Sir Buri Kidu,
KBE (8 August 1945 – 30 January 1994) was the first national Chief Justice of
Papua New Guinea
Papua New Guinea (abbreviated PNG; , ; tpi, Papua Niugini; ho, Papua Niu Gini), officially the Independent State of Papua New Guinea ( tpi, Independen Stet bilong Papua Niugini; ho, Independen Stet bilong Papua Niu Gini), is a country i ...
.
Biography
Buri Kidu was educated at
Toowoomba Grammar School
, motto_translation = Faithful in All Things
, city = Toowoomba
, state = Queensland
, country = Australia
, coordinates =
, type = Independent, day & boarding
, denomination = Non-denominational
, established = ...
,
Toowoomba, Queensland
Toowoomba ( , nicknamed 'The Garden City' and 'T-Bar') is a city in the Toowoomba Region of the Darling Downs, Queensland, Australia. It is west of Queensland's capital city Brisbane by road. The urban population of Toowoomba as of the 2021 C ...
,
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, where he was
School Captain
A school is an educational institution designed to provide learning spaces and learning environments for the teaching of students under the direction of teachers. Most countries have systems of formal education, which is sometimes compul ...
[''"Australian Story: Oh, Carol"'']
- Australian Broadcasting Corporation - Monday, 13 September 2004 - Retrieved 19 October 2006. and at the
University of Queensland
, mottoeng = By means of knowledge and hard work
, established =
, endowment = A$224.3 million
, budget = A$2.1 billion
, type = Public research university
, chancellor = Peter Varghese
, vice_chancellor = Deborah Terry
, city = B ...
,
St Lucia, Queensland
St Lucia is a riverside suburb in the City of Brisbane, Queensland, Australia. In the St Lucia had a population of 12,574 people. The University of Queensland is the main attraction of St Lucia, with the university, and residential colleges cov ...
(LLB, 1970).
[James, R.W. and Fraser, I. ''"Legal Issues in a Developing Society."'' Waigani, NCD: Faculty of Law, University of Papua New Guinea. 1992. p.232.] His entire professional life was spent in Papua New Guinea. He was a Legal Officer in the Department of Law (1971–72), Acting Crown Prosecutor and Crown Prosecutor (1972), Senior Legal Officer (1972–74), Acting Crown Solicitor and Crown Solicitor (State Solicitor after Papua New Guinea Independence, 16 September 1975) (1974–76), Acting Secretary of Justice (1977), Secretary of Justice and Principal Legal Officer to the National Executive Council (Cabinet) (1978–79), Secretary, Prime Minister’s Department (1979–80) and Chief Justice of Papua New Guinea (1980–93).
He was appointed a Knight Bachelor (Kt) in 1980.
Appointment and term as Chief Justice
Sir Buri was appointed Chief Justice in 1980 by the Government of Prime Minister Sir Julius Chan, who took office after the Government of Prime Minister Michael Somare had been defeated in a no-confidence motion in Parliament following the Rooney Affair, an early crisis of judicial independence during which the first Chief Justice, Sir Sydney Frost, an Australian, and three expatriate puisne justices resigned (see
Law of Papua New Guinea The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law.
Constitution
The Constitution is "autochtho ...
).
During his term as Chief Justice Sir Buri secured independent financing of the judiciary, with a separate appropriation bill, so that its budget was not in the control of the Justice Minister from time to time.
[Austin, Steve]
''"Lady Carol Kidu in conversation"''
- Australian Broadcasting Corporation - 4 February 2005 - Retrieved 19 October 2006. Indeed, during Sir Buri’s ten-year (plus three years) term of office as Chief Justice the superior courts of Papua New Guinea rigorously maintained an independent role for the courts vis-à-vis the executive and the legislature — a position which
Lady Kidu (now Dame Carol Kidu) feels was vital in the decision of the
Wingti Government to oust him as Chief Justice in 1993 when his statutory ten-year term had elapsed.
Expiry of Term and Non-reappointment
In August 1993 Sir Buri's second term in office expired, and he was not reappointed by the
Wingti Government (when he was two years short of the age qualification to receive a pension, leaving him without an income).
Sir Buri was not advised that he was to be replaced, a default which had become standard practice in the Papua New Guinea public service but which Sir Buri had laboured to ensure would not be the case in the National Judicial Staff Services — Sir Buri had sought to keep the NJSS free of political influence — and he was left to infer it from the news that a new Chief Justice other than himself had been appointed.
It has been alleged that Sir Buri — who had come to office in the midst of a crisis as to the independence of the judiciary — was perceived as demanding more independence for the judiciary vis-à-vis the executive than the Wingti Government would have preferred,
and that this was the reason his term as Chief Justice was not extended, at least to the point where he would have qualified for a pension.
He died four months later of a heart attack. His widow, Lady Buri Kidu (now Dame Carol Kidu), now herself a political person of some note in Papua New Guinea, has suggested that political motivations during the premiership of
Paias Wingti
Paias Wingti (born 2 February 1951) is a Papua New Guinean politician. He served as the third Prime Minister of Papua New Guinea between 1985 and 1988, and again from 1992 to 1994. Early life and education
Wingti hails from the Jika Tribe of the ...
, then in office, as to the independence of the judiciary were brought to bear on Sir Buri's ouster as Chief Justice, and such matters bore considerably on her own decision to enter politics.
Independence of the judiciary
The
Constitution of Papua New Guinea The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law.
Constitution
The Constitution is "autochthono ...
left the judiciary of PNG in a somewhat anomalous position, deeming as it did the case law of the English superior courts as of the date of PNG Independence to be part of the "underlying law" of Papua New Guinea (i.e. the indigenous common law) whereas the decisions of the pre-Independence Supreme Court of Papua New Guinea were to be foreign law, on an equal footing as to persuasiveness with the decisions of other superior courts in countries having similar legal systems — most obviously Australia, but also New Zealand and Canada, as well as post-1975 England. This left the post-Independence PNG courts with somewhat a clean slate, though given that the immediately post-Independence Supreme and National Court personnel were the same as those who had occupied the Bench immediately prior to Independence, it was not immediately apparent that this was a conundrum.
With the Rooney Affair (see
Law of Papua New Guinea The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law.
Constitution
The Constitution is "autochtho ...
) it became obvious that a watershed had been reached: would the judiciary now toe a political line, as in many other developing countries, or would it continue to be forthrightly independent of political interference?
In fact the Supreme and National Courts of PNG under Sir Buri Kidu stoutly maintained a firm adherence to judicial precedent as mandated by the Constitution, even to the extent of adhering to pre-1975 English precedent when Australian and other non-English common law jurisdictions had departed from such precedent (see
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 tribunal ...
).
Hierarchy of precedent
After the
Rooney Affair it was a matter of some concern what direction the law of Papua New Guinea would take. Sir Buri quickly established that the mandate of the Constitution would stand and that even when its provisions as to the pre-1975 decisions of English courts might be out of keeping with arguably more sensible jurisprudence of jurisdictions of persuasive authority, such decisions must stand because that was what the Constitution mandated (see
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 tribunal ...
).
Sir Buri quickly established that notwithstanding any implications of the Rooney Affair as to relations between the Executive and the Judiciary, the judiciary was wholly independent: Indeed, 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. The 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 other-than-English overseas (and pre-Independence PNG) authority vis-à-vis the binding authority of pre-1975 English authority has been compellingly reasserted in, for example, ''Toglai Apa and Bomai Siune v. The State''
995
Year 995 (Roman numerals, CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 17 May - Fujiwara no Michitaka (imperial regent) dies.
* 3 June: Fujiwara no ...
PNGLR 43 that it is bound to follow the English case of ''Rookes v Barnard'' (House of Lords)
964
Year 964 ( CMLXIV) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
Byzantine Empire
* Arab–Byzantine War: Emperor Nikephoros II continues the reconquest of south-eastern Anatoli ...
AC 1129;
964
Year 964 ( CMLXIV) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
Byzantine Empire
* Arab–Byzantine War: Emperor Nikephoros II continues the reconquest of south-eastern Anatoli ...
1 All ER 367 notwithstanding its having been comprehensively disapproved in both Australia and Canada soon after it was decided.
Personal life
In 1969 Sir Buri married
Carol Millwater of
Brisbane
Brisbane ( ) is the capital and most populous city of the states and territories of Australia, Australian state of Queensland, and the list of cities in Australia by population, third-most populous city in Australia and Oceania, with a populati ...
,
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, whom he had met at a fitness camp when they were high school students, he at
Toowoomba Grammar School
, motto_translation = Faithful in All Things
, city = Toowoomba
, state = Queensland
, country = Australia
, coordinates =
, type = Independent, day & boarding
, denomination = Non-denominational
, established = ...
and she at Sandgate High School. They had six children.
Sir Buri died of a massive heart attack on 30 January 1994, at the age of 48, five months after the elapse of his term of office as Chief Justice.
Lady Kidu entered Parliament in 1997 as Member for Moresby South and became Minister of Community Development.
''"Social justice advocate receives honorary doctorate"''
The University of Queensland, News Online. - 13 December 2005 - Retrieved 20 October 2006. Lady Kidu was made a Dame Commander of the Order of the British Empire
The Most Excellent Order of the British Empire is a British order of chivalry, rewarding contributions to the arts and sciences, work with charitable and welfare organisations,
and public service outside the civil service. It was established ...
in 2005 and is now Dame Carol Kidu.
Notes
Bibliography
* James, R.W. and Fraser, I. ''Legal Issues in a Developing Society''. Waigani, NCD: Faculty of Law, University of Papua New Guinea, 1992.
* Kidu, Carol. ''A Remarkable Journey''. N.p.: Longman, 2002.
* Weisbrot, D., Paliwala, A. and Sawyerr, A. ''Law and Social Change in Papua New Guinea''. Sydney: The Law Book Company, 1982.
{{DEFAULTSORT:Kidu, Buri
Law of Papua New Guinea
1945 births
1993 deaths
Papua New Guinean knights
Papua New Guinean Knights Bachelor
Papua New Guinean Knights Commander of the Order of the British Empire
Chief justices of Papua New Guinea