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The Underlying Law Journal: Developments in the Underlying Law of Papua New Guinea
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Jessep, Owen --- The Underlying Law of Papua New Guinea (2012) 1 The Underlying Law Journal Developments in the Underlying Law of Papua New Guinea 25 [2012] PGULJ 4 (4 May 2012)

The Underlying Law of Papua New Guinea


by
Owen Jessep[*]


INTRODUCTION


One of the expressed hopes of the planners of the PNG Constitution was for the development of an underlying law based on an “indigenous jurisprudence” (the expression used in s 21(1) of the Constitution), that is, reflecting principles of custom (and some principles of common law where necessary and appropriate), as shaped to fit the changing circumstances of the newly independent country. By s 20 of the Constitution, until an Act of the Parliament otherwise declared and provided for its development, the underlying law and the manner of its development were to be as prescribed by the detailed provisions of Schedule 2.


For a range of reasons, however, the underlying law did not develop as originally anticipated. Almost 20 years later, Amet CJ was able to say that the idea of an indigenous jurisprudence had become simply “meaningless rhetoric or cliche”.[1] The reality was that the law in PNG had not been allowed to break free of its colonial constraints – custom had in fact received only marginal attention in the development of the underlying law, and instead the judges and legal profession in PNG remained overly dependent upon the principles and doctrines of Anglo-Australian common law and equity.


A number of explanations for this state of affairs have variously referred to the attitudes of expatriate lawyers and judges towards PNG custom, the failure of Parliament to pass supporting legislation, the content and limitations of legal education given to PNG lawyers, technical problems of proving the existence of custom and the lack of any consistent judicial methodology in this context.[2] Beyond this, however, I have previously suggested that the terms of Sch 2 of the Constitution itself, and the manner of its judicial interpretation, have presented additional stumbling blocks to the development of the underlying law which may not have been anticipated by the planners and drafters of the Constitution. In the first place, analysis of several leading National and Supreme Court decisions reveal a significant number of confusions and ambiguities in the interpretation of the Schedule, which are central rather than merely peripheral to the operation of the statutory scheme. Secondly, it is arguable that the very notion of the underlying law as outlined in Sch 2 is essentially incoherent, and a proper matter for legislative reform.[3]


In this brief account, it is intended to outline some of the major sources of legal controversy concerning the respective roles of custom and the common law as ingredients of the underlying law in PNG. Although Parliament several years ago introduced the Underlying Law Act 2000 (as “an Act to implement s 20 of the Constitution”, according to the Preamble), it is notable that the new Act, although in force since 8 August 2000, has to date received virtually no judicial attention. For this reason, as well as the fact that some of the major difficulties of interpretation and conceptualisation of the underlying law are likely to continue notwithstanding the terms of the new legislation, the main part of this paper will focus on the legal analysis of Sch 2 of the Constitution, leaving until the final section the question of what changes are likely to follow the judicial application of the statute of 2000. For the same reason, it will be convenient in this account to retain the use of the present tense in analysing the terms of Sch 2 and the relevant case law.


CONSTITUTIONAL AND STATUTORY PROVISIONS


By s 9 of the Constitution, the laws of Papua New Guinea consist of the Constitution and Organic Laws, Acts of the Parliament and Emergency Regulations, provincial laws, laws made or adopted by or under the Constitution or any of the above laws, and the underlying law. As noted, in the absence of any Act of the Parliament to implement s 20 of the Constitution, the underlying law and the manner of its development were to be as prescribed by Sch 2 of the Constitution.


In Sch 1.2, the term “custom” is defined to mean:


“the customs and 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.”


The wording of Sch 2.1 and 2.2(1) is sufficiently important to set out in detail:


“Sch 2.1. Recognition, etc., of custom.


(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.


(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.


(3) An Act of the Parliament may –


(a) provide for the proof and pleading of custom for any purpose; and

(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and

(c) provide for the resolution of conflicts of custom.


Sch.2.2. Adoption of a common law.


(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that –


(a) they are inconsistent with a Constitutional Law or a statute; or

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1. ...


(3) The principles and rules of common law and equity are adopted as provided by Subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch.2.6 (adoption of pre-Independence laws).”


Schedule 2.3(1) states that where “there appears to be no rule of law that is applicable and appropriate to the circumstances of the country”, the courts (and in particular the Supreme Court and the National Court) have a duty to formulate an appropriate rule as part of the underlying law. In doing so, the court is to have regard to the National Goals and Directive Principles and Basic Social Obligations set out in the Preamble to the Constitution, the Basic Rights in the Constitution, analogies to be drawn from relevant statutes and custom, legislation and case law from countries with similar legal systems to that of Papua New Guinea, relevant decisions of Papua New Guinean courts at any time, and “the circumstances of the country from time to time”.


By Sch 2.4, the courts, and especially the Supreme Court and the National Court, have a duty


“to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act.”


Although the post-Independence Parliament had not (that is, prior to the passage of the Underlying Law Act 2000) passed any Act as contemplated in Sch 2.1(3), the pre-Independence Native Customs (Recognition) Act 1963 was adopted, “subject to any Constitutional law”, as an Act of the Parliament by virtue of Sch 2.6 of the Constitution. For the purposes of this account, it will be helpful to set out here the terms of ss 3(1), 4 and 5 of this Act (now Ch 19 in the Revised Laws):


“3. Recognition of custom.


(1) Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as 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.


4. Criminal cases.


Subject to this Act and to any other law, 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. Civil cases.


Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to –


(a)the ownership by custom of or of rights in, over or in connexion 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 connexion 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 connexion 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 connexion 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.”


Finally, s 7 of the Act allows the court in a situation of conflict of custom to adopt that system of custom, or make such other order, having regard to the “ordinary rules of the underlying law” (modified as may be necessary), as the justice of the case demands.


LIMITATIONS ON THE RECOGNITION OF CUSTOM UNDER SCH 2.1


Restrictions in Constitution and in Customs Recognition Act (Ch 19)


It follows from the constitutional and statutory provisions outlined above that, in relation to a custom that appears to be relevant in a civil or criminal case (bearing in mind as well the limitations of ss 4 and 5 of the Customs Recognition Act (Ch 19)), there are potentially six grounds for refusing to adopt that custom as part of the underlying law. In other words, the adoption and enforcement of custom in a particular case is never automatic, but is rather the result of a complicated screening process. The six principal grounds (three from the wording of Sch 2.1 of the Constitution itself, and three from s 3 of the Customs Recognition Act) are the following:


(i) inconsistency with the Constitution;

(ii) inconsistency with a statute;

(iii) repugnancy to the general principles of humanity;

(iv) resulting in injustice;

(v) contrary to the public interest; and

(vi) contrary to the best interests of a child under 16 years of age.


It is not necessary or possible in this paper to examine each of these (often overlapping) grounds in detail. Some relatively simple examples of decisions or judicial statements relevant to each heading can however be given.


(i) inconsistency with the Constitution


In State v Kule [1991] PNGLR 404, a defendant who had pleaded guilty to murder wished to have taken into account, in mitigation of sentence, that he was obliged by custom to make compensation by handing over one of his young daughters to the relatives of the deceased. Doherty J (at 406-407) refused to recognise such a custom on several grounds, including that it was a practice analogous to slavery or servitude, and thus prohibited by s 253 of the Constitution. In Re Wagi Non [1991] PNGLR 84, a husband had left his wife and her four children in the care of his relatives when he travelled to another province to seek employment. After he had been absent for some years without making contact with them, the wife began a new relationship. Following complaint by the husband’s relatives, she was subsequently imprisoned for failure to meet a Village Court order for payment of compensation. She was freed by the National Court, on the basis that the custom in question infringed the equality provisions of s 55 of the Constitution. A similar result, on similar reasoning, was reached in a case involving a widow who outraged her deceased husband’s relatives by beginning a new relationship (Re Kepo Raramu [1994] PNGLR 486). In Re Willingal (1997) N 1506, Injia J refused to accept a custom whereby an unwilling woman was to be given in marriage as part of a complicated compensation settlement between two kin groups. A custom of this sort, according to the court, was objectionable on many grounds, including that of being in breach of the equality provisions of s 55 (at 48-49), and also amounted to a breach of her rights of freedom under s 32 of the Constitution (at 47-48).


(ii) inconsistency with a statute


The general problem of determining when a custom is inconsistent with a statute will be referred to later. In relation to criminal law, it is clear from the wording of s 4 of the Customs Recognition Act (Ch 19) that custom is not accepted in Papua New Guinea as a complete defence to a criminal charge, although it may sometimes be taken into account in determining sentence.[4] In civil cases, a relatively straightforward example comes from the case of Re Willingal (1997) N 1506, mentioned earlier. There, Injia J (at 47, 49) found that the practice of forced marriage infringed the protective provisions of s 5 of the Marriage Act (Ch 280). Another instance, perhaps more controversial, is that of Mura v Gigmai (1997) N 1573, where Injia J (at 7) held that to consider matters relating to payment of bride price in determining the future custody of a child of the marriage would be inconsistent with certain provisions of the Infants Act (Ch 278). [5]


(iii) repugnancy to the general principles of humanity


Despite the lack of a clear judicial definition of this phrase, a number of decisions have applied the principle to deny recognition of customs relating to dispossession of land in tribal fighting, cannibalism, and payback killings or injuries.[6] More recently, the National Court has found that the general principles of humanity forbid the forced marriage of a woman (Re Willingal (1997) N 1506, at 50-51). Again, in Re Kaka Ruk [1991] PNGLR 105, Woods J (at 107) held that the same principles invalidated a custom which prevented a wife from starting a new life by moving away from the husband’s relatives, despite the husband’s absence and failure to provide for her for some time. A final illustration is the case of Ubuk v Darius [1994] PNGLR 279, in which the court applied this ground in refusing to countenance a Mailan (Siassi) custom which ensured automatic custody of children to the father, in the event of the breakdown of an informal relationship between the parents.


(iv) resulting in injustice


A growing body of human rights jurisprudence in the National Court has in recent years also used the criteria set out in s 3 of the Customs Recognition Act (Ch 19) as alternative or additional grounds on which to object to customary practices, especially those which discriminate against women or children. The previously mentioned case of Re Willingal (1997) N 1506, for instance, also referred to this provision, saying (at 50) that it would be unjust for any woman from Minj to live under the threat of a forced marriage, while “men from Minj and other men and women in other parts of Papua New Guinea live, associate and marry freely”. In Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350, a case to be considered later in this paper, the enforcement of a customary claim for compensation to the exclusion of a common law claim for damages in negligence was rejected as likely to promote injustice (at 361).


(v) contrary to the public interest


For similar reasons to those mentioned above, the National Court court in Re Willingal (1997) N 1506 (at 50) also found that the custom of forced marriage of a woman would be contrary to the public interest. This principle was also referred to as an alternative ground in State v Kule [1991] PNGLR 404, where the court (at 406) refused to reduce a criminal sentence to reflect the fact that a child of the defendant was expected to be transferred by way of customary compensation to the victim’s kin group. The principle was also a ground for rejection of the customary claim in Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350 (at 361).


(vi) contrary to the best interests of a child under 16 years of age


As further indication of the frequently overlapping nature of the grounds in s 3 of the Customs Recognition Act (Ch 19), the court in State v Kule [1991] PNGLR 404 (at 406) also used this ground to reject the custom whereby a young child was to be part of a compensation arrangement between the families of the defendant and the victim.


The Notion of Universality of Custom for Purposes of Sch 2.1


So far, I have provided some simple illustrations of the way in which the courts in Papua New Guinea have been prepared to apply constitutional and statutory provisions to restrict or prevent the application of custom in particular cases. I now turn to a more general obstacle to the recognition of custom, which was referred to and debated in some earlier cases, but (with one exception) has received no judicial attention in recent years.


In the Supreme Court case of Poisi Tatut v Chris Cassimus; Constitutional Reference No 1 of 1977 [1978] PNGLR 295,[7] Prentice CJ was of the view that custom in Sch 2.1 must mean “custom obtaining throughout the country” (at 297). Again, in Supreme Court Reference No 4 of 1980 [1981] PNGLR 265,[8] in which Michael Somare as leader of the Opposition sought to challenge the validity of a Parliamentary decision and an Act of Parliament approving the commitment of troops to Vanuatu for a peace-keeping operation, two of the judges (Greville-Smith J at 280, and Miles J at 304) expressed similar opinions. Kapi J however (at 288) pointed to the specific definition of “custom” in Sch 1.2, and clearly rejected any general requirement that custom under Sch 2.1 must be common or widespread throughout the country. On the other hand, he continued, in a matter of national significance (such as the question of Mr Somare’s standing in the instant case), only a custom which was common throughout the country could be applied under Sch 2.1. It would consequently follow, on Kapi J’s reasoning, that in any dispute of a local character, proof of merely local custom is all that would be required for purposes of Sch 2.1.


For a number of years after the Somare decision, the issue of universality of custom under Sch 2.1 of the Constitution was not specifically raised before the National Court, and it is fair to say that the idea was in practice disregarded and forgotten. Instead, the National Court on numerous occasions referred to and was prepared to apply custom without reference to any supposed requirement of universality (some examples will be discussed later in this paper). In 1996, nevertheless, the point resurfaced. In Kolta Development and others v PNG Defence Force and the State (1996) N 1470,[9] the plaintiff companies were seeking damages against the PNG Defence Force and the State of PNG. The statement of claim was based both on custom and on the common law of negligence. One of the justifications of the trial judge, Salika J, for rejecting the claim for damages according to custom was that the plaintiffs had presented evidence of custom from only two provinces of PNG, which was insufficient to establish an appropriate nation-wide custom (at 10). This ruling might therefore seem to be in line with the views of Greville-Smith J and Miles J in Supreme Court Reference No 4 of 1980 [1981] PNGLR 265. However, since Salika J also held (at 14) that in any event it had not been established that the relevant customs were applicable to the Defence Force of PNG and State of PNG, who were not “indigenous inhabitants of the country”, this case might be regarded as analogous to the issue of national importance underlying the earlier decision in the Somare case. If so, the analysis of Kapi J in the earlier case might be equally apposite, as a reason to require evidence of a more widespread and prevalent custom for purposes of Sch 2.1 in the case being determined by Salika J. This conclusion would not then compel anything like the same approach in other customary cases of merely local significance, where a suitable local custom might be referred to and applied.


To return to the general point, what explanation could there be for this apparent doctrine of universality of custom under Sch 2.1, a notion which is so obviously out of step with the definition of “custom” in Sch 1.2, and also with the terms of s 5 of the Customs Recognition Act (Ch 19), which provisions are clearly directed to enabling the recognition of local custom in particular civil cases? In the light of such a doctrine, how could Village Courts and the former Local (and even District) Courts, be expected to continue to operate in this area, since these courts are very frequently (and in the Village Courts constantly) called upon to resolve disputes arising from local custom?


One possibility is that the judges who insisted that custom should be common or at least widespread throughout the country were making assumptions about the later consequences of “adopting” custom as part of the underlying law in a particular case. That is to say, they may have felt that once custom was so adopted, it would thereafter, as part of the underlying law, apply automatically throughout the country, overriding any other custom to the contrary, and be thus available to claimants in every province. For this reason, it may have been thought to be unjust to so adopt a custom that pertained in only one part of the country, since this would have the effect of inflicting it upon the rest of the country. If this suggestion has any plausibility, it must nevertheless be said at once that none of the judges favouring the “universality” requirement have made the point explicitly. Further, as will become clear in the later part of this paper, it is also not the prevailing view as to how Sch 2.1 operates.


Another possible explanation is that these judges felt that custom as applied in lower courts such as Village Courts or the former Local Courts, or as applied in any court by virtue of a particular statute, is somehow different in kind from custom as it is intended to be applied under Sch 2.1.[10] Such an idea, however, is inconsistent with the wording of Sch 2.1 itself, which gives no support to the idea of custom having any alternative legal significance, except as part of the underlying law. Secondly, with the exception of the Village Courts,[11] all courts in Papua New Guinea are bound by the terms of s 4 (in criminal cases) and ss 5 and 6 (in civil cases) of the Customs Recognition Act, as to the exclusive situations in which custom may be taken into account. In other words, it is the Constitution itself which gives custom its force and authority as part of the underlying law, and any statute which provides for proof of “custom”, or the application of “custom” in a particular situation, or allows for claims based upon “custom” to be brought and determined in a particular court, can only be referring to custom as contemplated and recognised under Sch 2.1.


It may be concluded, therefore, that except in cases of “national importance” such as in the Somare case itself, custom under Sch 2.1 need not be of general application, but may be specific as to both locality and time. Whatever the requirements of generality or universality of custom when Sch 2.3 is being referred to (declaration of new rules of underlying law), no similar requirements or limitations are necessary to give proper effect to the provisions of Sch 2.1. Finally, even if the gist of Sch 2.4 (need for uniformity in development of the underlying law) can be said to be at all relevant to Sch 2.1, it can be be satisfied if the courts pursue a consistent and uniform approach to the ascertainment and adoption of local custom in particular cases.[12]


LIMITATIONS ON THE ADOPTION OF COMMON LAW UNDER SCH 2.2


By Sch 2.2 of the Constitution, set out above, the principles and rules of English common law, as at Independence Day, are adopted as part of the underlying law, except in the following situations:


(i) inconsistency with the Constitution;

(ii) inconsistency with a statute;

(iii) inapplicability to the circumstances of the country from time to time;

(iv) inconsistency with the requirements of the cut-off date for adoption of the common law; and

(v) inconsistency with custom as adopted under Sch 2.1.


Of these limitations, the first two are relatively straightforward, and have so far caused few problems for the courts. The third limitation, that of inapplicability to the circumstances of the country from time to time, has only rarely been referred to in the caselaw, a matter which has attracted strong criticism from some judges and commentators.[13] The final two limitations merit further discussion.


Inconsistency with the cut-off date for the adoption of the common law


There are two elements to be considered concerning the requirements of the cut-off date for the common law, that is the common law of England “immediately before Independence Day” (16 September 1975). The first issue refers to the effect of subsequent English caselaw on the common law to be adopted in PNG. This has been well treated elsewhere,[14] and for reasons of space will not be included here.


The second issue concerns the effect of English statutory revisions of common law adopted in PNG. Sch 2.2(3) states that the principles and rules of common law and equity are adopted under Sch2.2(1) and (2) “notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch 2.6 (adoption of pre-Independence laws)”.


The wording of Sch 2.2(3) has given rise to two sources of ambiguity. The first is the meaning of the word “notwithstanding”. The second ambiguity is the meaning of the word “revision”, and whether this includes cases of abolition or repeal.


The ambiguity concerning the first point, which is similar to some long-standing sources of controversy over the effect of earlier reception provisions in Papua and in New Guinea,[15] was resolved by the Supreme Court in The Ship ‘Federal Huron’ v Ok Tedi Mining Ltd [1986] PNGLR 5. In relation to Sch 2.2(3), the essential point was whether, following Independence, common law principles of admiralty law were to be potentially applicable in Papua with, or without, taking into account any modifications effected by pre-Independence English statutes. As the court (Kidu CJ, Pratt and Woods JJ) noted in a joint judgment, the word “notwithstanding” in Sch 2.2(3) could be read in this context to produce either result (at 18-19). In the event, the court was impressed by the argument that the constitutional arrangements of 1975 represented “a deliberate plan executed to wipe the legislative slate clean at Independence” (at 20), and consequently went on to hold that the intention was to exclude statutory modifications of the common law (at 19, 21-22).


The second ambiguity – the distinction between revision and abolition of statutory provisions – has most recently been treated in the Supreme Court decision in Mt Kare Holdings v Wapula Akipe [1992] PNGLR 60.[16] Although the position still cannot be said to be entirely clear, this decision supports the proposition that pre-Independence statutory ‘revisions’, even extending to the complete abolition of a cause of action, have no effect on the common law adopted in Papua New Guinea. Instead, the courts of Papua New Guinea have to consider the unaltered common law rules according to the criteria set out in Sch 2.2(1), namely consistency with the Constitution, with statute law, and with custom as adopted under Sch 2.1, as well as suitability to the circumstances of the country.


The implications of this view will obviously need to be considered carefully in future cases, especially in those areas of the common law which have been affected by English statutes passed long ago. As a simple example, would a court in PNG dealing with a question of the law of real property or the law of trusts be expected to consider the relevance of the English common law prior to the passage of the Statute of Uses (UK) of 1535? In areas of English law where court decisions and statutory modifications have interacted for centuries (as in land law, succession law, criminal law, evidence law, and so on), it may in practical terms be quite impossible to locate the common law in a supposedly original and pristine form


Relationship between Custom and Common Law under Sch 2


The fifth limitation is a rather more complex issue, and has led to a number of conflicting judicial approaches. The question concerns the precise relationship between custom and the common law, as the two principal ingredients of the underlying law of Papua New Guinea. In particular, does one of these sources have priority or superiority over the other, in a case where both sources appear to be relevant and applicable? Or, instead, can there be a “dual system” of law in this situation, allowing a party to choose between customary and common law remedies or causes of action?


Does Custom have Priority over Common Law?


(i) Supreme Court Reference No 4 of 1980 (1981)


In the previously noted Somare case concerning the sending of Papua New Guinean troops to Vanuatu (Supreme Court Reference No 4 of 1980 [1981] PNGLR 265), Miles J considered and rejected the arguments that the wording of Sch 2.2 gave some sort of priority to custom as against the common law, and that only where the court had already decided that there was no appropriate custom should it turn to consider whether there was any suitable common law rule to apply. He stated that while it was the court’s duty not to apply the common law without having regard to whether it was inconsistent with the Constitution or a statute or a custom, or inappropriate to the circumstances of the country, “the order in which these various factors are taken into consideration cannot be of any consequence”. In particular, it would place too much of a burden on judges and lawyers if they were obliged to begin each case with an extensive enquiry into the possible relevance of custom (at 303-304).


In the same case, Kapi J, however, thought that the form of wording used in Sch 2.2 was important, and that in a case involving the underlying law, the wording of Sch 2.2(1)(c) gave priority to custom, which accordingly should be the starting point of the enquiry. That is to say (at 286):


“Custom which is adopted in accordance with Sch 2.1 of the Constitution is superior to common law because common law is only applicable to the extent that it is not inconsistent with custom as adopted under Sch 2.1 of the Constitution (Sch 2.2(1)(c) of the Constitution). The extent to which common law is applicable cannot be determined without determining what the custom says.”[17]


(ii) Aundak Kupil (1983)


In several other cases, the question of priorities and choices between customary and common law claims and remedies have received more detailed attention. Of these, the case of Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350 dealt with the outcome of a road accident in which the two plaintiffs had sustained very serious injuries, when the government vehicle in which they were travelling was involved in an accident. Both the plaintiff victims and the driver came from the Wahgi area of the Western Highlands. The driver was later convicted of dangerous driving. The plaintiffs brought a common law action for damages for negligence, suing the State as being vicariously liable for the actions of its driver. Before the trial began, the driver and his relatives paid an amount of customary compensation to the victims and their relatives. This compensation consisted of K2,400 in cash, and a number of pigs and cassowaries, amounting to an overall total value in each case of about K5,500.


At the trial, Bredmeyer J invited the State to address him on the significance of the payment of customary compensation in relation to the common law claim. This course was not objected to by the plaintiffs’ counsel. A deal of evidence was then led concerning the relevant custom. In essence, this was to the effect that the same amount of compensation was generally payable whether or not the driver was at fault, and whether or not the victims were also to blame for their injuries. The compensation was paid collectively by the driver’s relatives, and shared out among the victims’ relatives. The main purpose of the compensation was to restore harmonious relationships between the two respective groups. Non-payment of compensation would lead to threats, and possibly fighting and death by way of retaliation from the victims’ relatives (at 355-58).


Faced with this evidence, and having expressed the view that under Sch 2.1 and 2.2 of the Constitution custom is normally accorded “the predominant role” (at 360), Bredmeyer J then had to decide whether the Wahgi custom of compensation for road accident injuries should be applied via Sch 2.1. Distinguishing between the payment of compensation itself, and the threats of retaliation if compensation were not forthcoming, the court found that the first part of the custom was in principle enforceable under Sch 2.1(2). The second part of the custom, in contrast, was inconsistent with several statutes and some sections of the Constitution, including the requirement of not being repugnant to the general principles of humanity (at 359).


Bredmeyer J then referred to the “motor vehicle accident industry” in Papua New Guinea (at 360), pointing out that for many years plaintiffs in Papua New Guinea had been bringing claims for road accident injuries, under the common law as supplemented by various statutes (for example, the legislation requiring compulsory third party insurance). The only real question then as to the applicability of the common law via Sch 2.2 was that of inconsistency with custom.


Counsel for the State eventually argued that the customary and common law claims were inconsistent, and that the plaintiffs should be limited to the standard amount of customary compensation (proved to be about K10,000 each plus pigs and cassowaries). Since the plaintiffs had actually received less cash than usual, they should only be able to claim the balance (about K7,600 each). Counsel for the plaintiffs, on the other hand, argued that the two claims were not inconsistent, since they were between different parties, and based on different aims and principles, and that the plaintiffs should be able to keep the full amount of both claims. If, in the alternative, the court decided that some reduction to the amount of common law damages was required, it should only be for the amounts actually retained by the victims personally, and not the other amounts shared out among the various relatives (at 361).


The trial judge took an intermediate approach, appearing to conclude (without elaboration) that the customary and common law claims were inconsistent. Rather than deciding as a consequence that the common law claim was thereby precluded, Bredmeyer J stated that in this instance, to enforce the custom to the exclusion of the common law claim would promote “injustice” and would not be “in the public interest”, within the terms of s 3(1)(a) of the Customs Recognition Act (Ch 19).


On the first point, Bredmeyer J said that injustice would be caused because otherwise plaintiffs with similar injuries would receive different awards of damages. For instance, if the driver was an expatriate from France, or if the victim was a Tolai, in either case the Wahgi system of custom might not be able to be applied, and instead the defendant would be liable for, or the plaintiff victim entitled to, the common law assessment of damages. In the court’s view, the amount of damages awarded “should not depend on the identity of the plaintiff or the identity of the vehicle driver” (at 361).


Secondly, to exclude totally the common law action would be contrary to the public interest, since the system of damages for road injuries, as bolstered by various statutory amendments, was well-known, having been in operation throughout the country for more than sixty years. The Wahgi people pay compulsory third party insurance premiums and charges, as well as taxes to the State, so why should Wahgi victims be denied access to the insurance fund, or be prevented from suing the State when its employees are at fault (at 362)?


As a final point, referring again to the Customs Recognition Act (Ch 19), s 3, the trial judge said that it would not be unjust to either the plaintiff or the defendant (that is, the State) if the plaintiffs received both sets of damages. Nevertheless, it would be more in the public interest if customary claims in this area were ultimately discouraged (especially considering the negative aspects of threats and possible retaliation). Hence the damages at common law (which the judge then proceeded to assess) should be reduced by the total amount of compensation paid to each victim, regardless of whether or not it had been retained by the victim or instead distributed to the victim’s relatives (at 362-63).


Before commenting further on this judgment, it is useful to refer to two later decisions which present a range of judicial views on the question of “choice” between customary and common law remedies. To reiterate the main point, where both a claim under custom and a claim under common law appear to be applicable, does the customary claim take priority, or is the plaintiff in effect able to elect between remedies (or even, perhaps, to pursue both remedies)?


(iii) Madaha Resena (1991)


In Madaha Resena v State of Papua New Guinea [1990] PNGLR 22, the plaintiffs in earlier proceedings under the Land Titles Commission Act had been finally confirmed as the customary owners of Fisherman’s Island (near Port Moresby). They then commenced action against the State for various heads of common law damages arising from trespass, on the basis that the State had, about a century previously, wrongly taken over the island as waste and vacant land. The trial judge, Bredmeyer J, stated that he found the switch from a claim based on custom to a remedy based on common law to be “very incongruous”. He continued, stating that if the claim to the ownership of the land was based on custom, so also should be their claim for compensation for the government’s wrongful use of that land. Consequently, since the plaintiffs should not be allowed to “have it both ways”, he proposed to decide the case according to the principles of Tatana (Motuan) custom (at 31-32). However, as no evidence of Motuan custom had been submitted to the court, the trial judge then proceeded via Sch 2.3 to develop the underlying law by applying his own views as to the appropriate heads and amount of damages (which appeared to be considerably less than would have been available at common law).


On appeal by the plaintiffs to the Supreme Court ([1991] PNGLR 174), Amet J began by stressing the autochthonous nature of the Papua New Guinean Constitution, and the need to develop an indigenous jurisprudence (at 186-89). He also referred approvingly to the opinion of Kapi J in the Somare case, that under Sch 2.1 and 2.2, custom is superior to the common law (at 189). He continued (at 190):


“If custom is adopted and applied under Sch 2.1, it becomes an underlying law principle. If a principle of common law is adopted and applied under Sch 2.2, it too becomes an underlying law principle. They become part of the development of a consistent and coherent system of our indigenous jurisprudence or underlying law. They do not remain separate systems of law. Upon adoption and application they become part of the ‘underlying law’ referred to in s 9(f) [of the Constitution].

It was never, in my opinion, the intention of the [Constitutional Planning Commission] or the Constituent Assembly that there should exist a ‘dual system of law’ applicable under Sch 2 of the Constitution. I do not believe that it was ever intended that litigants have a choice of law or remedy, nor do I think it was ever intended that there should be a different system of law for indigenous inhabitants and a different system for non-indigenous inhabitants.”


Amet J then expressed his agreement with the views of the trial judge, that the plaintiffs were not able to change from a claim based on custom to seek a common law remedy in damages. He thought however that Bredmeyer J’s resort to Sch 2.3 had been premature, because insufficient effort had been made to obtain evidence about the nature of Tatana custom where customary land rights had been infringed by trespassers (at 192). He therefore held that the case should be returned to another National Court judge, for the purpose of inquiring into the relevant custom in relation to its potential adoption and application “as a superior source of underlying law pursuant to Sch 2.1” (at 193).


While Kapi Dep CJ agreed with Amet J as to the ultimate method of disposal of the case, he reached the result in a rather different way. To begin with, he pointed out that the trial judge had proceeded upon a false premise in saying that the plaintiffs had initially chosen to bring their claim under custom, since s 15 of the Land Titles Commission Act, by providing for the Commission to be the exclusive forum, prevented them proceeding in any other way (at 178-79). Once title to the land had been determined by the Commission, Kapi Dep CJ continued, the separate issue of consequential relief for the plaintiffs was then to be determined according to Sch 2 of the Constitution. Just as statute in some cases allows for a “dual system” of laws in Papua New Guinea (for example, dealing with marriage, custody of children, and inheritance of certain kinds of property), so Sch 2 contained, side by side, the two primary sources of the underlying law, custom and common law (at 180). While customary law may normally be irrelevant for “non-indigenous inhabitants”,


“[a]s far as the ‘indigenous inhabitants of the country’ are concerned, they have their rights regulated by customary law as well as the common law. ... When the indigenous inhabitants of the country, such as the plaintiffs in this case, are considering their rights and the subject matter is regulated both by customary law as well as the common law, there is a choice of remedy. There is nothing under Sch 2 of the Constitution which would compel a litigant who is an indigenous inhabitant to litigate under the principles of custom.”


In a further development of his argument, Kapi Dep CJ then said that it was quite legitimate for the Fisherman Island plaintiffs to elect to sue for damages at common law. However, the filtering process of Sch 2.2(1) had then to be considered (at 182). Here, there was no indication that the Constitution or any other statute was relevant, nor that the claim was unsuitable to the circumstances of the country, but it would nevertheless be necessary to consider the question of inconsistency with custom (at 182-83):


“This means that where a common law action is instituted as a matter of choice, if a custom which is applicable to any of the parties in the action is shown to be inconsistent with the common law action, the common law principle in the particular case cannot be enforced. It is the duty of counsel to ensure that this inquiry is made before principles of common law can be adopted and enforced as part of the underlying law.”


Since the trial judge had not applied sufficient attention to the question of Tatana custom, the matter would need to be returned for further enquiry on this point, for purposes of Sch 2.2(1)(c). A related aspect of this enquiry would be whether any Tatana (Motuan) custom applicable to the plaintiffs would also be applicable to the defendant (the State). To conclude, should it turn out that any relevant custom, applicable to the defendant, was inconsistent with the common law action, then according to Kapi Dep CJ the common law action would have to be dismissed, and a fresh action under custom instituted instead (at 183).


The third judge, Los J, echoed the terminology adopted by Kapi Dep CJ, in referring to the existence of a “choice” of remedies (at least until the Supreme Court had another opportunity to receive detailed argument on the point). In his provisional view, however, the screening process in Sch 2 of the Constitution was not intended to “arbitrarily drop the common law in favour of the customary law”, and in the absence of relevant statutory law the parties had a right to choose which law to apply (at 195-96).


In the result, all the judges agreed that Bredmeyer J had been premature in resorting to Sch 2.3 to develop new rules of the underlying law, and the matter was referred back to the National Court to hear evidence as to any relevant Tatana (Motuan) custom.


(iv) Pawa Kombea (1994)


The final case to be mentioned is the National Court decision of Kapi Dep CJ in Pawa Kombea v Semal Peke [1994] PNGLR 572, where the plaintiff sued for damages at common law under a number of heads, including malicious prosecution, false imprisonment, and defamation. After default judgment was signed, the matter came before Kapi Dep CJ for assessment of damages. He raised the matter of customary law, and repeated passages from his judgment in Madaha Resena as to the “choice” of remedies, subject to the priority of custom if inconsistent with the common law. He then adjourned the case to allow evidence to be obtained as to custom in the area of the Southern Highlands where both the plaintiff and defendant lived.


On the resumed hearing, Kapi Dep CJ expressed his satisfaction with the views of two local experts (one village leader, and one Village Court magistrate) that “there is no custom which would be inconsistent with the actions taken in common law in this case” (at 574). The judge then proceeded to assess damages in accordance with common law principles, after summarising the legal position as follows (at 574):


“[T]he right time in which to raise the question of custom is at the outset, when a cause of action is instituted. ... If there is any custom which may be relevant, it should be pleaded to indicate whether or not it is inconsistent with the principles of common law and equity. If there is no custom which is relevant, that fact should also be pleaded.


In my view, it is necessary to raise the question of custom in the pleadings in all actions which are based on the principles of common law and equity which are yet to be adopted as part of the underlying law to give effect to Sch 2.2(1)(c) of the Constitution.


In the present case, custom was not pleaded, and when judgment was entered, it related only to the action brought in accordance with the principles of common law. As there is no relevant custom and no issue was raised about the applicability and appropriateness of principles of common law, it will be adopted as part of the underlying law.”


The implications of this passage will be considered in the discussion which follows.
Confusions from the Caselaw


From the cases of Aundak Kupil (1983), Madaha Resena (1991), and Pawa Kombea v Semal Peke (1994), it can be seen that there is a variety of judicial views as to the relationship between customary and common law claims under Sch 2 of the Constitution. Bredmeyer J in Aundak Kupil evidently considered that the Wahgi custom dealing with compensation for road accident injuries was inconsistent with the common law claim for negligence ([1983] PNGLR 350, at 360-63). In that situation, on the trial judge’s view, Sch 2 would normally give priority to the customary claim (and on the State’s argument, the plaintiffs would have been limited to the amount of compensation allowable under custom). Bredmeyer J however decided for various reasons to apply the criteria in s 3 of the Customs Recognition Act (Ch 19) relating to justice and the public interest. As a result, he held that the Wahgi custom was not to be applied in preference to the common law remedy of damages (referring to the “motor vehicle accident industry” ([1983] PNGLR 350, at 360)). One aspect of the “justice” factor, according to Bredmeyer J, was that plaintiffs with similar injuries should receive similar damages. There were, it seems, no such competing considerations in the same judge’s first instance judgment in Madaha Resena, where Bredmeyer J held, in contrast, that it was not open to the Tatana plaintiffs to choose a common law remedy in relation to a claim initially based on custom.


Amet J agreed with this latter approach in the Supreme Court decision in Madaha Resena, stating that it could not have been intended by the founders and drafters of the Constitution that plaintiffs should have a choice of remedies, or that the law applicable to indigenous inhabitants should be different to that applying to non-indigenous inhabitants. What is not clear, nevertheless, is how the holding in Madaha Resena, which makes the damages receivable by the plaintiffs depend upon the evidence of Tatana custom, will help to achieve Amet J’s goal of a single underlying law for everyone in the future. That is to say, if a land trespass case were next to arise in the Wahgi district, for instance, damages would presumably depend upon the details of Wahgi (not Tatana) custom, and in a case where only non-indigenous inhabitants were involved, damages would presumably be assessed in accordance with common law principles. Further, where parties come from different custom areas, or one party is Papua New Guinean and the other is not, it is also not obvious on Amet J’s approach which principles should apply. Finally, it should be emphasised that the opinions of Bredmeyer J (at first instance) and Amet J (on appeal) in Madaha Resena provide a contrast to the view of Bredmeyer J in the earlier Aundak Kupil case, that plaintiffs with similar claims or injuries should receive similar damages. That is to say, if the approach in Madaha Resena is taken, Papua New Guinean plaintiffs with analogous claims in different parts of the country will obviously receive differential amounts of compensation, according to the varying nuances of local custom.


Turning to the views of Kapi Dep CJ (to some extent supported by Los J), it may be suggested that the idea there floated of a “choice” of remedies is somewhat misleading, since this is immediately made subject to the proviso that if the customary and common law claims or principles or remedies are inconsistent, then custom should prevail (assuming no other Sch 2.1 disqualifications are applicable). If the possibility of choosing between the remedies disappears as soon as the remedies are discovered to be inconsistent, then in reality there is no choice at all. Perhaps the answer lies in Kapi Dep CJ’s idea of what “inconsistency” or “choice” means, but this aspect remains unexplored in his judgments to date.


Returning to Kapi Dep CJ’s concern with inconsistency, it is also not apparent why the customary law of defamation and false imprisonment (that is, customary ideas and practices relating to insulting words, and wrongful restriction of personal freedom), in that part of the Southern Highlands referred to in Pawa Kombea, was not inconsistent with the common law principles.[18] No details of the customary law were given, or for that matter of the technical elements of the common law claims. The judge appears to have been simply satisfied by the assurances of two local witnesses (neither of whom could be expected to have any particular knowledge of the common law), to the effect that there was no conflict. This may be compared with the more determined efforts of Kapi Dep CJ and Los J in Madaha Resena, where the failure of the trial judge to refer to any evidence of relevant custom was treated as a reason to return the case for further investigation on the point.


As a final comment on Pawa Kombea v Semal Peke, it remains unclear what Kapi Dep CJ had in mind, in the passage quoted above, when he spoke of the necessity to plead custom in all cases relying on “principles of common law or equity which are yet to be adopted as part of the underlying law”. When, and in what sense, does this adoption ever occur? Obviously, there have been prior cases of defamation (for example) in Papua New Guinea since Independence, in which the common law principles have been applied, but the whole gist of the main judgments of the Supreme Court in Madaha Resena, echoed by Kapi Dep CJ in Pawa Kombea, is that the required process of checking for relevant customary law (which itself may change over time, as contemplated in the definition of “custom” in Sch 2.1) before applying the common law should continue in every new case as it arises. In other words, the court’s decision in Pawa Kombea to adopt the common law principles “as part of the underlying law” seems to be limited to the particular case at hand, and to have no automatic significance at all for later cases. The implications of this obligatory checking process for the notion and doctrines of “precedent” (that is, in brief, that “like cases should be decided alike”, and that decisions of higher courts are binding on lower courts), have yet to be considered. The difficulties that the resulting uncertainty produces for citizens trying to understand the current state of the law, for lawyers seeking to advise their clients, and for magistrates and judges trying to decide cases, can easily be imagined.


Problems of ‘Inconsistency’


In summary, the case law dealing with the relative priority as between customary law under Sch 2.1, and common law under Sch 2.2 is complex, controversial and ambiguous. The leading Supreme Court decisions, unfortunately, have not so far clarified these issues. (For example, there is a striking, but so far unremarked, contradiction between the views of at least some Supreme Court judges in the Poisi Tatut and Somare cases (only “universal” custom to be considered under Sch 2.1), and the Supreme Court’s holding in Madaha Resena (particular local custom to be applied under Sch 2.1 in preference to the common law under Sch 2.2).


One of the contributing causes of confusion, in my view, arises from the difficulty of resolving questions of inconsistency, especially as between custom and statute, and as between custom and common law. On the former point, it will be recalled that according to Sch 2.1 of the Constitution, custom cannot be applied and enforced as part of the underlying law if it is inconsistent with a statute. It then becomes a matter of statutory interpretation, in a particular instance, to determine whether the legislation is intended to affect the operation of custom. For example, is the purpose of the legislation to override the operation of custom, by covering exhaustively the relevant field of activity, or is it possible for custom and statute to coexist simultaneously? Here, it is only possible to give a couple of examples of the problem.


As one illustration, if a Papua New Guinean couple made a statutory marriage under the Marriage Act (Ch 280), would it still be possible for the wife’s relatives to bring a claim against the husband for payment of bride price? In Peter v Mathew (1995) N 1365, Woods J noted in passing (at 5) that “bride price is not a condition precedent to a marriage under the Marriage Act”. While this is undoubtedly true, the court there was not being asked to deal with the question posed above. It might be arguable that there is no inconsistency between the Marriage Act and the custom of bride price, because the custom is not a mere “formality” relating to the celebration of marriage, but a practice which has implications for the future behaviour and expectations of the spouses, the relationship between their respective sets of relatives, the position and entitlements of their children, and so on.[19] On this approach, then, it would remain possible for bride price to be legally required even in the case of a statutory marriage. Whether the court would accept this argument in a particular instance might well depend on the specific details of custom introduced in evidence.


Another example is that of customary defamation claims, in the light of the Defamation Act (originally passed in 1962, now Ch 293). According to its original preamble, the purpose of this legislation was to “consolidate and amend the law of defamation”. At the time, this presumably meant the introduced (common) law of defamation, and was not intended to have any application to customary claims. Certainly, Raine J in the pre-Independence Supreme Court decision of Taupa v Joel (1974) SC 822 saw no reason why a customary claim for defamation would not be possible. In contrast, Bredmeyer J in Bole v Imbell (1982) N 354(M) rejected the possibility of a customary claim, saying (at 2) that the “cause of action is given by the Defamation Act 1962, which being a statute overrides custom”. Interestingly, Kapi Dep CJ in the previously discussed case of Pawa Kombea v Semal Peke [1994] PNGLR 572, in which the court ultimately awarded common law damages for defamation (among other injuries), made no mention of the legislation at all. The point of whether the statute operates to cover the field, in the sense of applying to all defamation claims, thus remains open for future determination.


The matter of inconsistency as between customary and common law claims is rather more complex, given the number of levels at which conflict or inconsistency can potentially occur. It is also more pressing, if the views of Amet J and Kapi Dep CJ in Madaha Resena gain ascendancy among the judges of the National and Supreme Court. This is because there can be inconsistency not simply in relation to “cause of action” in a broad sense, but also in regard to specific aspects or incidents of the claim. These aspects may include the precise type of remedy, the measure of damages, the choice of forum, any relevant defences, the relevant rules of evidence, other procedural aspects, and time limits for bringing the action.[20] Of course, some of these matters may be regulated and clarified already by statute in Papua New Guinea, but in other situations it may be difficult to determine whether “inconsistency” exists, and if so, how it can be resolved.


Even at the broader level of “cause of action”, it is not always obvious when a customary claim and a common law claim are in conflict. While the judgment of Bredmeyer J in Aundak Kupil [1983] PNGLR 350 remains an interesting example of judicial reasoning and interpretation of Sch 2 of the Constitution, it is noteworthy that the court did not elaborate on its reasons for concluding that the customary and common law claims arising out of the motor vehicle accident were apparently inconsistent. The court did however say that it would not be in the public interest “for the plaintiff to get both forms of compensation” (at 362). Given that the evidence suggested that the customary claim involved different parties (the respective kin groups of the driver and the victims), and was based on different principles both as to liability and as to assessment of compensation (see at 354-58, 362), it is interesting to speculate whether other judges would have reached the same conclusion. Or is the “inconsistency” here in fact a prohibition on allowing more than one type of claim from the same event or incident? Again, the reason for this conclusion is not evident from the judgment.


RELEVANCE OF THE UNDERLYING LAW ACT 2000


In summary, there have been a range of difficulties in the interpretation of the provisions of Sch 2.1 and 2.2 of the Constitution in relation to the adoption of custom and principles of common law as part of the underlying law of PNG. Among the key points outlined above are the idea of “universality” of custom for the purposes of Sch 2.1, problems associated with the cut-off date for the adoption of the common law under Sch 2.2, the relationship between custom and common law for purposes of Sch 2.2, the notion of “adoption” of principles of custom or common law as part of the underlying law, issues of inconsistency between custom and statute, questions of inconsistency and of “choice” between custom and common law, and the whole problem of applying the doctrine of judicial precedent to the underlying law.
In this section, I will refer briefly to the Underlying Law Act 2000,[21] which as noted has been in force since August 2000 but has yet to receive any serious discussion in the courts. It will be helpful to set out the main provisions of the statute, so far as relevant to the discussion in this paper.


According to the Preamble, the purpose of the Act is to implement s 20 of the Constitution, by stating the source of the underlying law, and providing both for the formulation of rules of the underlying law, and for its development.


By s 3, the sources of the underlying law shall be the customary law (defined in s 1 of the Act in precisely the same away as “custom” is defined in Sch 1.2 of the Constitution, set out earlier) and the common law in force in England immediately before 16 September 1975. As to the latter, the principles and rules of common law are to be applied “notwithstanding their modification through an amendment, repeal or alteration by a statute of England unless the modifying statute has been adopted in Papua New Guinea” (s 3(3)(b)).


By s 4(1) the customary law[22] and the common law shall be adopted and applied as part of the underlying law. As to customary law, s 4(2) states that the customary law shall be applied unless it is inconsistent with a written law, or its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations under the Constitution, or contrary to the basic rights guaranteed by Div III.3 of the Constitution. By s 4(3), the common law shall not be applied unless it is consistent with the written law, applicable and appropriate to the circumstances of the country, consistent with the customary law as applied under s 4(2), and it its application and enforcement would not be contrary to the National Goals and Directive Principles, the Basic Social Obligations, and the basic rights guaranteed by Div III.3 of the Constitution. Section 4(5) states that a principle or rule of customary law or common law applied under ss 4(2) or (3) shall become part of the underlying law.


According to s 6, the court in dealing with the subject matter of a proceeding, shall apply the laws in the following order: (a) the written law; then (b) the underlying law; then (c) the customary law (including analogies from rules of the customary law); and then (d) the common law.


Where none of these laws are applicable, the court by virtue of ss 7(4) and (5) shall formulate a rule appropriate to the circumstances of the country, as part of the underlying law, having regard to the NGDP, BSO, and the basic rights set out in Division III.3 of the Constitution, analogies from the relevant written law and customary law, and laws of a foreign country relevant to the subject matter of the proceeding.


If the Supreme Court or National Court in a proceeding considers that a rule of the underlying law is no longer appropriate to the circumstances of the country, under s 9 it may formulate an appropriate new rule as part of the underlying law, having regard to the same sources just mentioned.


Where a question arises as to which particular customary law should apply, by s 17 the court will in general[23] apply the customary law of the community to which both parties belong. If they belong to communities with different customary law rules, however, the court will apply the customary law that the parties intended to govern the subject matter, or otherwise the customary law that the court thinks most appropriate to the subject matter, having regard to the place and nature of the transaction, act or event, and the nature of residence of the parties.


Finally, s 24 which deals with “Transitional Provisions”, is in the following terms:

“(1) A principle or rule of customary law or a principle or rule of common law or a formulated rule of the underlying law which was in effect immediately before the coming into operation of this Act, is adopted and applied as part of the underlying law, on the coming into operation of this Act.


(2) The underlying law as prescribed by Schedule 2 ... of the Constitution which was in effect immediately before the coming into operation of this Act, shall cease to have any effect on the coming into operation of this Act.”


The wording of the Preamble taken together with s 24(2) is consistent with the terms of s 20 of the Constitution,[24] indicating that the Underlying Law Act 2000 is to replace the relevant provisions of Sch 2 which prescribe the underlying law, which provisions are then repealed by s 24(2). As the Act is specifically contemplated by s 20 of the Constitution, it is consequently arguable that the alteration so effected to Sch 2 does not need to comply with the “manner and form” requirements for constitutional amendments prescribed in ss 13-17 of the Constitution.


The meaning of s 24(1) is not entirely clear,[25] but it will presumably have the effect of preserving the operation of all post-Independence decisions of PNG courts dealing with principles of custom, common law, and the underlying law (in contrast, s 21(2) makes it clear that no decision of a pre-Independence PNG court is of binding effect).


It is apparent that the overall tenor and purpose of the Act of 2000 is to place customary law in a superior position to that of the common law as a source of the underlying law. This is clear from the wording of ss 3, 4, 6 and 7, set out above, which emphasises that the court should only apply the common law to the subject matter of a proceeding once it has satisfied itself that the customary law is not relevant. On the other hand, it should be noted that the Act of 2000 does not specifically purport to repeal any of the provisions of the Customs Recognition Act (Ch 19), unlike some of the drafts of the Underlying Law Bill prepared in the early years after Independence.[26] Thus it is likely that some of the terms of the Customs Recognition Act restricting the recognition of custom (see ss 3-5 of Ch 19, set out above) will continue to apply. In any event the courts will have to deal with issues of inconsistency between the two statutes, and other arguments about repeal by implication of sections of the former Act.[27] The notion of “universality” of customary law is not specifically dealt with, other than by the definition of “customary law” in s 1 of the Act of 2000, but since this definition is identical with that of “custom” in Sch 1.2 of the Constitution, it may not prevent judicial debates arising similar to those referred to under Sch 2.1 as to how common a rule of customary law must be in order to be adopted as part of the underlying law.


As to the matter of the cut-off date for the common law, the wording of s 3(3)(b) quoted earlier would seem to resolve the issues discussed in Federal Huron and in Mt Kare Holdings, although the difficulties of sometimes being able to locate supposedly “original” common law doctrines, shorn of any statutory amendments, should not be understated.


Turning to the difficult issue of the relationship between customary law and common law claims, s 6 of the Act of 2000 states that after the written law is considered and found inapplicable in relation to the subject matter of a proceeding, the underlying law is to then be applied, and then the customary law and then the common law. Of itself, however, this provision does not resolve the complex questions canvassed earlier arising from cases such as Aundak Kapil, Madaha Resena, or Pawa Kombea, namely when and in what sense a principle of customary law or common law can be said to have been “adopted” as part of the underlying law, and more generally as to the extent to which the doctrine of precedent can be effectively applied to the underlying law.


CONCLUSION


In this paper I have considered some of the difficulties which have arisen in the judicial interpretation of Sch 2 of the Constitution, in relation to the role of custom and of the common law as sources of the underlying law of PNG. While some of those complexities may now have been removed by the enactment of the Underlying Law Act 2000, many of the same ambiguities and confusions are likely to come before the courts in cases arising under the new legislation. Further legislative reform may indeed be required before the main issues are resolved. In light especially of the decisions in Madaha Resana and Pawa Kombea, one of the most crucial issues for future law reformers to consider will be the appropriate balance to be struck between the competing aims of ensuring legal certainty and predictability, on the one hand, and providing legal flexibility and adaptability to new circumstances, on the other. In short, when (and if so, to what extent and by what manner) does a court decision on customary law or common law as the key elements of the underlying law in one case become a binding precedent for later cases?

[*] Visiting Senior Fellow, University of New South Wales, Sydney NSW 2052 Australia. A number of the ideas in this paper were first developed with the crucial collaboration of Tony Regan, in a joint project published several years ago: see O Jessep and AJ Regan, “Developing a Coherent Underlying Law – Integrating Custom and Common Law in Papua New Guinea”, in AJ Regan, O Jessep and E Kwa (eds), Twenty Years of the Constitution of Papua New Guinea (Canberra, Law Book Co, 2000).
[1] A Amet, “Severing the Umbilical Cord from the Common Law”, in J Aleck and J Rannells (eds), Custom at the Crossroads (Port Moresby 1995), pp 62-67, at p 62.
[2] These include B Sakora, “Judicial Law-making under the Papua New Guinea Constitution”, in P Sack (ed), Pacific Constitutions (Canberra 1982), pp 257-70; D Weisbrot, “The Impact of the Papua New Guinea Constitution on the Recognition and Application of Customary Law”, in P Sack (ed), Pacific Constitutions (Canberra 1982), pp 271-90; J Zorn, “Common Law Jurisprudence and Customary Law”, in R James and I Fraser (eds), Legal Issues in a Developing Society (Port Moresby 1992), pp 103-27; J Nonggorr, “Development of Customary Law: Replacing the Customs Recognition Act”, (1993) 21 Melanesian Law Journal 49-62; J Nonggorr, “The Development of an ‘Indigenous Jurisprudence’ in Papua New Guinea: The Past Record and Future Prospects”, in J Aleck and J Rannells (eds), Custom at the Crossroads (Port Moresby 1995), pp 68-83; A Amet, “Severing the Umbilical Cord from the Common Law”, in J Aleck and J Rannells (eds), Custom at the Crossroads (Port Moresby 1995), pp 62-67; and T Deklin, “The Future of Papua New Guinea Customary Law: Rot Wei?”, in J Aleck and J Rannells (eds), Custom at the Crossroads (Port Moresby 1995), pp 34-42; D Roebuck, “Custom, Common Law and Constructive Judicial Lawmaking”, in R De Vere, D Colquhoun-Kerr and J Kaburise (eds), Essays on the Constitution of papua New Guinea (Port Moresby, 1985), pp 127-45; and D Weisbrot, “Integration of Laws in Papua New Guinea: Custom and the Criminal Law in Conflict”, in D Weisbrot, A Paliwala and A Sawyerr (eds), Law and Social Change in Papua New Guinea (Butterworths, Sydney 1982), pp 59-103.
[3] See O Jessep, “The Elusive Role of Custom in the Underlying Law of Papua New Guinea”, (1998-99) 26 Melanesian Law Journal 1-36; and O Jessep and AJ Regan, “Developing a Coherent Underlying Law – Integrating Custom and Common Law in Papua New Guinea”, in AJ Regan, O Jessep and E Kwa (eds), Twenty Years of the Constitution of Papua New Guinea (Canberra, Law Book Co, 2000).
[4] For an example where the court refused to take to take a custom of payback into account, see State v Nerius and Tingas (1982) N 397.
[5] For earlier discussion of the issue, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), pp 144-46.
[6] See for example Wena Kaigo v Siwi Kurondo [1976] PNGLR 34; State v Aubafo Feama [1978] PNGLR 301; Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350; Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78; and Public Prosecutor v Sidney Kerua and Billy Kerua [1985] PNGLR 85.
[7] This case is discussed in more detail in O Jessep and AJ Regan, note 3 above, at pp 125.
[8] This case is discussed in more detail in O Jessep and AJ Regan, note 3 above, at pp 125-27.
[9] This case is discussed in more detail in O Jessep and AJ Regan, note 3 above, at pp 128-30.
[10] This argument was in fact made by Kapi J in the case of State v Robert Kupara [1985] PNGLR 312 (at 315), but so far as I know has not been adopted in any other case. For critical comment, see O Jessep and AJ Regan, note 3 above, at pp 131-32.
[11] See Village Courts Act 1989, s 57.

[12] A point made some years ago by H McRae, “Reform of Family Law in Papua New Guinea - An Analysis of the Law Reform Commission’s Working Paper No 9” (unpublished draft, 1979), at note 22.
[13] For comment, see O Jessep and AJ Regan, note 3 above, at pp 134-137. See also B Sakora, note 2 above, at pp 265-66; and Amet J in Madaha Resena v State of Papua New Guinea [1991] PNGLR 174, at 190-91.
[14] See D Srivastava and D Roebuck, “The Reception of the Common Law and Equity in Papua New Guinea: The Problem of the Cut-Off Date”, (1985) 34 International and Comparative Law Quarterly 850; and O Jessep and AJ Regan, note 3 above, at pp 137-139.
[15] See eg Booth v Booth (1934-35) 53 CLR 1 (High Court of Australia); and Murray v Brown River Timber Company Ltd [1964] P&NGLR 167 (Supreme Court of Papua and New Guinea). For discussion, see especially R O’Regan, ‘The Common Law and English Statutes in the Territory of Papua and New Guinea’, (1971) 45 Australian Law Journal 297, which appears in virtually identical form in Ch 4 of R O’Regan, The Common Law in Papua and New Guinea (Law Book Co, Sydney 1971).
[16] For discussion of this and earlier cases, see O Jessep and AJ Regan, note 3 above, at pp 139-43.
[17] Cf Kidu CJ, who made similar comments in the later Supreme Court decision of State v Uniss Kamugaip [1985] PNGLR 278 (at 280).
[18] For that matter, might not the Defamation Act (Ch 293) also have been relevant (see below)?
[19] For discussion of bride price, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), Ch 2.
[20] See A Allott, New Essays in African Law (London, Butterworths 1970), Ch 7, for a discussion of some of these elements in the African context.
[21] Early discussion and draft Underlying Law Bills are contained in PNG Law Reform Commission, Working Paper No 4, “Declaration and Development of the Underlying Law” (Port Moresby, 1975); and PNG Law Reform Commission, Report No 7, “The Role of Customary Law in the Legal System” (Port Moresby, 1977). For a detailed discussion of the Act of 2000, see J Corrin Care and J Zorn, “Legislating Pluralism – Statutory ‘Developments’ in Melanesian Customary Law”, (2001) 46 Journal of Legal Pluralism 49-101.
[22] Note that by s 16(1), a question as the existence or content of a rule of customary law is a question of law and not a question of fact).
[23] Note however s 17(1)(c) in relation to questions of succession.
[24] See also the definition of “underlying law” in Sch 1.2 of the Constitution.
[25] See also J Corrin Care and J Zorn, note 21 above, at pp 91-92.
[26] See PNG Law Reform Commission, Report No 7, “The Role of Customary Law in the Legal System” (Port Moresby, 1977), at p 35.
[27] See J Corrin Care and J Zorn, note 21 above, at pp 81-84.

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