What Is the Underlying Law, and Where Does Custom Fit?

This is the feature of Papua New Guinean law that most surprises lawyers trained elsewhere. Custom here is not evidence of what people do. It is law, adopted as such by the Constitution.

Sections 20 and 21 — the instruction

Section 20 of the Constitution directs that an Act of Parliament shall declare the underlying law and provide for its development. Until such an Act does so, the underlying law and its manner of development are as prescribed by Schedule 2. Section 20(3) also adopts certain pre-Independence statutes as Acts of Parliament and subordinate enactments, as prescribed by that Schedule.

Section 21 states the purpose plainly: to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea. It imposes special responsibilities on the National Judicial System — particularly the Supreme Court and the National Court — and establishes a Law Reform Commission.

The Act contemplated by section 20 is the Underlying Law Act 2000.

Part 1 of Schedule 2 — custom

Three points follow. First, adoption is automatic — no statute is needed to make a custom law. Second, the exclusions are limited to the extent of the inconsistency or repugnancy; a custom is not discarded wholesale because one aspect of it offends. Third, the machinery for proving custom in court is statutory — principally the Customs Recognition Act (Chapter 19).

Part 2 — the adopted common law

Sch.2.2 adopts the principles and rules of common law and equity in England as they stood immediately before Independence Day, as part of the underlying law — except to the extent that they are:

1. inconsistent with a Constitutional Law or a statute; or
2. inapplicable or inappropriate to the circumstances of the country from time to time; or
3. in their application to a particular matter, inconsistent with custom as adopted by Part 1.

Paragraph (c) is the crucial ordering rule: where custom and the adopted common law conflict on a particular matter, custom prevails. Paragraph (b) is dynamic — appropriateness is judged by the circumstances of the country from time to time, and Sch.2.2(4) directs that this be assessed by reference to the circumstances of the case, including the time and place of the relevant transaction, act or event.

Sch.2.2(3) freezes the reception date: later English statutory revision of those principles does not follow them into Papua New Guinea. Sch.2.2(2) adopts the Royal Prerogative rules, except any power to declare martial law, to grant letters of denization, or to do anything for which a Constitutional Law or an Act provides.

Part 3 — developing an underlying law

Sch.2.3 addresses the gap case. If in a matter before a court there appears to be no rule of law applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System — particularly the Supreme and National Courts — to formulate an appropriate rule as part of the underlying law, having regard:

• in particular, to the National Goals and Directive Principles and the Basic Social Obligations;
• to the Basic Rights in Division III.3;
• to analogies from relevant statutes and custom;
• to the legislation and relevant decisions of any country the court considers has a similar legal system; and
• to relevant decisions of courts that have exercised jurisdiction in the country,

and to the circumstances of the country from time to time.

Sch.2.3(2) provides for referral: where such a question arises in a court other than the Supreme Court, and is not trivial, vexatious or irrelevant, the National Court may refer it to the Supreme Court, and any other court (not being a village court) shall refer it.

Sch.2.4 imposes a further duty: to ensure that, with due regard to consistency, the underlying law develops as a coherent system appropriate to the circumstances of the country — except so far as it would not be proper to do so by judicial act.

What this means in a real dispute

• Custom can decide the case — particularly on land, marriage, compensation and inheritance.
• Custom must be proved as a matter of fact in the particular area, under the Customs Recognition Act.
• Custom loses to statute and to the Constitution, and to the general principles of humanity, but only to the extent of the conflict.
• Custom varies profoundly between provinces and language groups. A statement about “PNG custom” in general is almost always too broad to be useful.