prior to PNG's independence, which are deemed to be part of PNG's underlying law. Decisions of the pre-Independence Supreme Court of PNG are deemed to be foreign law, equivalent in authority to decisions by any foreign court with a similar legal system, and of persuasive value only. The principle of the mere persuasiveness of overseas (and pre-Independence PNG) authority vis-à-vis the binding authority of pre-1975 English authority has been applied many times: in, for example, Toglai Apa and Bomai Siune v. The State [1995] PNGLR 43) that it is bound to follow the English case of Rookes v Barnard (House of Lords) [1964] AC 1129; [1964] 1 All ER 367 on the ineligibility of plaintiffs to an award of exemplary damages against ministers of the state or public servants other than in strictly limited circumstances, notwithstanding its having been decisively overruled by both the High Court of Australia and the Supreme Court of Canada.

Appeals from the Supreme Court to the Judicial Committee of the Privy Council were abolished by Ireland in 1933, Canada in 1949, India in 1950, Guyana in 1970, Sri Lanka in 1972, Australia federally in 1968, and from Australian States in 1975. They accordingly did not exist from the High Court of Australia when Papua New Guinea was granted independence, and consideration of appeals to London from Papua New Guinea did not arise. Canadian appeals to the Privy Council were often heard by an Australian judge and vice versa; admirable cases decided in the other country are occasionally followed as are parliamentary statutes adopted even yet though seldom expressly acknowledged. The same naturally occurs in Papua New Guinea’s High Court and Parliament regardless whether the judge who makes such decision is Papua New Guinean or expatriate, there being no abandonment of sovereignty in this.

Chief Justice

The Chief Justice of the National Court is also the Chief Justice of the Supreme Court, styled the Chief Justice of Papua New Guinea. The independence of the Bench was tested in 1979 during the Rooney Affair (see Law of Papua New Guinea), whose outcome was the resignation of Sir William Prentice, the second (and expatriate) Chief Justice of Papua New Guinea together with three other expatriate judges.

Sir Buri Kidu then became the first national Chief Justice (1980–1993). At the end of his ten-year term he was succeeded by Sir Arnold Amet (1993–2003). Amet was succeeded by Sir Mari Kapi, who served as chief justice from August 16, 2003 until his resignation in 2008 for health reasons. Kapi was succeeded the same year by Chief Justice Sir Salamo Injia.