The courts are faced with the challenge develop new rules of law based on customs of PNG.
Section 9 of the Constitution sets out the laws of the country in a hierarchical order of importance, the Constitution being the supreme law is at the top and the underlying law at the bottom. The obvious question is what has underlying law got to do with a discussion on the position of customary law in the legal of system of the country? The short answer is, much.
Let us have a look at Section 21 of the Constitution that specifies the purpose of Schedule 2. Subsection (1) of s21 sets out the purpose of Schedule 2, namely, that together with the Act of the Parliament referred to in s20 they are to assist in the development of our indigenous jurisprudence that is adapted to the changing circumstances of the country. To realize this purpose, subsection (2) of the section then provides that a Law Reform Commission must be established in accordance with Schedule 2 which further imposes “certain special responsibilities” on the National Judicial System (particularly on the Supreme Court and the National Court) and on the Law Reform Commission.
Schedule 2.1 provides for the adoption, categorical application, and enforcement of custom as part of the underlying law, except where any such custom is- (a) Inconsistent with a Constitutional Law (this Constitution, any law altering it or an Organic Law, Sch.1.2, meaning of certain expressions), or a stature; (b) Or repugnant to the general principles of humanity (cf. Section 3 Customs Recognition Act Ch 19-courts not to recognize if it would result in injustice or not be in public interest, or not be in best interest of child under 16). Schedule 2.1.1 further envisages an Act of the Parliament that may provide for: (a) The proof and pleading of custom for any purpose, (b) The way in which or for the purposes for which, custom may be recognized, applied, or enforced, and (c) The resolution of conflicts of custom.
Section 4(1) of the Act says, consistently with Sch.2.1(1) and Sch.2.2(1), that the customary law and the common law shall be adopted and applied as part of the underlying law. Section 4(2) then states that the customary law shall apply unless:- (a) 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 established by the Constitution; or (b) its application and enforcement would be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.
Additionally the first reference omits reference to “a Constitutional Law” (sch.2.1 (1)) but it is captured in the definition of “written law” which means the laws as stipulated in Section 9 of the Constitution. The second and third qualifications are transposed from Sch.2.3 (a) & (b) which prescribe the National Goals and Directive Principles etc and the “Basic Rights” [s32 Right to Freedom & s33 Other rights and freedoms] as two of the factors which the Supreme Court and the National Court should take into account when formulating an appropriate rule as part of the underlying law.
The “repugnancy” test of Sch.2.1 (2) is completely left out. Repugnancy test cannot be applied under the Underlying Law Act 2000. Section 3(2) of the Act says that “the principles and rules of customary law shall be applied with the qualifications and to the conditions as set out in this Act”. This test cannot be applied under this Act. Recourse, however, could be had to Section 3 of the Customs Recognition Act but then we have to be satisfied with “injustice” and “public interest” tests.
By virtue of Sch 2.2 Constitution, custom is superior to the common law and equity: Re Somare per Kapi DCJ at 287; Madaha Resena v PNG: Re Fisherman Island  PNGLR 174. To the extent that a rule of the common law and equity conflicts, or is inconsistent with, custom, then local custom will prevail. The task then is for the court and the lawyers to consider custom first before proceeding to examine common law. However, custom is still underdeveloped whereas the principles of common law and equity are well developed over many centuries. The tendency of the courts and lawyers is to resort to the common law and equity instead of searching for the relevant customary law.
The question then arises as to whether there should be a dual system of jurisprudence developed; one which would apply to the majority of our people who are still governed by customary norms and traditional values and another to apply to the modern elite citizens and non-citizens and the modern institutions who might consider themselves unresolved today. For its part, the Supreme Court has not satisfactorily resolved the issue either (see different views expressed by Kapi DCJ and Amet J in Madaha Resena v PNG).
Developing the underlying law “rule”, Schedule 2.3 of the Constitution imposes the duty of the courts, in particular the National and Supreme Courts, to develop the underlying law (that is, customary law and the common law and equity of England adopted under ss 20-21 of the Constitution and also the new Underlying Law Act 2000) where there is no role of law on a particular matter.
The court is required to have regard to the various relevant statutory provisions, including the Constitution, decisions of the courts of PNG as well as those countries which have similar legal systems to that of PNG, and the National Goals and Directive Principles in the Constitution. The court is also required to have regard to the circumstance of the country from time to time. From reading Sch 2.3, the court is given a wide discretion to have regard to all relevant laws and the prevailing political, social and economic circumstances of the country (see the approach adopted in the Supreme Court in Re Somare.
The government must provide more resources to the courts to pursue this Constitutional legal interest.