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The Supreme Court of Papua New Guinea has been the highest court 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 ...
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 The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...
and the
Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
. Judges of the pre-Independence Supreme Court automatically became the first justices of the National Court and accordingly among the pool of judges that were available to be empanelled as a Supreme Court bench.


Establishment and composition

The Supreme Court was established as a
superior Superior may refer to: *Superior (hierarchy), something which is higher in a hierarchical structure of any kind Places *Superior (proposed U.S. state), an unsuccessful proposal for the Upper Peninsula of Michigan to form a separate state *Lake ...
court of record A court of record is a trial court or appellate court in which a record of the proceedings is captured and preserved, for the possibility of appeal. A court clerk or a court reporter takes down a record of oral proceedings. That written record ...
under Papua New Guinea's
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
. The Chief Justice of Papua New Guinea, Deputy Chief Justice and the judges of the National Court (excluding acting judges) comprise the Court. Not separately constituted, the Supreme Court 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
appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
s from the National Court, appeals from assorted administrative tribunals, and to hear references in the Supreme Court's
original jurisdiction In common law legal systems original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision. India In India, the Su ...
.


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 The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
in ''Attorney-General of Ontario v Attorney-General of Canada (Reference Appeal)''
912 Year 912 ( CMXII) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar. __NOTOC__ Events By place Byzantine Empire * May 11 – Emperor Leo VI (the Wise) dies after a 26-year reign in wh ...
AC 571, one of advising the
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...
of government, a jurisdiction expressly conferred on the Supreme Court by Papua New Guinea'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 Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typi ...
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 Guinean 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 In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
.


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 th
''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. An ardent proponent of the underlying law, David Gonol in his book titled ''The Underlying Law of Papua New Guinea: An inquiry into adoption and application of customary law'' expounded at length on these issues. Further, in the 2017 Third National Underlying Law Conference, many notable speakers expressed similar sentiments that the underlying law is not being developed at sufficient pace.


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 Papua New Guinea's independence, which are deemed to be part of Papua New Guinea's underlying law. Decisions of the pre-Independence Supreme Court of Papua New Guinea 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 Papua New Guinea) 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'' 995PNGLR 43 that it is bound to follow the English
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
case of ''Rookes v Barnard'' 964AC 1129 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 The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...
and the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
. Appeals from some of the various Supreme Courts within the Commonwealth to the
Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
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.


Chief Justice

The Chief Justice of Papua New Guinea, appointed under Papua New Guinea's Constitution by the
Governor-General of Papua New Guinea The governor-general of Papua New Guinea () is the vice-regal representative of the Papua New Guinean monarch, currently Charles III, in Papua New Guinea. The governor-general is appointed by the monarch after their nomination by the National ...
on behalf of King Charles III in his capacity as King of Papua New Guinea, presides over the Supreme Court and the National Court. The independence of the Bench was tested in 1979 during 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 "autochthon ...
), 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 native-born Chief Justice (1980–1993). At the end of his ten-year term, Kidu was succeeded by Sir
Arnold Amet Sir Arnold Amet is a Papua New Guinean former politician and judge. He was a member of the National Parliament of Papua New Guinea from 2007 to 2012, representing the Madang Provincial seat. He was Minister for Justice and Attorney-General from ...
(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 Sir
Salamo Injia Sir Salamo Injia is a retired Judge and former Chief Justice of Papua New Guinea. Injia was knighted in 2006 and appointed Chief Justice of the Supreme Court of Papua New Guinea in 2008, succeeding Mari Kapi. In 2018, Sir Gibbs Salika replaced ...
. In 2018, Sir Gibbs Salika succeeded Injia in becoming the fifth national Chief Justice of Papua New Guinea.


Judges

the following judges, in order of seniority, comprise the Supreme Court of Papua New Guinea:"Judges", Supreme and National Courts of Papua New Guinea, http://www.pngjudiciary.gov.pg/index.php/about-the-courts/judges 13 April 2020 * * *


References

{{Authority control 1975 establishments in Papua New Guinea
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 ...
Papua Law of Papua New Guinea