Customary Law, One Type of Law in Papua New Guinea

The Constitution (PNG), Schedule 2.1 (1) provides that custom is adopted adn shall be applied and enforce as part of the Underlying law, that, the law that applies when there is no legislation governing the particular legal matter under consideration. It defines custom as ' the customs and usages of indigenous inhabitants of the contry 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' (Constitution, Sch.1.2; Interpretation Act, c2, s3.

This definition recognises that custom is not static. It develops and changes in response to the condition obtaining in society. It has been suggested that custom is capable of developing to extend to modern institutions and properties. Modern education, religion, urbanisation and monetisation of economy are some of the factors that account for changes in custom.

Rules of customs (or customary law) are not usually found in written form. Accordingly, they are likely to be imprecise, flexible and often difficult to discover or prove, These rules are proved as though they are matters of fact, mainly by oral evidence or testimony, afresh in each case. However, in this regard, a court is not bound to observe strict legal procedure or to apply technical rules of evidence. It can admit and consider such relevant evidence as is available, including hearsay evidence and expression of opinion. The sources which a court may refer include books, treaties, reports and statements by Local Government Council.

Customs is not applicable to the extend that it is inconsistent with a constitutional law or a statute or repugnant to the general principles of humanity (Constitution, sch.2.1(2)). However, customs, takes precedence over common law and equity. Also, there is an obligation on the Supreme and National Courts to ascertain appropriate rules of custom before developing and formulating new rules of the underlying law.

Further more, in any particular case or context, custom is not to be recognised and enforced by a court if doing so:

(1) would result, in the opinion of the court, in injustice or would be in the public interest, or

(2) in a case involving the reasonableness or otherwise of an act, default or omission by a person, or

(3) deciding the reasonableness or otherwise of an excuse, or

(4) deciding whether to proceed to conviction of a guilty party, or

(5) determining the penalty to be imposed on an guilty party.

There is also a discretion in the Court to take custom into account where the court is of the opinion that by not doing so injustice will or may be done to a person.

Custom has a slightly wider application in civil cases than in criminal cases. The Customs Recognition Act, section 5 provides that custom may be taken into account in civil cases in relation.many issues.