The Judiciary and the Emerging Principle of "interest & spirit of the Constitution"



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The Judiciary and the Emerging Principle of "interest & spirit of the Constitution"

Professor R. W. James*
It is a pleasure to be invited back in PNG after an absence of 7 years, and an honour to be here on this auspicious occasion. My delight increases when I recall that I was the Dean of the Faculty in 1993 when Sir Arnold Amet was appointed Chief Justice and, shortly after that occasion, I had the good fortune of petitioning the Senate of the University of Papua New Guinea and successfully arguing the case for the award of his LL.D degree. I am reminded by the organizers of this conference that, on that occasion, I attempted to distill from his judgments (for he was hitherto a judge for 10 years) his philosophy. I hope it was in a judicious manner that I anticipated developments in the legal system by using his philosophical outlook as a guide. I entertained no thought that these could be used as a benchmark of his success as Chief Justice1. Be it as it may, the major themes which form the focus of discussions2 suggest two days of debates that will be both analytical and thought-provoking.
Being outside the mainstream of academia, local and international, after retirement, I am now in unfamiliar territory particularly, as you know, that law has the capacity to grow and under Sir Arnold’s leadership, the growth has no doubt been by leaps and bounds. In the circumstances I am grateful to the organizers for their dispensation and their accord to me of the privilege to be general in my presentation rather than particular, comparative, rather than local, and to adopt the technique of cross-fertilization and the sharing of ideas. A process which I hope will prove mutually beneficial.
I set out to examine issues concerning the functioning of the judiciary. These preoccupy our two regions, the Caribbean and the Pacific. Specifically I make comparison between Papua New Guinea and Guyana in their treatment of these issues showing clearly a bias for PNG law. The reasons for this will become apparent as I make my presentation. The topics I have selected for discussion are limited. Namely, judicial integrity and judicial activism. The underlying theme is the principle of constitutionalism, and the major premise is that the judiciary has an important role to play in its realization.
In resolving these issues, I sought guidance from the Papua New Guinea experience. In the case of judicial integrity, from the judgment in Nahau Rooney’s case.3 On that of judicial creativity, I examined, inter alia, the role of the courts to protect the democratic processes (e.g. governmental succession). Sir Arnold’s judgment in Wingti’s case4 being the best example of the adaptation of law to the crises of our political process.
One can, however, only appreciate the deficiencies of the Guyanese legal system if one is conversant with the fundamentals of the constitutional social and political history of the society. I will address these initial concerns using Professor McIntosh’s concept of "patriating the constitution" a concept he discussed in his recent publication: Caribbean Constitutional Reform. Rethinking the West Indian Polity5.


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