Reconceptualising the Role of the Judiciary in Papua New Guinea's 'Home-grown' Constitution

Abstract

Tension often underpins the constitutional relationship between the Papua New Guinea judiciary and the other two arms of government, the executive and the parliament. This was aptly demonstrated in two cases that led to two constitutional crises - Rooney 1979 and East Sepik Province (ESP) 2011. In Rooney, direct interferences by the executive on judicial functions resulted in mass resignation of Supreme Court judges, while the ESP case saw Papua New Guinea having two prime ministerial claimants for seven months and the executive sanctioning the arrest of Chief Justice Sir Salamo Injia on charges of sedition. The judiciary responded that they were at 'war' with the executive.

These tensions demand a reassessment of the role of the judiciary and how the parliament and the executive in Papua New Guinea understand it. The two arms of government understand the role of the judiciary within the narrow lenses of the traditional separation of powers doctrine. The judiciary is thus expected to have a restrictive role. This thesis disagrees. It contends that after more than 90 years of German, British and Australian colonisation, the framers of the Constitution, the Constitutional Planning Committee (CPC), undertook an unparalleled and exhaustive consultative process to establish an autochthonous or 'home-grown' Constitution in which the role of the judiciary is liberal and expansive.

It argues that unlike others countries in the Pacific region, including Australia, the Papua New Guinea Constitution was not enacted externally or influenced by a colonial power in its drafting. The 'home-grown' Constitution affords the judiciary with an unusually liberal and broad set of powers for courts to rectify the wrongs of colonialism, assist the country's development and respond to the contemporary challenges and inequalities. It argues that these powers are necessary in the context of Papua New Guinea. The thesis identifies twelve textual indicators in the Constitution that entrench the highly liberal role of the judiciary. Tension, therefore, results from a failure of the executive and the parliament to appreciate the liberal functions of the judiciary.

The thesis further contends that amidst the demise of democratic and accountability institutions, the Papua New Guinea Constitution intends for the judiciary to be involved, at times, directly in instigating social and political reform. It thus extends the traditional understanding of the judiciary as the guardian of the Constitution to assert that the judiciary be reconsidered as the guardian of Papua New Guinea's democracy.

The thesis draws from the constitutions of South Africa, Kenya, India and Brazil to argue for a reimagining of the Papua New Guinea Constitution as a 'transformative constitution' where the judiciary plays an active role in the construction of the society. It holds that Anglo-Australian conception of constitutionalism is contrary to the CPC's intention and is stultifying of the judiciary's transformative functions. While judicial restraint remains a cardinal principle for the judiciary, the thesis cautions judges against uncritical adherence that risks restricting or abdicating their constitutionally mandated role to administer the transformative intents of the Constitution.

The thesis thus calls for a reconceptualisation of the role of the judiciary and the doctrine of separation of powers in Papua New Guinea. It has been researched and written in the hope that such an exercise will stimulate further inquiry into the value of the Papua New Guinea judiciary, the efficacy of the tripartite model of government and the Constitution as a document of socio-political reform and not of colonial continuity.