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."

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.

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.

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.

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