Law of Papua New Guinea - The "Rooney Affair": An Early Crisis in Relations Between The Executive and Judiciary

The "Rooney Affair": An Early Crisis in Relations Between The Executive and Judiciary

The independence of the judiciary has been a particular problem in developing countries, though it was early confirmed in Papua New Guinea.

Papua New Guinea's Constitution purports to adopt the principle of the separation of powers, enunciated in US jurisprudence in an environment where the three branches of government are indeed separate, the executive not being responsible to the legislature. In PNG as in Australia, the principle is in fact somewhat artificially defined simply to mean that the judiciary is independent from executive interference, as established by the English Bill of Rights, 1689; however, the principle does not extend, as was established in Australia during the early years of the Australian federation, to preventing the courts from rendering advisory opinions to the executive; nor are there any implications with respect to the quasi-judicial function of administrative tribunals, also an issue at one time in Australia (see Separation of powers in Australia).

The principle was quickly tested in Papua New Guinea. In 1979, four years after Independence, the then-Minister of Justice, Mrs Nahau Rooney, wrote a widely-circulated letter critical of what she perceived as a lack of sensitivity by the then entirely expatriate-personnel Supreme Court to a "growing national consciousness": in particular Mrs Rooney was impatient with the purportedly excessively legalistic approach of the Bench to the indigenising of the laws of Papua New Guinea; she was also critical of a Supreme Court Justice's enjoining of a deportation order by the Executive. The then-Chief Justice,, Sir William PRENTICE, called a special sitting of the full bench to condemn the minister for what the court characterised as interference with judicial independence. Mrs Rooney responded by stating that she had "no confidence in the Chief Justice and other Judges....It appears that the foreign judges on the bench are only interested in administration of foreign laws and not the feelings and aspirations of the nation's political leaders." The court then convicted Mrs Rooney of contempt in respect of the initial letter and of scandalising the court in respect of the subsequent comments and sentenced her to eight months in prison. The Prime Minister released her on licence after she had served one day of her sentence and four judges including the Chief Justice promptly resigned, a fifth having previously resigned over a related matter.

The vacancies were, after a period of some uncertainty, filled by the first national justices, the new Chief Justice Buri Kidu, Mr Justice Mari Kapi (who eventually succeeded Kidu CJ), and Acting Justice Bernard Narokobi, together with expatriate justices who had had long experience in Papua New Guinea as trial lawyers or magistrates.

Three considerable ironies emerged in the long term from the Rooney Affair:

(1) The vigorous criticism of the Bench by a member of the executive (or indeed the general public) would certainly not have occasioned so drastic response by the judiciary in other common law jurisdictions such as Canada and the USA which also have a constitutionally-guaranteed right of freedom of expression.

(2) Notwithstanding the immediate departure of the old guard of colonial-era expatriate justices and their replacement by national justices, the Supreme Court did not then undertake any radical new departures by way of indigenising Papua New Guinea jurisprudence and indeed has been notably cautious in undertaking judicial law reform by way of implementing social policy. And

(3) Since the Rooney Affair members of the Executive have been notably timorous in articulating criticism of the Bench, notwithstanding extensive overseas jurisprudence permitting comment on the courts in countries with similar constitutional arrangements whose constitutions include near-identical guarantees of rights and freedoms to those contained in the Constitution of Papua New Guinea.

On the other hand, it must be said that legal commentators in the neighbouring common law countries of Singapore and Malaysia are — to the extent that they are aware of events in Papua New Guinea — somewhat admiring of the extent to which Papua New Guinea's judiciary has maintained its independence as this is unusual in their political environments.

In 2006 the independence of the judiciary was briefly challenged when Sir Arnold Amet, the immediately retired Chief Justice of Papua New Guinea, who was in the process of inaugurating a post-judicial political career, launched a series of articles in the Malaysian-owned newspaper The National in which he politically challenged the deliberations of the court over which he had formerly presided with respect to a capital case which was then sub judice. The newspaper was smartly reminded by the court that such challenge was likely to result in severe sanctions, and Sir Arnold withdrew.