The law of
Papua New Guinea
Papua New Guinea (abbreviated PNG; , ; tpi, Papua Niugini; ho, Papua Niu Gini), officially the Independent State of Papua New Guinea ( tpi, Independen Stet bilong Papua Niugini; ho, Independen Stet bilong Papua Niu Gini), is a country i ...
consists of the Constitution, ordinary
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
s enacted by
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
or adopted at independence from overseas (together with their pendant regulations) and
judge-made law
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
.
Constitution
The Constitution is "
autochthonous
Autochthon, autochthons or autochthonous may refer to:
Fiction
* Autochthon (Atlantis), a character in Plato's myth of Atlantis
* Autochthons, characters in the novel ''The Divine Invasion'' by Philip K. Dick
* Autochthon, a Primordial in the ' ...
" (a constitutional term of art also used in Malaysia and meaning, literally, "aboriginal," indicating that
legal continuity with the former metropolitan power was severed and the Constitution enacted by a
constitutional convention of the newly
independent state
Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the statu ...
—
as in the US after the American Revolution — rather than by an
imperial parliament as in the case of the Constitutions of
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
and
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
). It is "
entrenched," meaning that its provisions overbear any ordinary
statutory
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
enactments which the courts find to be inconsistent with it, in accordance with the constitutional authority of ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, U.S. Supreme Court case that established the principle of Judicial review in the Uni ...
'', the case which established the principle of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
in the
USA
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, the first modern state to have an entrenched constitution.
The Constitution contains a select number of
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
:
* the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
,
liberty
Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom.
In modern politics, liberty is understood as the state of being free within society fr ...
and
security of person Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, th ...
and protection of the law
* the right to take part in
political activities
* freedom from inhuman treatment and
forced labour
Forced labour, or unfree labour, is any work relation, especially in modern or early modern history, in which people are employed against their will with the threat of destitution, detention, violence including death, or other forms of ex ...
*
freedom of conscience
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency by ...
,
expression
Expression may refer to:
Linguistics
* Expression (linguistics), a word, phrase, or sentence
* Fixed expression, a form of words with a specific meaning
* Idiom, a type of fixed expression
* Metaphorical expression, a particular word, phrase, o ...
,
information
Information is an abstract concept that refers to that which has the power to inform. At the most fundamental level information pertains to the interpretation of that which may be sensed. Any natural process that is not completely random ...
,
assembly
Assembly may refer to:
Organisations and meetings
* Deliberative assembly, a gathering of members who use parliamentary procedure for making decisions
* General assembly, an official meeting of the members of an organization or of their representa ...
and
association
Association may refer to:
*Club (organization), an association of two or more people united by a common interest or goal
*Trade association, an organization founded and funded by businesses that operate in a specific industry
*Voluntary associatio ...
* freedom of
employment
Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
and
movement
Movement may refer to:
Common uses
* Movement (clockwork), the internal mechanism of a timepiece
* Motion, commonly referred to as movement
Arts, entertainment, and media
Literature
* "Movement" (short story), a short story by Nancy Fu ...
* the
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
and
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
During the period of
self-government
__NOTOC__
Self-governance, self-government, or self-rule is the ability of a person or group to exercise all necessary functions of regulation without intervention from an external authority. It may refer to personal conduct or to any form of ...
from 1973 to 1975 during which the Constitution was drafted and arrangements for
full sovereignty were made it was contemplated that as with most former colonies and
trust territories
United Nations trust territories were the successors of the remaining League of Nations mandates and came into being when the League of Nations ceased to exist in 1946. All of the trust territories were administered through the United Natio ...
in the
British Commonwealth
The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the Co ...
Papua New Guinea would wish to have its own
indigenous
Indigenous may refer to:
*Indigenous peoples
*Indigenous (ecology), presence in a region as the result of only natural processes, with no human intervention
*Indigenous (band), an American blues-rock band
*Indigenous (horse), a Hong Kong racehorse ...
head of state
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
, and the Constitution specifically refers to the "Head of State" rather than to the
King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
or
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
. In the event,
PNG chose to retain
the monarchy and there have been no serious moves to alter that arrangement. In practice, the
governor-general
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
, chosen by free
vote
Voting is a method by which a group, such as a meeting or an electorate, can engage for the purpose of making a collective decision or expressing an opinion usually following discussions, debates or election campaigns. Democracies elect holde ...
of sitting members of
parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
, functions as a
de facto
''De facto'' ( ; , "in fact") describes practices that exist in reality, whether or not they are officially recognized by laws or other formal norms. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by la ...
non-executive
president
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
.
Criminal proceedings
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or i ...
are brought in the name of "The State" rather than "The King" or "R."; the King's
effigy
An effigy is an often life-size sculptural representation of a specific person, or a prototypical figure. The term is mostly used for the makeshift dummies used for symbolic punishment in political protests and for the figures burned in certai ...
does not appear on
banknotes or coins; apart from a few institutions having a royal warrant, such as the
Royal Papua New Guinea Constabulary
The Royal Papua New Guinea Constabulary (RPNGC) is a national police force with jurisdiction throughout all of Papua New Guinea.
History
The RPNGC was formed from two predecessor bodies that existed prior to the independence of Papua New Guinea. ...
and the
Royal Papua Yacht Club, the formal link with
the monarchy is largely invisible, and there is little general awareness of it.
"Underlying law"
The Constitution declares the "underlying law" — that is, the separate
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of Papua New Guinea — to consist of the Constitution, "
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
" derived from the "custom" of the
various peoples of Papua New Guinea, and the
common law of England
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
as it stood at the date of Papua New Guinea's independence on 16 September 1975. That is to say, decisions of the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
, the
Judicial Committee of the Imperial Privy Council, not being part of the
common law of England
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
, and indeed of the pre-independence courts of Papua New Guinea itself are not part of Papua New Guinea law; but decisions of the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
, the English
Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
, the English
King's Bench
The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions.
* Court of King's Bench (England), a historic court court of commo ...
and other
English courts
The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.
The United Kingdom does not have a ...
up until Papua New Guinea's independence are.
The "
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
" portion of the "underlying law" was contemplated by the original framers of the Constitution as deriving from the regional customs of the country in the same way as the
common law of England
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
(that law which was "common" to the whole country) had done prior to 1189, deemed to be "
time immemorial
Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...
" in
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
. In practice the courts have found great difficulty in applying traditional custom in a modern
legal system
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...
and the development of the
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
according to indigenous
Melanesian
Melanesian is the adjectival form of Melanesia. It may refer to:
* Melanesians
* Melanesian mythology
* Melanesian languages In linguistics, Melanesian is an obsolete term referring to the Austronesian languages of Melanesia: that is, the Oceani ...
conceptions of
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
and
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
has been less thorough than may have been anticipated in 1975. In 2000 the
National Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
enacted the ''Underlying Law Act'' 2000
[Jean Zorn and Jennifer Corin Care; Everything Old is New Again: The Underlying Law Act of Papua New Guinea, LawAsia Journal ]002 002, 0O2, O02, OO2, or 002 may refer to:
Fiction
*002, fictional British 00 Agent
*''002 Operazione Luna'',
*1965 Italian film
*Zero Two, a ''Darling in the Franxx'' character
Airports
*0O2, Baker Airport
*O02, Nervino Airport
Astronomy
*1996 ...
61-97 which purports to
mandate greater attention by the courts to custom and the development of
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
as an important component of the underlying law. Thus far the statute appears not to have effected such a result.
Statutes
Statute law is very largely adopted from overseas jurisdictions. For example, the ''
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
'' is adopted from
Queensland
)
, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, established_ ...
; the ''Rules of Court'' are those of
New South Wales
)
, nickname =
, image_map = New South Wales in Australia.svg
, map_caption = Location of New South Wales in AustraliaCoordinates:
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, es ...
; the ''
Matrimonial Causes Act'' is the extremely old
English statute of 1857 which had been in force in the
Australian States
The states and territories are federated administrative divisions in Australia, ruled by regional governments that constitute the second level of governance between the federal government and local governments. States are self-governing pol ...
before the federal ''Divorce Act'', 1964; the ''Companies Act'' ch 146 was substantially the English
Companies Act 1948
The Companies Act 1948 (11 & 12 Geo.6 c.38) was an Act of the Parliament of the United Kingdom, which regulated UK company law. Its descendant is the Companies Act 2006.
Cases decided under this Act
*''Bushell v Faith'' 970AC 1099
*''Scottish ...
; it was replaced by the ''Companies Act'', 1997, adopted from
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
.
Courts
The
judicial system
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
consists of
village
A village is a clustered human settlement or community, larger than a hamlet but smaller than a town (although the word is often used to describe both hamlets and smaller towns), with a population typically ranging from a few hundred to ...
magistrates
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s, which remain the only court remaining the administrative responsibility of the
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
,
district courts in
urban centres presided over by stipendiary
magistrate
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
s, the National Court which is the superior trial court and the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
which is functionally an
appellate division of the National Court: it is not separately constituted, its Chief Justice is also the Chief Justice of the National Court and its bench consists of National Court judges sitting as an
ad hoc
Ad hoc is a Latin phrase meaning literally 'to this'. In English, it typically signifies a solution for a specific purpose, problem, or task rather than a generalized solution adaptable to collateral instances. (Compare with ''a priori''.)
Com ...
appellate
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
tribunal. The
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
is the final
court of appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
: an appeal lay from the pre-independence Supreme Court to the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
(but not directly to the
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
); this was abolished at independence. The
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
also has jurisdiction under the Constitution to give
advisory opinion
An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some cou ...
s, called "references," on the
constitutionality
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of
legislation
Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...
. In addition to its function as a
trial court
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
, the National Court also functions as a
court of disputed returns
The Court of Disputed Returns is a court, tribunal, or some other body that determines disputes about elections in some common law countries. The court may be known by another name such as the Court of Disputed Elections. In countries that derive ...
hearing "
Electoral Petitions" by unsuccessful candidates for
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
; Leadership
Tribunal
A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title.
For example, an advocate who appears before a court with a single ...
s hearing cases of alleged misconduct in office referred by the
Ombudsman
An ombudsman (, also ,), ombud, ombuds, ombudswoman, ombudsperson or public advocate is an official who is usually appointed by the government or by parliament (usually with a significant degree of independence) to investigate complaints and at ...
Commission consist of one National Court judge and two District Court
magistrate
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
s.
The
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
has a special responsibility for developing the "underlying law," i.e. the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of Papua New Guinea, having resort to those rules of local custom in various
regions of the country which may be taken to be common to the whole country. The responsibility has been given additional express warrant in the Underlying Law Act, 2000 which purports to mandate greater attention by the courts to custom and the development of
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
as an important component of the underlying law. In practice the courts have found great difficulty in applying the vastly differing custom of the many
traditional societies of the
country
A country is a distinct part of the world, such as a state, nation, or other political entity. It may be a sovereign state or make up one part of a larger state. For example, the country of Japan is an independent, sovereign state, while the ...
in a
modern legal system and the development of the
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
according to
indigenous
Indigenous may refer to:
*Indigenous peoples
*Indigenous (ecology), presence in a region as the result of only natural processes, with no human intervention
*Indigenous (band), an American blues-rock band
*Indigenous (horse), a Hong Kong racehorse ...
Melanesian
Melanesian is the adjectival form of Melanesia. It may refer to:
* Melanesians
* Melanesian mythology
* Melanesian languages In linguistics, Melanesian is an obsolete term referring to the Austronesian languages of Melanesia: that is, the Oceani ...
conceptions of
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
and
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
has been less thorough than may have been anticipated in 1975; the Underlying Law Act does not yet appear to have had significant effect.
Advocacy follows the conventions of the
English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, bee ...
world and is
adversarial rather than
inquisitorial
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
;
German law
The law of Germany (german: das Recht Deutschlands), that being the modern German legal system (german: Deutsches Rechtssystem), is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of G ...
was wholly displaced by
Anglo-Australian law in the former
German New Guinea
German New Guinea (german: Deutsch-Neu-Guinea) consisted of the northeastern part of the island of New Guinea and several nearby island groups and was the first part of the German colonial empire. The mainland part of the territory, called , ...
after 1914 when Australia seized the Territory and there are no traces of it in modern Papua New Guinea.
The
Chief Justice of Papua New Guinea
The Supreme Court of Papua New Guinea has been the highest court of Papua New Guinea since 16 September 1975, replacing the pre-Independence Supreme Court (corresponding to the post-Independence National Court) and the overseas appellate tribunal ...
is The Honourable
Sir Gibbs Salika, KBE.
Despite attempts to incorporate
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
, the writ of the 'National Courts' is felt less keenly in the more remote
village
A village is a clustered human settlement or community, larger than a hamlet but smaller than a town (although the word is often used to describe both hamlets and smaller towns), with a population typically ranging from a few hundred to ...
s. Victims of
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
can choose to have their cases heard in the national courts but this means transporting all those involved to the nearest
town
A town is a human settlement. Towns are generally larger than villages and smaller than cities, though the criteria to distinguish between them vary considerably in different parts of the world.
Origin and use
The word "town" shares an ori ...
. Additionally, national courts hand down
sentences
''The Four Books of Sentences'' (''Libri Quattuor Sententiarum'') is a book of theology written by Peter Lombard in the 12th century. It is a systematic compilation of theology, written around 1150; it derives its name from the ''sententiae'' o ...
that do not generally compensate the victim directly.
Melanesian
Melanesian is the adjectival form of Melanesia. It may refer to:
* Melanesians
* Melanesian mythology
* Melanesian languages In linguistics, Melanesian is an obsolete term referring to the Austronesian languages of Melanesia: that is, the Oceani ...
custom tends to see
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
as an offence against the victim and their
family
Family (from la, familia) is a Social group, group of people related either by consanguinity (by recognized birth) or Affinity (law), affinity (by marriage or other relationship). The purpose of the family is to maintain the well-being of its ...
and
community
A community is a social unit (a group of living things) with commonality such as place, norms, religion, values, customs, or identity. Communities may share a sense of place situated in a given geographical area (e.g. a country, village, tow ...
, more than an offence against the
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
. The affected family require compensation in the form of
money
Money is any item or verifiable record that is generally accepted as payment for goods and services and repayment of debts, such as taxes, in a particular country or socio-economic context. The primary functions which distinguish money are as ...
or
goods
In economics, goods are items that satisfy human wants
and provide utility, for example, to a consumer making a purchase of a satisfying product. A common distinction is made between goods which are transferable, and services, which are not tran ...
. In remote areas, Village Courts are the primary source of
formal justice. The Village Courts grew from colonial systems, and were most recently redefined through the Village Courts Act of 1989. Five types of officials can be appointed through the
provincial government
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, ...
s, with senior officer requiring gazetting at the national level through the Village Courts and Land Mediation Secretariat. The Village Court Act establishes the court's
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
, but includes
general jurisdiction
{{Globalize, article, USA, 2name=the United States, date=December 2010
A court of general jurisdiction is a court with authority to hear cases of all kinds – criminal, civil, family, probate, and so forth.
United States
All federal courts ar ...
over any events that would disturb order in the
community
A community is a social unit (a group of living things) with commonality such as place, norms, religion, values, customs, or identity. Communities may share a sense of place situated in a given geographical area (e.g. a country, village, tow ...
. In practice, the Village Court's accessibility, especially in remote areas, creates tremendous pressures for actors to exceed their
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
in order to provide some
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
to isolated communities that would otherwise be isolated from assistance.
In remote
regions
In geography, regions, otherwise referred to as zones, lands or territories, are areas that are broadly divided by physical characteristics (physical geography), human impact characteristics (human geography), and the interaction of humanity and t ...
in which few people have
paid employment it might seem that large
fines Fines may refer to:
* Fines, Andalusia, Spanish municipality
* Fine (penalty)
* Fine, a dated term for a premium on a lease of land, a large sum the tenant pays to commute (lessen) the rent throughout the term
*Fines, ore or other products with a s ...
would be unlikely to be paid. The system is usually extremely effective; many people will work in town at some stage in their life and then have savings. Fines are levied against the transgressor and
family
Family (from la, familia) is a Social group, group of people related either by consanguinity (by recognized birth) or Affinity (law), affinity (by marriage or other relationship). The purpose of the family is to maintain the well-being of its ...
, who then join together to pay the fine. The victim's family generally feel satisfied that they have received
restitution
The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
when they receive the fine, reducing the risk of subsequent fighting. Having paid the fine, the transgressor's family usually make very sure that he behaves and may well make him slowly work to pay them back. The Committee Man is paid a fee for his time, generally by the
person bringing the case.
In a remote environment with no
police
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
to back up and enforce his decision, the Committee Man needs considerable wisdom and diplomacy to make his verdict stick. Good Committee Men are impressive individuals and valuable sources of information about their local communities.
The "Rooney Affair": An early crisis in relations between the executive and judiciary
The
independence of the judiciary Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
has been a particular problem in
developing countries
A developing country is a sovereign state with a lesser developed industrial base and a lower Human Development Index (HDI) relative to other countries. However, this definition is not universally agreed upon. There is also no clear agreem ...
, though it was confirmed early in Papua New Guinea.
Papua New Guinea's Constitution purports to adopt the principle of the
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, enunciated in US
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
in an environment where the three branches of government are indeed separate, the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
not being responsible to the
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
. In
PNG as in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, the principle is in fact somewhat artificially defined simply to mean that the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
is independent from
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
interference, as established by the
English ''Bill of Rights'', 1689; however, the principle does not extend, as was established in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
during the early years of the
Australian federation
The Federation of Australia was the process by which the six separate British self-governing colonies of Queensland, New South Wales, Victoria, Tasmania, South Australia (which also governed what is now the Northern Territory), and Western A ...
, to preventing the courts from rendering
advisory opinion
An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some cou ...
s to the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
; nor are there any implications with respect to the
quasi-judicial
A quasi-judicial body is non-judicial body which can interpret law. It is an entity such as an Arbitration, arbitration panel or tribunal, tribunal board, that can be a public administrative agency but also a contract- or private law en ...
function of
administrative tribunals, also an issue at one time in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
(see
Separation of powers in Australia
The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation ...
).
The principle was quickly tested in Papua New Guinea. In 1979, four years after Independence, the then-Minister of Justice, Mrs
Nahau Rooney
Nahau Rooney (born in 1945 on Manus Island – died 15 September 2020 in Port Moresby) was a Papua New Guinean politician. From 1977 to 1987 she was a member of the newly founded post-independence National Parliament of Papua New Guinea.
Early ...
, wrote a widely circulated letter critical of what she perceived as a lack of sensitivity by the then entirely
expatriate
An expatriate (often shortened to expat) is a person who resides outside their native country. In common usage, the term often refers to educated professionals, skilled workers, or artists taking positions outside their home country, either ...
-personnel
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
to a "growing
national consciousness
National identity is a person's identity or sense of belonging to one or more states or to one or more nations. It is the sense of "a nation as a cohesive whole, as represented by distinctive traditions, culture, and language". National identity ...
": in particular Mrs Rooney was impatient with the purportedly excessively legalistic approach of the Bench to the indigenising of the laws of Papua New Guinea; she was also critical of a
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
Justice's enjoining of a
deportation
Deportation is the expulsion of a person or group of people from a place or country. The term ''expulsion'' is often used as a synonym for deportation, though expulsion is more often used in the context of international law, while deportation ...
order by the
Executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
. The then-
Chief Justice,
Sir William Prentice Sir William Thomas Prentice (1 June 1919 – 31 January 2004) was a Chief Justice of Papua New Guinea and a Justice of the Supreme Court of Papua New Guinea.
Early life and education
Prentice was born in Ermington, New South Wales, a suburb of Sy ...
, called a special sitting of the full bench to condemn the minister for what the court characterised as interference with
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
. Mrs Rooney responded by stating that she had "no confidence in the Chief Justice and other Judges....It appears that the foreign judges on the bench are only interested in administration of
foreign laws and not the feelings and aspirations of the
nation's political leaders." The court then convicted Mrs Rooney of
contempt
Contempt is a pattern of attitudes and behaviour, often towards an individual or a group, but sometimes towards an ideology, which has the characteristics of disgust and anger.
The word originated in 1393 in Old French contempt, contemps, ...
in respect of the initial letter and of scandalising the court in respect of the subsequent comments and sentenced her to eight months in
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, correc ...
. The
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
released her
on licence after she had served one day of her sentence and four judges including the
Chief Justice promptly resigned, a fifth having previously resigned over a related matter.
The vacancies were, after a period of some uncertainty, filled by the first national justices, the new Chief Justice
Buri Kidu Sir Buri Kidu, KBE (8 August 1945 – 30 January 1994) was the first national Chief Justice of Papua New Guinea.
Biography
Buri Kidu was educated at Toowoomba Grammar School, Toowoomba, Queensland, Australia, where he was School Captain , Mr Justice
Mari Kapi
Chief Justice Sir Mari Kapi (12 December 1950 – 25 March 2009) was a Papua New Guinean judge who served as the fourth Chief Justice of the Supreme Court of Papua New Guinea from 16 August 2003 until his retirement in 2008 due to health reasons ...
(who eventually succeeded Kidu CJ), and Acting Justice
Bernard Narokobi
Bernard Mullu Narokobi OBE (1943 – March 2010) was a Papua New Guinean politician, jurist, and philosopher. He was serving as the Papua New Guinean High Commissioner to New Zealand prior to his death. Between 1987 and 1997 he represented hi ...
, together with expatriate justices who had had long experience in Papua New Guinea as trial lawyers or magistrates.
Three considerable
ironies emerged in the long term from the Rooney Affair:
(1) The vigorous criticism of the Bench by a member of the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
(or indeed the general public) would certainly not have occasioned so drastic response by the judiciary in other
common law jurisdictions
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
such as
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
and the
USA
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
which also have a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
ally-guaranteed
right of freedom of expression.
(2) Notwithstanding the immediate departure of the old guard of
colonial
Colonial or The Colonial may refer to:
* Colonial, of, relating to, or characteristic of a colony or colony (biology)
Architecture
* American colonial architecture
* French Colonial
* Spanish Colonial architecture
Automobiles
* Colonial (1920 au ...
-era
expatriate
An expatriate (often shortened to expat) is a person who resides outside their native country. In common usage, the term often refers to educated professionals, skilled workers, or artists taking positions outside their home country, either ...
justices
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
and their replacement by national
justices
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
, the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
did not then undertake any radical new departures by way of indigenising Papua New Guinea
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
and indeed has been notably cautious in undertaking
judicial law reform by way of implementing
social policy
Social policy is a plan or action of government or institutional agencies which aim to improve or reform society.
Some professionals and universities consider social policy a subset of public policy, while other practitioners characterize soci ...
. And
(3) Since the Rooney Affair members of the Executive have been notably timorous in articulating criticism of the Bench, notwithstanding extensive overseas
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
permitting comment on the courts in countries with similar constitutional arrangements whose constitutions include near-identical guarantees of
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
and
freedoms
Political freedom (also known as political autonomy or political agency) is a central concept in history and political thought and one of the most important features of democratic societies.Hannah Arendt, "What is Freedom?", ''Between Past and F ...
to those contained in the Constitution of Papua New Guinea.
On the other hand, it must be said that legal commentators in the neighbouring
common law countries
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history ...
of
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
and
Malaysia
Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
are — to the extent that they are aware of events in Papua New Guinea — somewhat admiring of the extent to which Papua New Guinea's judiciary has maintained its
independence
Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the statu ...
as this is unusual in their political environments.
In 2006 the independence of the judiciary was briefly challenged when Sir
Arnold Amet
Sir Arnold Amet is a Papua New Guinean former politician and judge. He was a member of the National Parliament of Papua New Guinea from 2007 to 2012, representing the Madang Provincial seat. He was Minister for Justice and Attorney-General from ...
, the immediately retired
Chief Justice of Papua New Guinea
The Supreme Court of Papua New Guinea has been the highest court of Papua New Guinea since 16 September 1975, replacing the pre-Independence Supreme Court (corresponding to the post-Independence National Court) and the overseas appellate tribunal ...
, who was in the process of inaugurating a post-judicial political career, launched a series of articles in the Malaysian-owned newspaper ''
The National'' in which he politically challenged the deliberations of the court over which he had formerly presided with respect to a capital case which was then ''
sub judice
In law, ''sub judice'', Latin for "under a judge", means that a particular case or matter is under trial or being considered by a judge or court. The term may be used synonymously with "the present case" or "the case at bar" by some lawyers.
I ...
''. The newspaper was smartly reminded by the court that such challenge was likely to result in severe
sanctions, and Sir Arnold withdrew.
See also
*
Human rights in Papua New Guinea Papua New Guinea (PNG) is a constitutional parliamentary democracy with an estimated population of 6,187,591. Police brutality, provincial power struggles, violence against women, and government corruption all contribute to the low awareness of bas ...
*
Royal Papua New Guinea Constabulary
The Royal Papua New Guinea Constabulary (RPNGC) is a national police force with jurisdiction throughout all of Papua New Guinea.
History
The RPNGC was formed from two predecessor bodies that existed prior to the independence of Papua New Guinea. ...
Sources
*Weisbrot, D., Paliwala, A. and Sawyerr, A. ''Law and Social Change in Papua New Guinea'' (Sydney, 1982)
External links
Bruce Ottley, "Reconciling Custom (and) Modernity: Papua New Guinea's ''Underlying Law Act'', 2002
{{Oceania in topic, Law of