Independence

Afterthoughts

with Percy Chatterton in Port Moresby

Independence of the courts A warning to PNG leaders

The gaoling of Mrs Nahau Rooney, Papua New Guinea’s minister for justice, for contempt of court, has hit headlines around the world. The sentence of eight months imposed on her by the supreme court was sensational. But her release on licence after less than 24 hours in gaol by Prime Minister Somare, who had in the meantime taken over the justice port folio, was even more sensational. It sparked off a nation-wide public reaction which was in the main hostile; and though it was understandable enough in human terms, it seems to have lost Mrs Rooney a lot of the sympathy that the sentence evoked, and to have detracted from rather than enhanced Mr Somare’s stature as a national leader. It has also led to the resignation of five of the eight judges of the national and su preme courts.

Mrs Rooney’s release on licence is of course revocable, but at the moment it seems likely that the governor-general will be advised by cabinet to grant her a pardon, so that she won’t have to go back to gaol at all.

I do not want to dwell any further on this unhappy story.

But I do want to comment on some issues which arise from it.

It has been suggested that the judges have a duty to be sensi tive to the feelings and aspirations of the people. This seems to me to be a dangerous misunderstanding of the functions of the judiciary. The judges are there to uphold the constitution

as it is and to interpret the laws made under it as they are.

If the constitution and the laws made under it do not reflect the feelings and aspirations of the people, it is the business of parliament in general, cabinet in particular and most specifi cally the successive incumbents of the justice ministry, and not that of the judiciary, to see that they are changed. We have a first-rate law reform commission, but the recommendations it makes seem to take a long time to get on to the statute book.

The case which started all this bother was a case in point.

It concerned an expatriate academic who had been served with a deportation order. He appealed to the supreme court. Some of our leaders, including Mrs Rooney, felt very strongly that the deportation of unwanted foreigners is a matter in which the government should have the last say. Maybe they are right (though personally I don’t think they are); and maybe in due course the constitution will be amended in deference to their wishes. But in the meantime the judges have a clear duty to ensure that a deportee is able to exercise his constitutional right of appeal, and to exercise it effectively by being allowed to stay in the country until the appeal is heard. This they did, as they were bound to do. In the sequel the appeal was dismis sed, and the gentleman concerned left the country, so it was all very much a storm in a teacup.

The judges have been described as foreigners administering foreign laws. True, they are foreigners, but those who don’t like this need to be reminded that so far those Papua New Guinean lawyers who are eligible under the constitution for appointment as judges have shown a marked unwillingness to accept such appointment. After this incident they will prob ably be even more reluctant to do so.

As to the laws which the judges administer, they are the laws of the Independent State of Papua New Guinea, as enacted or adopted by its parliament. Many of them, it is true, are ‘imported’ laws, which maybe need more adaptation to Papua New Guinean conditions than has so far been effected.

But, once again, it is the job of parliament, not of the judges, to change them. One hopes that in doing so it won’t throw out the baby with the bath water. It is easy for enthusiasts for ‘the Melanesian Way’ to forget that an increasing number of Papua New Guineans are adopting a non-Melanesian life style with which traditional tribal law is quite unable to cope.

Luckily, we have a very level-headed law reform com mission.

It is much to be regretted that racist overtones have been allowed to emerge in this confrontation between the executive and the judiciary. It is true that the judges are expatriates; but a large and increasing proportion of the magistrates are Papua New Guineans. These would be more vulnerable than the judges to any attempt to make inroads upon the indepen dence of the courts, since they would be subjected to pressures not only from national politicians but from the growing horde

of provincial politicians too.

The most encouraging feature of this unhappy incident is the evidence that it has thrown up that a very large number of citizens of this country understand and value the indepen dence of the country’s courts, and are all set to raise hell if it is interfered with.

Our leaders assure us that they had, and have, no intention of doing so. If so, that’s fine. If not, they have been warned.