Customary Laws To Be Revived

The Constitutional Law Reform Commission (CLRC) launched three documents on the Underlying Laws of PNG, with focus on reviving the inclusion and use of Customary Laws on PNG’s legal system.

Following Independence, the Constitution gave Customary Laws a place in the country's legal system together with English Common Law forming what is known as Underlying Laws. However, the courts have mostly ignored customary laws and consider underlying law as almost entirely common law.

The CLRC launched the Underlying Law Status Report to the Parliament 2021, the Underlying Law Strategic Plan 2021 – 2031, and the Underlying Law Training Hand Book.

In 2000, the Parliament enacted the Underlying Law Act 2000, which requires the courts to look first to Customary Laws in developing the underlying law.

The status report on the Underlying Law is the Commission’s maiden report to Parliament, the first since 1975. It covers Indigenous Jurisprudence and what has been done to develop it between 175 and 2006 under the former Law Reform Commission.

The report also covers what CLRC has done between 2013 and 2021 and issues to be addressed moving forward.

The Underlying Law Strategic Plan 2021-2031 is built on lessons from 32 customary law recording projects ,three national Underlying Law conferences and several mini seminars the commission held between 2013 and 2019.

The Underlying Law Training Hand Book is part of the strategic plan and will be used to train and prepare field researchers to go out to rural communities and conduct field studies on custom.

At the launch, CLRC Secretary, Dr Mange Matui said not many know of what underlying law is, but it is provided for under section 9 of the Constitution.

“Customary Law is an important law, at the time when our forefathers came up with the constitution, they thought about underlying law and that custom is important for Papua New Guineans.

“How do we develop customs so that some of the values that we adapted through our custom and culture can be incorporated into our laws?” said Dr Matui.

He added that under schedule 2.1 of the constitution, there is also a provision for custom and is reflected in the Customs Recognition Act, which will be repealed in February 2022.

“Much of what is given under the customs recognition act is given under the Underlying Law Act 2000 that we must record our customs. So that some of these customs find their way into our laws though the case laws that are developed through the National Court and Supreme Court.

“That is why CLRC was brought into the equation and given a special mandate to develop the underlying law of Papua New Guinea.”

Attorney General and former CLRC Secretary, Dr Eric Kwa congratulated Dr Matui and the Underlying Committee team for the effort they put into recording customs.

“In our time and age, its written things that hold more value than our traditional way of communicating orally, because we lose a lot of ideas and vision and a lot of things that we need because we come from an oral culture.

“I am happy we have this bit of policy that personifies us and our direction in terms of where we go into the future.”

CLRC Commissioner, William Nakin said the launch of the three documents marks the genesis of CLRC’s commitment to fulfilling the vision of founding fathers and mothers to uphold the Melanesian way with modern developments.

“It is a journey on developing PNG Ways, or developing Melanesian Jurisprudence- legal system that reflects the culture and customs f PNG. This, I believe would give peace to our fore fathers and mothers that we are upholding our Melanesian ways in these modern times.”

Melissa Wokasup