Reform Issue 80 Autumn 2002
This article appeared on pages 22 - 25 & 70 - 71 of the original journal.

Reconciling Modernity & Tradition: PNG’s Underlying Law Act
by
Bruce Ottley

“Upholding our culture and beliefs is about our roots, our identity as true Papua New Guineans, from a traditional society that was handed down by our forefathers. Our village lifestyle must never be forgotten as we move into the new millennium. Our cultures and traditions must go side by side with the education we have gained so that we can unite them.” 
– Sir Michael Somare. 

On 13 April 2000, as Papua New Guinea was preparing to celebrate the 25th anniversary of independence, its Parliament took the most important step toward defining the country’s post-colonial legal system when it enacted the Underlying Law Act. During the colonial period (1884-1975), Britain and then Australia created distinct legal systems for the separate territories of Papua and New Guinea based, in part, on their own metropolitan legal systems. Included in those colonial legal systems were many of the principles and rules of the English common law and equity.

At independence in September 1975, Papua New Guinea’s Constitution directed Parliament to declare the underlying law for the new country. This was a mandate to establish rules for the development of the nation’s own common law. Until Parliament acted, the Constitution directed the courts to look to indigenous ‘custom’ and to the English common law when deciding cases. However, since lawyers and judges in Papua New Guinea are trained in the thinking and methods of the Anglo-Australian legal system, they have tended to seek solutions to problems in the English common law far more often than from their country’s own customary laws. Only the Village Courts, which do not involve lawyers or professional judges, consistently have applied custom rather than statutes or the common law to the disputes that villagers bring to them. However, with the passage of the Underlying Law Act, Papua New Guinea now has given customary law a formal, central role in its national legal system.

The Underlying Law Act is important not only for defining Papua New Guinea’s legal system, but also as part of a much broader debate taking place in the South Pacific islands. Throughout the region there is a search for ways to balance the pressures from the ‘modern’ and ‘global’ world – in which the island States sell their natural resources and from which they buy consumer products, as well as receive aid and investment – with demands to give greater recognition to the various forms of ‘traditional’ cultures and create ‘national’ identities. Because ‘modern’ and ‘traditional’ are not clearly defined categories into which individuals and societies can be separated, people like former Papua New Guinea Prime Minister Sir Michael Somare have stated that the two ‘must go side by side’. However, despite the view that these forces must be reconciled, they often exert conflicting tensions that affect all areas of life in the islands, including the legal systems.

Papua New Guinea’s Underlying Law Act has the potential to alter that country’s legal system and to serve as a model for the role that customary law can play in national legal systems. This article provides an overview of the provisions of that Act and examines briefly the debate over modernity and tradition and the attempt of Papua New Guinea’s Parliament to reconcile those forces in the Underlying Law Act. 

An overview of the Act

The Underlying Law Act (the Act) begins by stating that the sources of the country’s underlying law are ‘customary law’ and ‘the common law in force in England immediately before the 16th September, 1975’ (the date of independence).The principles and rules of the English common law on that date remain applicable in Papua New Guinea despite their modification by amendment or alteration by a statute in England, unless the modifying statute also is adopted in Papua New Guinea. The evolving nature of ‘customary law’ is reflected in its definition in the Act as 

‘… the customs and usages of the 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.’

Although both customary law and the English common law are part of the underlying law, the intent of the Act is to give customary law clear precedence in Papua New Guinea’s legal system. This is reflected in provisions stating that, when deciding a case, a court shall apply customary law unless the law is inconsistent with the Constitution or a written law. However, a court shall not apply a rule of the common law unless the rule is consistent with the Constitution, a written law or customary law, or is applicable to the circumstances of the country. Only after a principle or rule of customary law or common law has met these tests of applicability does it become part of the underlying law.

The Act places the duty on the courts to ensure that the underlying law ‘develops as a coherent system in a manner that is appropriate to the circumstances of the country’. To ensure this coherence, the Act creates an order of application of law and rules for formulation of law by the courts. The first source of law for a court in this hierarchy is written law. If written law does not apply to the subject matter of the dispute, a court must apply the underlying law. If the underlying law does not apply to the subject matter of the proceedings, a court must apply customary law which has not yet become part of the underlying law, unless the parties intended that customary law would not apply to the proceedings or the matter is unknown to customary law and cannot be resolved by analogy to a rule of customary law without causing injustice to one or more of the parties. Only if the underlying law and customary law do not apply to the subject matter of the proceedings may a court consider applying the common law.

The Act places a duty on the parties to a court proceeding to produce evidence to assist the court to decide whether to apply customary law, the common law or formulate a rule of underlying law. If the underlying law, customary law and the common law do not apply to the subject matter of the dispute, a court must formulate a rule, appropriate to the circumstances of the country, as part of the underlying law. In addition, if the Supreme Court or National Court determines that a rule of underlying law no longer is appropriate to the country, it may formulate a new rule as part of the underlying law. Whenever a court formulates a new rule of underlying law, it must consider the National Goals and Directive Principles and Basic Social Obligations established by the Constitution, the basic human rights guaranteed by the Constitution, analogies from relevant statutes and customary laws, and laws of foreign countries which are relevant to the proceedings.

If a court other than the Supreme Court or National Court formulates a rule of underlying law, a copy of the decision must be sent to the Chief Justice and to the Chairman of the Law Reform Commission. The Chief Justice may refer the decision to the National Court for review. The National Court may vary the decision and state what it considers to be the appropriate rule of the underlying law for the case. A person aggrieved by that decision may appeal to the Supreme Court. Similarly, if the Chairman of the Law Reform Commission considers that the decision of the lower court was inconsistent with the proper development of the underlying law, he or she may refer the matter to the National Court.

In an important break from the practice during the colonial period and since independence, the Underlying Law Act states that the question of the existence or content of a rule of customary law is a question of law which a court may decide on its own and not a question of fact which must be proved by the parties. However, when the application of customary law is an issue in a matter, counsel have a duty to help the court by calling evidence and obtaining information that will assist the court in determining the nature of the relevant rules of customary law and whether or not to apply those rules to the proceedings. In making a decision about the applicability of customary law, a court may consider the statements of the parties and other persons with knowledge about customary law, as well as books, articles and reports on the relevant customary law.

With marriages and business relationships now involving persons from different parts of Papua New Guinea, a question has arisen as to which customary law the court should apply in a matter if there is a conflict. Where the parties belong to different communities with different customary law rules on the subject, the Act directs the court to look to the particular customary law that the parties intended to govern the matter. If that cannot be determined, then the court must apply the customary law that is, in the court’s opinion, ‘most appropriate to the subject matter’. However, where the matter concerns a question of succession, the customary law of the community to which the deceased belonged applies – except with regard to interests in land, where the customary law of the place where the land is located applies.

Modernisation & tradition

The forces of modernisation and globalisation that have provoked so much controversy in the rest of the world also have been the subject of debate in the South Pacific islands. In recent decades the debate has focused on efforts aimed at nation-building and on preserving or changing the cultural traditions of the island states. However, this debate is not new – it dates from the beginning of the colonial period when ‘modernisation’ was one of the justifications for colonialism and the islands were pulled into the ‘global’ orbit of their distant colonial powers. The ideologies, ways of life and laws that were introduced in the name of modernity have had a lasting impact on the traditions and identities of the South Pacific island states.

Since independence, the desire to create modern states and respond to the demands of globalisation has resulted in the South Pacific islands modelling their political and economic systems on those of their former colonial powers. It also has meant the retention of much of the Western-style legal systems created during the colonial period. Equally important, many of the colonial attitudes toward what constitutes ‘law’, whether customary law is really ‘law’, and the relationship between Western law and customary law also have continued. 

Those who feel that the South Pacific islands must adjust to the realities of modernisation and globalisation view legal systems as a crucial means of creating the environment necessary to attract the international business community and foreign aid donors. Since Western law has been posited as the necessary link to economic, political and social development, supporters of modernisation seek to restrict the role of customary law to family relationships (for example marriage, divorce, adoption). At the same time, however, those who are concerned with preserving or regaining the distinctive cultural identities of the societies that constitute the island states emphasise the role tradition can play in these processes. They support giving customary methods of social regulation and dispute resolution a greater role in their state legal systems, and believe that this is a prerequisite to achieving the social and political stability necessary for advancement, even in Western terms.

Papua New Guinea’s Underlying Law Act is an attempt to reconcile the forces of modernity and tradition. By combining its Constitution, Acts of Parliament and the English common law with a formal recognition of customary law, Papua New Guinea seeks to create a national legal system that will satisfy the perceived needs of its modernised and globalised sectors while, at the same time, giving a major role to the traditions of its people. By enacting the Underlying Law Act, Papua New Guinea has set for itself an obligation that goes further than any other state in mandating the formal recognition of customary law within its national legal system.

The exact shape that Papua New Guinea’s legal system ultimately will take will be determined not only by the provisions of the Act but, more importantly, by the attitudes of lawyers and judges toward customary law and the English common law and their place in the country’s economic, political and social systems. As important as the Underlying Law Act is to Papua New Guinea’s legal future, it is impossible to ignore the 90 years of colonial history. During that time very specific attitudes toward customary law and the English common law developed which lingered after independence. The crucial question for Papua New Guinea is the extent to which its colonial history and attitudes will continue to define its post-colonial legal system.