Buri Kidu
Encyclopedia
Sir Buri Kidu Kt
(8 August 1945 – 30 January 1994) was the first national Chief Justice of Papua New Guinea
.
, Toowoomba, Queensland
, Australia
, where he was School Captain
and at the University of Queensland
, St Lucia, Queensland
(LLB, 1970). His entire professional life was spent in Papua New Guinea. He was a Legal Officer in the Department of Law (1971–72), Acting Crown Prosecutor and Crown Prosecutor (1972), Senior Legal Officer (1972–74), Acting Crown Solicitor and Crown Solicitor (State Solicitor after Papua New Guinea Independence, 16 September 1975) (1974–76), Acting Secretary of Justice (1977), Secretary of Justice and Principal Legal Officer to the National Executive Council (Cabinet) (1978–79), Secretary, Prime Minister’s Department (1979–80) and Chief Justice of Papua New Guinea (1980–93).
He was appointed a Knight Bachelor (Kt) in 1980.
).
During his term as Chief Justice Sir Buri secured independent financing of the judiciary, with a separate appropriation bill, so that its budget was not in the control of the Justice Minister from time to time. Indeed, during Sir Buri’s ten-year (plus three years) term of office as Chief Justice the superior courts of Papua New Guinea rigorously maintained an independent role for the courts vis-à-vis the executive and the legislature — a position which Lady Kidu
(now Dame Carol Kidu) feels was vital in the decision of the Wingti
Government to oust him as Chief Justice in 1993 when his statutory ten-year term had elapsed.
Government (when he was two years short of the age qualification to receive a pension, leaving him without an income). Sir Buri was not advised that he was to be replaced, a default which had become standard practice in the Papua New Guinea public service but which Sir Buri had laboured to ensure would not be the case in the National Judicial Staff Services — Sir Buri had sought to keep the NJSS free of political influence — and he was left to infer it from the news that a new Chief Justice other than himself had been appointed.
It has been alleged that Sir Buri — who had come to office in the midst of a crisis as to the independence of the judiciary — was perceived as demanding more independence for the judiciary vis-à-vis the executive than the Wingti Government would have preferred, and that this was the reason his term as Chief Justice was not extended, at least to the point where he would have qualified for a pension. He died four months later of a heart attack. His widow, Lady Buri Kidu (now Dame Carol Kidu), now herself a political person of some note in Papua New Guinea, has suggested that political motivations during the premiership of Paias Wingti
, then in office, as to the independence of the judiciary were brought to bear on Sir Buri's ouster as Chief Justice, and such matters bore considerably on her own decision to enter politics.
With the Rooney Affair (see Law of Papua New Guinea
) it became obvious that a watershed had been reached: would the judiciary now toe a political line, as in many other developing countries, or would it continue to be forthrightly independent of political interference?
In fact the Supreme and National Courts of PNG under Sir Buri Kidu stoutly maintained a firm adherence to judicial precedent as mandated by the Constitution, even to the extent of adhering to pre-1975 English precedent when Australian and other non-English common law jurisdictions had departed from such precedent (see Supreme Court of Papua New Guinea
).
it was a matter of some concern what direction the law of Papua New Guinea would take. Sir Buri quickly established that the mandate of the Constitution would stand and that even when its provisions as to the pre-1975 decisions of English courts might be out of keeping with arguably more sensible jurisprudence of jurisdictions of persuasive authority, such decisions must stand because that was what the Constitution mandated (see Supreme Court of Papua New Guinea
).
Sir Buri quickly established that notwithstanding any implications of the Rooney Affair as to relations between the Executive and the Judiciary, the judiciary was wholly independent: Indeed, the hierarchy of case law precedent is that while the Supreme Court has authority to overrule any case authority, its own decisions are binding on the lower courts as are the decisions of the English superior courts prior to PNG's independence, which are deemed to be part of PNG's underlying law. The decisions of the pre-Independence Supreme Court of PNG are deemed to be foreign law, equivalent in authority to decisions by any foreign court with a similar legal system, and of persuasive value only.
The principle of the mere persuasiveness of other-than-English overseas (and pre-Independence PNG) authority vis-à-vis the binding authority of pre-1975 English authority has been compellingly reasserted in, for example, Toglai Apa and Bomai Siune v. The State [1995] PNGLR 43 that it is bound to follow the English case of Rookes v Barnard (House of Lords) [1964] AC 1129; [1964] 1 All ER 367 notwithstanding its having been comprehensively disapproved in both Australia and Canada soon after it was decided.
of Brisbane
, Australia
, whom he had met at a fitness camp when they were high school students, he at Toowoomba Grammar School
and she at Sandgate High School. They had six children. Sir Buri died of a massive heart attack on 30 January 1994, at the age of 48, five months after the elapse of his term of office as Chief Justice.
Lady Kidu entered Parliament in 1997 as Member for Moresby South and became Minister of Community Development. Lady Kidu was made a Dame Commander of the Order of the British Empire
in 2005 and is now Dame Carol Kidu.
Knight Bachelor
The rank of Knight Bachelor is a part of the British honours system. It is the most basic rank of a man who has been knighted by the monarch but not as a member of one of the organised Orders of Chivalry...
(8 August 1945 – 30 January 1994) was the first national Chief Justice of Papua New Guinea
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 and the overseas appellate tribunals from 1902 to 1975 of the High Court of Australia and the Judicial Committee of the Privy Council...
.
Biography
Buri Kidu was educated at Toowoomba Grammar SchoolToowoomba Grammar School
Toowoomba Grammar School is an independent, non-denominational, day and boarding grammar school for boys, in Toowoomba, Queensland, Australia....
, Toowoomba, Queensland
Toowoomba, Queensland
Toowoomba is a city in Southern Queensland, Australia. It is located west of Queensland's capital city, Brisbane. With an estimated district population of 128,600, Toowoomba is Australia's second largest inland city and its largest non-capital inland city...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, where he was School Captain
School Captain
School Captain is a student appointed or elected to represent the school.This student, usually in the senior year, in their final year of attending that school...
and at the University of Queensland
University of Queensland
The University of Queensland, also known as UQ, is a public university located in state of Queensland, Australia. Founded in 1909, it is the oldest and largest university in Queensland and the fifth oldest in the nation...
, St Lucia, Queensland
St Lucia, Queensland
St Lucia is an inner suburb of Brisbane, Australia located 4 km south-west of the Brisbane CBD. The suburb is bordered on three sides by the Brisbane River and is dominated by the main campus of the University of Queensland.-History:...
(LLB, 1970). His entire professional life was spent in Papua New Guinea. He was a Legal Officer in the Department of Law (1971–72), Acting Crown Prosecutor and Crown Prosecutor (1972), Senior Legal Officer (1972–74), Acting Crown Solicitor and Crown Solicitor (State Solicitor after Papua New Guinea Independence, 16 September 1975) (1974–76), Acting Secretary of Justice (1977), Secretary of Justice and Principal Legal Officer to the National Executive Council (Cabinet) (1978–79), Secretary, Prime Minister’s Department (1979–80) and Chief Justice of Papua New Guinea (1980–93).
He was appointed a Knight Bachelor (Kt) in 1980.
Appointment and term as Chief Justice
Sir Buri was appointed Chief Justice in 1980 by the Government of Prime Minister Sir Julius Chan, who took office after the Government of Prime Minister Michael Somare had been defeated in a no-confidence motion in Parliament following the Rooney Affair, an early crisis of judicial independence during which the first Chief Justice, Sir Sydney Frost, an Australian, and three expatriate puisne justices resigned (see Law of Papua New GuineaLaw of Papua New Guinea
The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at Independence from overseas and judge-made law.-Constitution:...
).
During his term as Chief Justice Sir Buri secured independent financing of the judiciary, with a separate appropriation bill, so that its budget was not in the control of the Justice Minister from time to time. Indeed, during Sir Buri’s ten-year (plus three years) term of office as Chief Justice the superior courts of Papua New Guinea rigorously maintained an independent role for the courts vis-à-vis the executive and the legislature — a position which Lady Kidu
Carol Kidu
Dame Carol Kidu, Lady Kidu, DBE is an Australian-born Papua New Guinean politician. She is the only current female member of Parliament, and served as Minister for Community Development under Prime Minister Sir Michael Somare from 2002 to 2011...
(now Dame Carol Kidu) feels was vital in the decision of the Wingti
Paias Wingti
Paias Wingti is a Papua New Guinean political figure. He served as the third Prime Minister of Papua New Guinea between 1985 and 1988, and again from 1992 to 1994.Wingti is a member of the Jika Tribe of the Western Highlands province...
Government to oust him as Chief Justice in 1993 when his statutory ten-year term had elapsed.
Termination of appointment
In August 1993 Sir Buri's term of office, which had by that point extended three years beyond the statutory ten years, was not renewed by the WingtiPaias Wingti
Paias Wingti is a Papua New Guinean political figure. He served as the third Prime Minister of Papua New Guinea between 1985 and 1988, and again from 1992 to 1994.Wingti is a member of the Jika Tribe of the Western Highlands province...
Government (when he was two years short of the age qualification to receive a pension, leaving him without an income). Sir Buri was not advised that he was to be replaced, a default which had become standard practice in the Papua New Guinea public service but which Sir Buri had laboured to ensure would not be the case in the National Judicial Staff Services — Sir Buri had sought to keep the NJSS free of political influence — and he was left to infer it from the news that a new Chief Justice other than himself had been appointed.
It has been alleged that Sir Buri — who had come to office in the midst of a crisis as to the independence of the judiciary — was perceived as demanding more independence for the judiciary vis-à-vis the executive than the Wingti Government would have preferred, and that this was the reason his term as Chief Justice was not extended, at least to the point where he would have qualified for a pension. He died four months later of a heart attack. His widow, Lady Buri Kidu (now Dame Carol Kidu), now herself a political person of some note in Papua New Guinea, has suggested that political motivations during the premiership of Paias Wingti
Paias Wingti
Paias Wingti is a Papua New Guinean political figure. He served as the third Prime Minister of Papua New Guinea between 1985 and 1988, and again from 1992 to 1994.Wingti is a member of the Jika Tribe of the Western Highlands province...
, then in office, as to the independence of the judiciary were brought to bear on Sir Buri's ouster as Chief Justice, and such matters bore considerably on her own decision to enter politics.
Independence of the judiciary
The Constitution of Papua New Guinea left the judiciary of PNG in a somewhat anomalous position, deeming as it did the case law of the English superior courts as of the date of PNG Independence to be part of the "underlying law" of Papua New Guinea (i.e. the indigenous common law) whereas the decisions of the pre-Independence Supreme Court of Papua New Guinea were to be foreign law, on an equal footing as to persuasiveness with the decisions of other superior courts in countries having similar legal systems — most obviously Australia, but also New Zealand and Canada, as well as post-1975 England. This left the post-Independence PNG courts with somewhat a clean slate, though given that the immediately post-Independence Supreme and National Court personnel were the same as those who had occupied the Bench immediately prior to Independence, it was not immediately apparent that this was a conundrum.With the Rooney Affair (see Law of Papua New Guinea
Law of Papua New Guinea
The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at Independence from overseas and judge-made law.-Constitution:...
) it became obvious that a watershed had been reached: would the judiciary now toe a political line, as in many other developing countries, or would it continue to be forthrightly independent of political interference?
In fact the Supreme and National Courts of PNG under Sir Buri Kidu stoutly maintained a firm adherence to judicial precedent as mandated by the Constitution, even to the extent of adhering to pre-1975 English precedent when Australian and other non-English common law jurisdictions had departed from such precedent (see Supreme Court of Papua New Guinea
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 and the overseas appellate tribunals from 1902 to 1975 of the High Court of Australia and the Judicial Committee of the Privy Council...
).
Hierarchy of precedent
After the Rooney AffairLaw of Papua New Guinea
The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at Independence from overseas and judge-made law.-Constitution:...
it was a matter of some concern what direction the law of Papua New Guinea would take. Sir Buri quickly established that the mandate of the Constitution would stand and that even when its provisions as to the pre-1975 decisions of English courts might be out of keeping with arguably more sensible jurisprudence of jurisdictions of persuasive authority, such decisions must stand because that was what the Constitution mandated (see Supreme Court of Papua New Guinea
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 and the overseas appellate tribunals from 1902 to 1975 of the High Court of Australia and the Judicial Committee of the Privy Council...
).
Sir Buri quickly established that notwithstanding any implications of the Rooney Affair as to relations between the Executive and the Judiciary, the judiciary was wholly independent: Indeed, the hierarchy of case law precedent is that while the Supreme Court has authority to overrule any case authority, its own decisions are binding on the lower courts as are the decisions of the English superior courts prior to PNG's independence, which are deemed to be part of PNG's underlying law. The decisions of the pre-Independence Supreme Court of PNG are deemed to be foreign law, equivalent in authority to decisions by any foreign court with a similar legal system, and of persuasive value only.
The principle of the mere persuasiveness of other-than-English overseas (and pre-Independence PNG) authority vis-à-vis the binding authority of pre-1975 English authority has been compellingly reasserted in, for example, Toglai Apa and Bomai Siune v. The State [1995] PNGLR 43 that it is bound to follow the English case of Rookes v Barnard (House of Lords) [1964] AC 1129; [1964] 1 All ER 367 notwithstanding its having been comprehensively disapproved in both Australia and Canada soon after it was decided.
Personal life
In 1969 Sir Buri married Carol MillwaterCarol Kidu
Dame Carol Kidu, Lady Kidu, DBE is an Australian-born Papua New Guinean politician. She is the only current female member of Parliament, and served as Minister for Community Development under Prime Minister Sir Michael Somare from 2002 to 2011...
of Brisbane
Brisbane
Brisbane is the capital and most populous city in the Australian state of Queensland and the third most populous city in Australia. Brisbane's metropolitan area has a population of over 2 million, and the South East Queensland urban conurbation, centred around Brisbane, encompasses a population of...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, whom he had met at a fitness camp when they were high school students, he at Toowoomba Grammar School
Toowoomba Grammar School
Toowoomba Grammar School is an independent, non-denominational, day and boarding grammar school for boys, in Toowoomba, Queensland, Australia....
and she at Sandgate High School. They had six children. Sir Buri died of a massive heart attack on 30 January 1994, at the age of 48, five months after the elapse of his term of office as Chief Justice.
Lady Kidu entered Parliament in 1997 as Member for Moresby South and became Minister of Community Development. Lady Kidu was made a Dame Commander of the Order of the British Empire
Order of the British Empire
The Most Excellent Order of the British Empire is an order of chivalry established on 4 June 1917 by George V of the United Kingdom. The Order comprises five classes in civil and military divisions...
in 2005 and is now Dame Carol Kidu.