Status of Customary Law Within Papua New Guinea's Legal System

Updated on February 6, 2018
Mek Kamongmenan profile image

I, Mek H. Kamongmenan, an Associate Law Lecturer at the School of Law, University of Papua New Guinea and a Lawyer- Kaipu & Asso,.Lawyers.

Customary Law Is Alive in Papua New Guinea

Introduction

Custom or Customary law is the rules and practices that govern the native people of a society in their way of life and their roles and responsibilities towards each other in their society. Custom regulates and maintains social order within a society even to the extent of governing the lives of people outside their societies, in towns and cities. Custom is defined by the constitution as “the usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial[1]”. The same definition is found in the Interpretation Act and the Underlying Law Act[2].

Papua New Guinea is made up of a very diverse society in terms of its cultural practices and customs. There are more than 800 hundred different languages and more than a thousand different customs found in different areas of Papua New Guinea. Each area in PNG has its own customary laws that govern its people in their way of life and ensures the wellbeing of the entire community.

When the Europeans first arrived on the shores of PNG, they came with a notion of ethnocentricity. They saw that there was no established rule of law and no legal system in PNG to govern the people, and so they assumed that the people were primitives and lived without order. However, after some time the early colonizers realized that despite the fact that there was no established legal system, different places have their own rules and practices that guide them, and this rules and practices are known as customs.

When the Australians were given the mandate to administer the territory of Papua New Guinea, they put an effort into recognizing the existence of this system of law that existed before their arrival. This made way for the establishment of the Laws Repeal and Adopting Ordinance 1921 and the Native Administration Regulation 1924 in the territory of New Guinea, which provided for the continuation of tribal institutions, customs and usages, and their recognition in the Courts of Native Affair.

This was the beginning of when the status of custom gradually began to be recognized as a source of law and over time through other developments made way into being part of the legal system PNG.

1. Dual system of law in PNG

Papua New Guinea currently has a system of law that is often referred to as a dual system of law. We say that to mean that PNG has a dual court system made up of a formal court system and a customary court system, which is recognized and established by the government, because many villages in PNG still maintain traditional dispute-management agencies[3], which do not have the backing of the state. The formal courts are the courts established under the National Judicial[4] system of Papua New Guinea, and include those courts established under s172[5] of the constitution. The customary courts on the other hand are, traditional agencies, which the people in the village normally resort to, time and time again, when people have disputes that they believe, can be better resolved in these traditional forums rather than the formal courts.

The dual system of law is not applicable in all sections of law, however; generally it applies in two broad areas, marriage and landownership. In PNG marriage can be made by custom or by civil or church ceremonies. In a civil or church ceremony, there is a written document that is signed by both parties to indicate that both parties have entered into the contract of marriage, on the other hand, in customary law, marriage does not need any written documents, but instead verbal or oral contract between the two partners witnessed by the local community or in accordance with the custom of either of the parties. Despite the differences in entering into marriage, both method of entering into a marriage are equal in status.

In terms of the ownership of land, customary land ownership is recognized as legally binding under the provisions of the constitution. Customary land has no title or written document of ownership. This does not interfere with the legal validity of the ownership as long as the ownership is generally recognized within the community or clan. Land owned under statute law does have a written document of ownership called a land title or land deed.

By having a dual system of law, the authors of the constitution hoped that the role of custom within the legal system of the country would gradually increase.

2. PNG’s dream of Indigenous Melanesian Jurisprudence

The dream of an indigenous Melanesian jurisprudence came about when PNG became independent on the 16th of September 1975. This idea is for a new legal philosophy that is based on the diverse custom, culture and traditions of the people of PNG, where, customary law is to be the object of law reform, and as a basis of a legal system. However up till this day the idea still in its embryotic form.

Customary law, as a source of law, that is distinctively different to other sources. Customary law has always operated in the past, as a system of legal regulation in the organization of communal society, and in many ways was independent in the sense that it never needed any formal enforcement agencies such as police, courts, lawyers etc. However, it can be argued that customary law may be subjected to the law making agencies of the state, since it would be made as a source of the legal system of the state. This argument encourages the development of custom through the legal reform process.

Also, the idea to have an indigenous Melanesian jurisprudence that has customary law as the basis of the legal system was driven by the will of Papua new Guineans to eliminate the oppression, exploitation, social inequality and injustice that were brought in by the laws of colonizers and which was imposed by the common law legal system. Hence, it was the main objective of the Law Reform Commission proposal of making an underlying law, to have customary law as the legal basis of PNG’s legal system, and give custom pre-eminence over common law and equity. This has the chance of leading to a point where the laws of PNG would be infused with ethical values and traditional principles of customary law and therefore creating a legal system with custom as its basis.

The idea of Indigenous Melanesian Jurisprudence became more imminent when the constitution of PNG gave customary law importance to the extent of regulating of national affairs and gave the Law Reform commission the constitutional responsibility of developing the underlying law of Papua New Guinea. In addition to that, customary law was made as an important source of the underlying law, and by the development of the underlying law as provided under the Underlying Law Act[6] would lead to an indigenous Melanesian jurisprudence that would adapt to the changing circumstances of the country.

However there were shortcomings that complicated the process. The concept failed to take into account the autonomous characteristic of customary law, and the historical limitation it had that prevented it from avoiding all the obstacles that prevented it from forming the basis of a legal system. As a result, the idea failed to take form immediately, and even up till now, 39 years after independence, the idea of an indigenous Melanesian Jurisprudence is still developing.

3. Position of Customary Law in the Constitution

There are various statutes that were established before PNG gained independence that recognized the existence of customary law, such as the Land Titles Commission Act 1962, The Local Courts Act 1963 and the Marriage Act 1963 etc. However it was especially after PNG became independent when customary law well secured its place within the legal system of the country. This was through its foundation and recognition in the national constitution that came into force on that day along with every other pre independent status[7].

3.1. The 5th National Goals and Directive Principle

The foundation of the entrenchment of customary law within the legal system of Papua New Guinea is spelt out in the preamble of the constitution under goal number 5 of the Five National Goals and Directive Principles. The goal calls for the Papua New Guinea way. It states, WE ACCORDINGLY CALL FOR–

(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and

(2) particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and

(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.

Goal 5 basically calls for custom to play a role and have a place within the lives of Papua New Guineans in the modern society. This is because custom has always been governing the lives of the people; in important aspects such as resolving disputes and participate in ceremonies must be preserved. It is also important to point out that PNG is very diverse in terms traditional customs and practices, however goal 5 calls for the cultural diversity to be seen as a positive strength. Goals 5 acknowledges the fact that custom is an essential part of the lives of the people in PNG and therefore calls that it remain as it is.

3.2. Hierarchy of Laws

The constitution also provides for an exhaustive list of the written laws of the country, in which custom also has a position. This list is provided for under section 9 of the constitution and the laws are listed in the order of their superiority. The laws are listed as, the constitution, the organic laws, the Acts of Parliament, Emergency Regulations, Provincial Laws, Subordinate legislative enactments and adopted laws, the underlying law, and none others.

The list brings with the constitution, as the supreme law and ends with the Underlying law at the very bottom. Custom comes under the Underlying law as one of its sources, as provided for under schedule 2[8] of the constitution.

3.3. Schedule 2

Custom is a valid source of the underlying law; however there are certain conditions that custom is required to meet before being accepted as a source of the underlying law. These conditions are set out under schedule 2.1.1[9] of the constitution and are generally known as the repugnancy test. Subsection (2) of this provision states that custom can be applied as part of the Underlying law unless to the extent of its application it is inconsistent with a constitutional law or a statute or if it is repugnant to the general principles of humanity. This means that not every custom in PNG can be a source of the Underlying law. A custom that does not satisfy the conditions will not be recognized as a source of the underlying law.

The purpose of schedule 2 is provided under s21 of the constitution. Subsection (1) of s21 of the provides that the purpose of schedule 2 is, together with an Act of Parliament set out in s20, to assist in the development of our indigenous jurisprudence that is adapted to the changing circumstances of the country. That is to say that custom is to be used in developing an indigenous jurisprudence of the country.

4. The Underlying Law

To recognize the status of customary law in the legal system of PNG it is relevant to analyze the Underlying law Act 2000. This would help to show that custom is a source of law in PNG and also, how it is given preference over common law in terms of the order of application and development of the underlying law.

The Underlying law is defined under sch.1.2 of the constitution as

a) The underlying law provided by an Act of Parliament under section 20(1) (underlying law and pre-independence status);

b) Until such time there is an Act of Parliament, the underlying law prescribed in schedule 2

S20 of the constitution provides under (1) that:

An Act of Parliament shall-

a) Declare the underlying law of Papua New Guinea; and

b) Provide for the development of the underlying law of Papua New Guinea.

The underlying law is a body of rules and principles developed by the superior courts (the National Court and the Supreme Court) and the law reform commission from custom and the rules and principles of common law and equity of England that existed immediately before 16th September 1975 where there is no rule of law applicable to a matter before the court.

In the year 2000 the parliament enacted a statute called the Underlying law Act 2000 to fulfill the provisions under sch 2.1 and s20 of the constitution. The purpose of this act is to:

a) State the source of the underlying law; and

b) Provide for the formulation of the rules of the underlying law; and

c) Provide for the development of the underlying law;

and for related purposes.

4.1.Sources of the Underlying law

The underlying law has two sources where it derives its principles of law. The sources are declared under s3 of the act as, the customary law and the common law in force in England immediately before 16th September 1975. Sections 4 and 6 provides for the application of customary law and common law as part of the underlying and the order of its application respectively.

Section 4 provides that,

Subject to subsection (2) or (3)[10]

a) The customary law; and

b) The common law,

Shall be adopted as part of the underlying law,

and section 6 provides that,

Subject to this Act, in dealing with the subject matter of a proceeding, the court shall apply the laws in the following order:

a) Written law; and

b) The underlying law; and

c) The customary law; and

d) Common law.

The significance of these two provisions is that, it shows how customary law takes preference over common in terms of the order of its application. According to these two provisions, when a subject matter is brought before the court, and there are no relevant written laws to apply, the court will refer to customary and derive a principle of law from before it resorts to applying a principle of law in common law.

4.2. Conditions of applying Customary law and Common law

However, in order for customary law and common law to apply as valid sources of the underlying law, they are required to meet certain prerequisites stipulated under s4 (2) and (3) of the act. Basically these two subsections provides that, customary law and common law shall apply unless, its application is inconsistent with written laws, its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations, and in the case of common law, if its application is appropriate to the circumstances of the country and, if it is not inconsistent with customary law.

Moreover, a court which refuses to apply a principle of customary law and common law, shall give reasons for its refusal by way of how they failed to meet the conditions set out under s4 (2) and (3).

Its is relevant to point out in the provision that, common law has to be consistent with customary law before it can be applied as part of the underlying law and, if a court applies common law instead of customary law, it has to provide reasons for refusing to apply customary law. Hence, when comparing the status of the two sources of the underlying law, customary law takes precedence over common law. This was also established in the case of SCR No 4 of 1980: Petition of Somare,[11] Milles J (as he then was) stated that “the suggested requirement that a court must positively decide that a custom is inapplicable before it can proceed to consider the common law carries with it the obligation to commence the case with comprehensive inquiry into all possible relevant custom” In other words, custom has to be thoroughly considered before moving on to common law.

4.3. Formulation of the Underlying law

The National Judicial System[12] and the law reform commission have a duty to formulate an appropriate rule as part of the underlying law where it appears in any matter before a court that there is no rule of law applicable and appropriate to the circumstances of the country.

Firstly, the parties to a proceeding have the opportunity to bring evidence of information to the court to assist the court in deciding on whether to apply the customary law, common law or to formulate a rule of the underlying law relevant to the circumstances to resolve the subject matter of a proceeding. However, in the case of common law, the court shall not apply customary law if, it is satisfied that the parties intend that the customary law does not apply to the to the subject matter of the proceedings or, the subject matter of the proceedings is unknown to the customary law and cannot be resolved by analogy to a rule of customary law without causing injustice to one or more parties[13].

Where there are no applicable written law, underlying law, customary law or common law to a subject matter of proceedings. The court shall formulate a rule having regards to,

a) The national goals and directive principles and basic social obligations established by the constitution; and

b) The basic rights guaranteed by Division III.3 (Basic Rights) of the constitution; and

c) Analogies drawn from the relevant written law and customary law; and

d) The laws of a foreign country relevant to the subject matter of the proceeding[14].

The copy of the new law shall be sent to the chief justice and the chairman of the law reform commission and if not disputed either bodies shall apply to the subject matter of the proceedings and become part of the underlying law.

4.4. Application of customary law in a subject matter of a proceeding

The Underlying law Act also gives the parties to a proceeding the opportunity to assist the court in deciding whether to apply a principle or rule of the customary law, a principle or rule of the common law or to formulate a new rule of the underlying law to resolve a subject matter before the court, by providing evidence and information to the court.

Furthermore, it is the duty of the counsel appearing in a proceeding in relation to custom to assist the court by providing evidence and relevant information that would help the court determine the nature of the customary law in point, and whether to apply it to the subject matter of the proceedings.

When determining a question or content of a rule of the customary law, the court shall:

  • consider the submissions made by or on behalf of the parties concerning the customary law relevant to the proceedings,

And also may:

  • refer to other published materials on customary law relevant to the proceedings
  • refer to statements and declaration of customary law by any authority established by statute
  • consider evidence and information concerning the customary law relevant to the proceeding presented to it by a person whom the court is satisfied has knowledge of the customary law relevant to the proceedings; and
  • of its own motion, obtain evidence and information and obtain the opinions of persons as it thinks fit[15].

This would help the court in making independent and impartial decisions on a proceeding in relation to custom.

4.5. Summary of the Underlying Law Act

The Underlying law represents the move that PNG took to give customary law a bigger say within the legal system of PNG. It was shown in a number of provisions within the act that customary law is to be given preference over common law in terms of the order of its application and also in the formulation of the underlying law.

However most importantly, the underling law Act answers a number of questions and confusions that arises when discussing the validity of customary law within the legal system of Papua New Guinea. Such questions as, what test must be satisfied before custom can be adopted as part of the underlying law? Or what is the relationship between common law and customary law as the two sources of the Underlying law? and so fort.

The underlying is truly a remarkable achievement for Papua New Guinea because it gives custom a very important status within the legal system of the country and through its development would lead to creating an indigenous Melanesian Jurisprudence based on customary law.

5. Customs Recognition Act

It is relevant to read the customs recognition act to have a clear understanding of the determination of Statute that towards the recognition of customary law and how customary law is applied in criminal cases and how it is applied in civil cases.

5.1. Recognition of custom

The Act provides that custom may be recognized and enforced by, and may be pleaded in, all courts except in a particular case or in a particular context:

(a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(b) in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.

5.2. Criminal cases

The Act also provides that custom may be taken into account in a criminal case only for the purpose of:

(a) ascertaining the existence or otherwise of a state of mind of a person; or
(b) deciding the reasonableness or otherwise of an act, default or omission by a person; or
(c) deciding the reasonableness or otherwise of an excuse; or
(d) deciding, in accordance with any other law whether to proceed to the conviction of a guilty party; or
(e) determining the penalty (if any) to be imposed on a guilty party,

or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

5.3. Civil cases

The Act provides that custom may be taken into account in civil cases only in relation to:

(a) the ownership by custom of or of rights in, over or in connection with customary land or–

(i) any thing in or on customary land; or
(ii) the produce of, customary land,

including rights of hunting or gathering; or

(b) the ownership by custom of rights in, over or in connection with the sea or a reef, or in or on the bed of the sea or of a river or lake, including rights of fishing; or
(c) the ownership by custom of water, or of rights in, over or to water; or
(d) the devolution of customary land or of rights in, over or in connection with customary land, whether–

(i) on the death or on the birth of a person; or
(ii) on the happening of a certain event; or

(e) trespass by animals; or
(f) marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connection with a marriage entered into in accordance with custom; or
(g) a transaction that–

(i) the parties intended should be; or
(ii) justice requires should be,

regulated wholly or partly by custom and not by law; or

(h) the reasonableness or otherwise of an act, default or omission by a person; or
(i) the existence of a state of mind of a person,

or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

5.4. Conflict of custom

The act also answers a very important question that is often raised when studying the application of customary law in proceedings before the court. And that is, what would the court do in a case where there is a conflict in custom?

The act states:

(a) in a matter before a court a question arises as to which of two or more systems of custom should prevail; and
(b) the court is not satisfied on the evidence before it as to that question,

the court shall consider all the circumstances and may adopt the system that it is satisfied the justice of the case requires.

(2) Where a court is not satisfied as to which of two or more systems of custom apply, or should under Subsection (1) be applied, to or in relation to a matter, the court may apply, with the necessary modifications and as nearly as may be, the ordinary rules of the underlying law.

(3) Notwithstanding Subsection (1) or (2), the principles set out in those subsections may be varied or departed from by a court in any particular case to such extent as the justice of the case requires.

7. Conclusion

Custom is given a very important role within the legal system of Papua New Guinea as seen by its establishment in the constitution, its recognition by various statute and by the role it plays in the underlying law. However it still has not fully achieved what our forefathers had intended for it when formulating the constitution, and that is for custom to be the basis of our legal system. After 39 years of independence we still have not made any realistic headway in the development of the underlying law despite the constitutional directive[16].

It is ironic that indigenous lawyers have mastered both the legal knowledge and the legal technology of the adopted laws but not of our own indigenous laws, or attempted to develop them. Also, lawyers and judges do not have adequate professional training and experience in our customary law to organize and develop it. It is the duty of the whole legal profession in Papua New Guinea to work as one group to clarify the ideological commitment to customary law. The future generation will judge us according to our ability to identify to crucial customary law problems in our time and our capacity to resolve these problems, so as to render customary law an ideal and useful system of law.

I conclude by saying it is important for us to preserve our customary law and use it as the basis of our legal system because the majority of our people still leave and are governed by custom and most importantly because this social and cultural traditions have given each of us, and all of us, collectively as Papua New Guineans, our identity.

Bibliography

  • Constitution of Papua New Guinea
  • Customs at a Crossroad in Papua New Guinea, (ed) Jonathan aleck and Jackson Ranells
  • Custom Recognition Act
  • Laws Adoption and Adaptation Act Ch 20


  • The Underlying Law Act 2000
  • The Final Report of the Constitutional Planning Committee 1974

By: Mek Hepela Kamongmenan LLB, Lawyer, Associate Lecturer of school of Law, University of Papua New Guinea. {dated 05th February, 2018].


[1] Sch. 1.2 of the National Constitution

[2] 2000

[3] Customs at the Crossroads in Papua New Guinea, Pg. 180-181 (Papua New Guinea’s Plural Court System

[4] The National Judicial System is established under s155 of the constitution and consists of, the Supreme Court, the National Court and other courts established under s172.

[5] Establishment of other courts (for example the children’s court, the Coroners Court etc.)

[6] 2000

[7] See also Sch.2.6 and the Laws Adoption and Adaptation Act Ch 20

[8] Schedule 2 – adoption, etc., of certain laws

[9] Recognition, etc., of custom

[10]Subsection (2) and subsection (3) of s4 of the Underlying law Act provides for the conditions that customary law and common law must meet in order to be sources of the underlying law.

[11] [1981] PNGLR 265

[12] S155 of the Constitution provides, the national Judicial system consists of, the Supreme Court, the National Court and other courts established under s172 (establishment of other courts)

[13] Underlying Law Act 2000 S7 (2) (a) and (b), however, pursuant to (6) the court may apply customary law if it is satisfied that the parties intend to avoid customary law for unjust purposes.

[14] Pursuant to S7 (5) of the Underlying law Act 2000

[15] S16 (2) of the Underlying Law Act

[16] Customs at a Crossroad in Papua New Guinea, (ed) Jonathan aleck and Jackson Ranells, Pg 34-42

Comments

    0 of 8192 characters used
    Post Comment

    • profile image

      Mek Kamongmenan 9 days ago

      Thank you Chris Mills for the inspiring comments and also mentioned on visiting my country some 40 years ago.

    • cam8510 profile image

      Chris Mills 9 days ago from Missoula, Montana at least until March 2018

      You have handled this topic in a scholarly and interesting way. Possibly it is easier for me than most Americans to understand the monumental and worthwhile task that faces the legal system in your country. I visited for three months in 1983, just eight years following independence. I still have the photos I took and the items I purchased to remember my visit. That was most certainly a high point of my life.

      I appreciate how you have laid this article out with subheadings that keep the reader on track with your thinking on the subject. It is a lengthy read, but I highly recommend it.

    working