Courts and Role of Custom

The burden on the courts is to recognize customary law, where it exists as law, in its decisions, and through the various judgments of judges, it can report these to the Head of State. Section 187 (1) says: “The Judges shall, at least once in each period of 12 months, at such times as are fixed by or under an Act of the Parliament or, subject to any such Act, by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, give to the Head of State, for presentation to the Parliament, a report on the work of the National Judicial System, with such recommendations as to improvement as they think proper.”

The judges are doing all they can to develop new laws in the best interest of PNG: “This trend can be seen both in cases dealing with the incorporation of custom into the law and also those which treat with new circumspection the introduction of the principles of common law.”  

Derrick Roebuck, a former Lecturer of Law at UPNG discusses several cases dealt with by the judges: State v. Paul Pokolou N 404 of 11 March 1983; Public Prosecutor v. Uname Aumane (1980) PNGLR 510; State v. Poning SC224 of 26 March 1982; Asi Burunge v. John Kaupa SC258 of 26 August 1983; State v. Toraram Lipirin N439 of 9 September 1983; State v Kopilyo Kipungi and others N437 of 18 October 1983, and Re James Allan Sannga SC255 of 3 June 1983.  These are now recognized as law made from custom.

The most extraordinary case is the decision of Bredmeyer J in Aundak Kupil v. State and Kauke Kensi v. State of 20 October 1983. In this case the court dealt with the actions for damages for injuries received by the plaintiffs in a motor accident, heard together by consent.

 “The driver had been convicted of dangerous driving causing grievous bodily harm to the plaintiffs, Before sentence he told the court that he had already paid compensation in respect of both plaintiffs: 87 pigs, 4 muruks (cassowaries) and K4 680. He was ordered to enter into a recognizance in the sum of K200 to keep the peace and be of good behavior bond for two years.”

The State did not use the customary compensation to argue for a reduction of damages, but worked with the courts and the counsel for plaintiff to settle this matter. After a lengthy consideration the court used the Constitutional provisions as its reference to recognize custom (sch.2.1) and the definition in sch 1.2.

It held that custom does not apply if inconsistent with a statute and the Customs Recognition Act c 19 referred to in sch. 2.1 (3). Payback killing for non-payment of compensation was inconsistent with a statute or Act of Parliament. In his judgment Bredmeyer J ruled that the plaintiff should get common law damages less the customary compensation:

“Customary compensation has its good or positive side which is in the public interest: it restores a broken relationship between two clans, it prevents a tribal fight, it assuage feelings of grief and anger, it compensates the clan for the loss of a member, the money stands in the place of the lost or injured member and can be used to buy a new wife, children, pigs or other wealth in his place. The payment itself, if mutually agreed upon, is in the public interest. But the bad or negative side of customary compensation is that it is enforced by murder or threat of murder which… is contrary to at least two of the fundamental rights in the Constitution and to the Criminal Code. The Waghi sanction to enforce customary compensation for a road death is definitely contrary to the public interest…I am not brash enough to think that my decision will immediately stop customary compensation payments for road deaths…(but) if followed other judges and by the State and the trust in out-of-court settlements, it will, in the long term situations discourage customary payments in where common law damages can be obtained and that is, I believe, in the public interest.”

The challenge that the courts have in developing the underlying law with the inclusion of custom is cumbersome. In the Preface to the Third Edition of Criminal Law and Practice of Papua New Guinea the editors recognize the question of using custom in the development of the underlying law:

“Custom is recognized and adopted as part of the underlying law subject to the conditions set out in Sch 2.1 of the Constitution. There are two types of custom. First, there are customs which apply amongst the 700-800 different linguistic and customary societies in this country. Secondly, there are customs which transcend territorial boundaries between individual clans and groups. The first category poses fewer difficulties when ascertaining a custom on a particular subject, the second category poses greater difficulties when ascertaining a common custom on a particular subject.”

“… In the last 25 years, the courts have considered customs of groups and societies and either approved or rejected those customs. Examples of rejected customs include the custom of pay-back killing because it is repugnant to the general principle[s] of humanity: Public Prosecutor v Apawa Keru [1985] PNGLR 85; Acting Public Prosecutor v Aia Moroi [1985] PNGLR 78; the custom of mutilating adulterous spouses because it is repugnant to the general principles of humanity: Public Prosecutor v Sidney Kerowa [1985] PNGLR 85; handing over of a child in reparation for a death because it is contrary to the law: The State v Joseph Kure [19910 PNGLR 404; and the custom of giving away young single girls as part of compensation for the death of a rival clansman: in Re Miriam Willingal (1999), N1873.”

The courts are giving statutory recognition of some of the customs. For example, the Criminal Law (Compensation) Act 1991 recognized customary compensation and other customs, which are practiced, recognized and regulated by the courts, such as bride price payments and polygamous marriages.