Melanesian Law Journal
The Elusive Role of Custom in the Underlying Law of Papua New Guinea
In what is now almost a quarter of a century since Independence, there has been no shortage of complaints about the lack of progress in developing an “indigenous jurisprudence” (the expression used in s 21(1) of the Constitution), that is, the failure of custom to achieve its rightful place as a primary source of the underlying law. Some early criticisms focused on the apparent ignorance or laziness or antipathy of expatriate lawyers and judges towards custom, and the failure of Parliament to pass the legislation contemplated in Sch 2.1(3) of the Constitution. Other analyses have referred to the quality and content of education given to Papua New Guinean lawyers, the assumed superiority of common law principles, and the reluctance of practising lawyers to look outside the confines of their common law training. In addition, technical problems of proving the existence of custom, and the lack of any consistent judicial methodology in dealing with issues of custom have been highlighted. Several years ago, the current Chief Justice of Papua New Guinea appeared to be stating a common view when he argued that the idea of an indigenous jurisprudence had become simply “meaningless rhetoric or cliché”, and that, instead, there still prevailed in the Papua New Guinea legal system “an umbilical cord of dependency upon principles of the Anglo-Australian common law and equity”.
It is not intended in this account to revisit or review these criticisms. Although each of the points mentioned may well be relevant and valid, even taken together they do not approach anything like a full explanation for the failure of custom to animate the underlying law in the manner which may have been anticipated by the Constitutional Planning Committee and the drafters of the Constitution. Instead, I wish to focus on the terms of the statutory scheme for the development of the underlying law, in Schedule 2 of the Constitution, as interpreted in several leading National and Supreme Court decisions. Analysis of these cases reveals a significant number of confusions and ambiguities, which are central rather than merely peripheral to the operation of the statutory scheme. For example, what does it mean to say that custom is “adopted” as part of the underlying law (Sch 2.1(2))? What tests must be satisfied before custom can be so adopted? Must such a custom be universal or at least very common before it can be considered for adoption? Can custom be relevant in a case except as part of the underlying law? What is the relationship between custom and common law as competing sources of the underlying law? How are issues of inconsistency to be identified and resolved (for instance, as between custom and statute, or custom and the common law)? What are the implications and subsequent precedent value of a decision to adopt custom (or, conversely, common law) in a particular case?
That difficulties of interpretation of this sort continue to arise and trouble the courts of Papua New Guinea after more than two decades of judicial consideration indicates that something is seriously wrong with the terms of the statutory scheme in Sch 2 of the Constitution. It is indeed likely that the very notion of the underlying law as outlined in Sch 2, with its peculiar mixture of extremely specific and very generalised elements, is essentially incoherent. If this is so, then it is hard to see how the problems identified can be resolved without radical legislative reform.
B. Constitutional and Statutory Provisions
By s 9 of the Constitution, the laws of Papua New Guinea consist of the Constitution and Organic Laws, Acts of the Parliament and Emergency Regulations, provincial laws, laws made or adopted by or under the Constitution or any of the above laws, and the underlying law. Section 20 states that until an Act of Parliament declares the underlying law of Papua New Guinea and provides for its development, the underlying law and the manner of its development shall be as prescribed by Sch 2 of the Constitution.
In Sch 1.2, the term “custom” is defined to mean:
“the customs and usages of indigenous inhabitants of the country 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
The wording of Sch 2.1 and 2.2(1) is sufficiently important to set out in detail:
“Sch 2.1 Recognition, etc., of custom.
(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.
(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
(3) An Act of the Parliament may -
(a) provide for the proof and pleading of custom for any purpose; and
(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and
(c) provide for the resolution of conflicts of custom.
Sch.2.2. Adoption of a common law.
(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that -
(a) they are inconsistent with a Constitutional Law or a statute; or
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1. ... ”
Schedule 2.3(1) states that where “there appears to be no rule of law that is applicable and appropriate to the circumstances of the country”, the courts (and in particular the Supreme Court and the National Court) have a duty to formulate an appropriate rule as part of the underlying law. In doing so, the court is to have regard to the National Goals and Directive Principles and Basic Social Obligations set out in the Preamble to the Constitution, the Basic Rights in the Constitution, analogies to be drawn from relevant statutes and custom, legislation and case law from countries with similar legal systems to that of Papua New Guinea, relevant decisions of Papua New Guinean courts at any time, and “the circumstances of the country from time to time”.
By Sch 2.4, the courts, and especially the Supreme Court and the National Court, have a duty
“to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act.”
Although Parliament has not since Independence passed any Act as contemplated in Sch 2.1(3), the pre-Independence Native Customs (Recognition) Act 1963 has been adopted, “subject to any Constitutional law”, as an Act of the Parliament by virtue of Sch 2.6 of the Constitution. For the purposes of this account, it will be helpful to set out here the terms of ss 3(1), 4 and 5 of this Act (now Ch 19 in the Revised Laws):
“3. Recognition of custom.
(1) Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context -
(a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or
(b) in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.
4. Criminal cases.
Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of –
(a) ascertaining the existence or otherwise of a state of mind of a person; or
(b) deciding the reasonableness or otherwise of an act, default or omission by a person; or
(c) deciding the reasonableness or otherwise of an excuse; or
(d) deciding, in accordance with any other law whether to proceed to the conviction of a guilty party; or
(e) determining the penalty (if any) to be imposed on a guilty party,
or where the court thinks that by not taking the custom into account injustice will or may be done to a person.
5. Civil cases.
Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to -
(a) the ownership by custom of or of rights in, over or in connexion with customary land or -
(i) any thing in or on customary land or -
(ii) the produce of, customary land,
including rights of hunting or gathering; or
(b) the ownership by custom of rights in, over or in connexion with the sea or a reef, or in or on the bed of the sea or of a river or lake, including rights of fishing; or
(c) the ownership by custom of water, or of rights in, over or to water, or
(d) the devolution of customary land or of rights in, over or in connexion with customary land, whether -
(i) on the death or on the birth of a person; or
(ii) on the happening of a certain event; or
(e) trespass by animals; or
(f) marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connexion with a marriage entered into in accordance with custom; or
(g) a transaction that -
(i) the parties intended should be; or
(ii) justice requires should be,
regulated wholly or partly by custom and not by law; or
(h) the reasonableness or otherwise of an act, default or omission by a person; or
(i) the existence of a state of mind of a person,
or where the court thinks that by not taking the custom into account injustice will or may be done to a person.”
Finally, s 7 of the Act allows the court in a situation of conflict of custom to adopt that system of custom, or make such other order, having regard to the “ordinary rules of the underlying law” (modified as may be necessary), as the justice of the case demands.
C. Limitations on the Recognition of Custom under Schedule 2.1
1. Restrictions in Constitution and in Customs Recognition Act (Ch 19)
It follows from the constitutional and statutory provisions outlined above that, in relation to a custom that appears to be relevant in a civil or criminal case (bearing in mind as well the limitations of ss 4 and 5 of the Customs Recognition Act (Ch 19)), there are potentially six grounds for refusing to adopt that custom as part of the underlying law. In other words, the adoption and enforcement of custom in a particular case is never automatic, but is rather the result of a complicated screening process. The six principal grounds (three from the wording of Sch 2.1 of the Constitution itself, and three from s 3 of the Customs Recognition Act) are the following:
(i) inconsistency with the Constitution;
(ii) inconsistency with a statute;
(iii) repugnancy to the general principles of humanity;
(iv) resulting in injustice;
(v) contrary to the public interest; and
(vi) contrary to the best interests of a child under 16 years of age.
It is not necessary or possible in this paper to examine each of these (often overlapping) grounds in detail. Some relatively simple examples of decisions or judicial statements relevant to each heading can however be given.
(i) inconsistency with the Constitution
In State v Kule  PNGLR 404, a defendant who had pleaded guilty to murder wished to have taken into account, in mitigation of sentence, that he was obliged by custom to make compensation by handing over one of his young daughters to the relatives of the deceased. Doherty J (at 406-407) refused to recognise such a custom on several grounds, including that it was a practice analogous to slavery or servitude, and thus prohibited by s 253 of the Constitution. The case of Re Wagi Non  PNGLR 84 provides another example. There, a husband had left his wife and her four children in the care of his relatives when he travelled to another province to seek employment. After he had been absent for some years without making contact with them, the wife began a new relationship. Following complaint by the husband’s relatives, she was subsequently imprisoned for failure to meet a Village Court order for payment of compensation. She was freed by the National Court, on the basis that the custom in question infringed the equality and non-discrimination provisions of s 55 of the Constitution. A similar result, on similar reasoning, was reached in a case involving a widow who outraged her deceased husband’s relatives by beginning a new relationship (Re Kepo Raramu  PNGLR 486). In Re Willingal (1997) N 1506, Injia J refused to accept a custom whereby an unwilling woman was to be given in marriage as part of a complicated compensation settlement between two kin groups. A custom of this sort, according to the court, was objectionable on many grounds, including that of being in breach of s 55 (at 48-49), and also amounted to a breach of her rights of freedom under s 32 of the Constitution (47-48). The court’s general approach to the issue appears in the following passage (at 51-52, 54-55):
“The traditional customs of the people of Minj like the rest of PNG have existed from time immemorial and they serve complex value systems which only they themselves best know. It is not easy for any outsider to fully understand the customs and the underlying values and purposes they serve. Any outsider including the modern courts must not be quick to extract those customs and their values and pass judgments on their soundness or otherwise. ... But it is clear to me that the framers of our Constitution and modern day legislators were thinking about a modern PNG based on ethnic societies whose welfare and advancement was based on the maintenance and promotion of good traditional customs and the discouragement and elimination of bad customs as seen from the eyes of an ordinary modern Papua New Guinean. No matter how painful it may be to the small ethnic society concerned, such bad custom must give way to the dictates of our modern national laws.”
(ii) inconsistency with a statute
The general problem of determining when a custom is inconsistent with a statute will be discussed later in this paper. In relation to criminal law, it is clear from the wording of s 4 of the Customs Recognition Act (Ch 19) that custom is not accepted in Papua New Guinea as a complete defence to a criminal charge, although it may sometimes be taken into account in determining sentence. In civil cases, a relatively straightforward example comes from the case of Re Willingal (1997) N 1506, mentioned earlier. There, Injia J (at 47, 49) found that the practice of forced marriage infringed the protective provisions of s 5 of the Marriage Act (Ch 280). Another instance, perhaps more controversial, is that of Mura v Gigmai (1997) N 1573, where Injia J (at 7) held that to consider matters relating to payment of bride price in determining the future custody of a child of the marriage would be inconsistent with certain provisions of the Infants Act (Ch 278). 
(iii) repugnancy to the general principles of humanity
Despite the lack of a clear judicial definition of this phrase, a number of decisions have applied the principle to deny recognition of customs relating to dispossession of land in tribal fighting, cannibalism, and payback killings or injuries. More recently, the National Court has found that the general principles of humanity forbid the forced marriage of a woman (Re Willingal (1997) N 1506, at 50-51). Again, in Re Kaka Ruk  PNGLR 105, Woods J (at 107) held that the same principles invalidated a custom which prevented a wife from starting a new life by moving away from the husband’s relatives, despite the husband’s absence and failure to provide for her for some time. A final illustration is the case of Ubuk v Darius  PNGLR 279, in which the court applied this ground in refusing to countenance a Mailan (Siassi) custom which ensured automatic custody of children to the father, in the event of the breakdown of an informal relationship between the parents. In the words of Sevua J (at 283-84):
“Whether one views it subjectively or objectively, the woman is a sex object. So where is the morality and value of humanity in this woman? ... How does a woman in such a situation free herself from this seemingly sexual domination? I consider the Mailan customs repugnant to the general principles of humanity and, therefore, inapplicable to the present case. The applicant can gain no assistance from that customary law.”
(iv) resulting in injustice
A growing body of human rights jurisprudence in the National Court has in recent years also used the criteria set out in s 3 of the Customs Recognition Act (Ch 19) as alternative or additional grounds on which to object to customary practices, especially those which discriminate against women or children. The previously mentioned case of Re Willingal (1997) N 1506, for instance, also referred to this provision, saying (at 50) that it would be unjust for any woman from Minj to live under the threat of a forced marriage, while “men from Minj and other men and women in other parts of Papua New Guinea live, associate and marry freely”. In Aundak Kupil v State of Papua New Guinea  PNGLR 350, a case to be considered later in this paper, the enforcement of a customary claim for compensation to the exclusion of a common law claim for damages in negligence was rejected as likely to promote injustice (at 361).
(v) contrary to the public interest
For similar reasons to those mentioned above, the National Court in Re Willingal (1997) N 1506 (at 50) also found that the custom of forced marriage of a woman would be contrary to the public interest. This principle was also referred to as an alternative ground in State v Kule  PNGLR 404, where the court (at 406) refused to reduce a criminal sentence to reflect the fact that a child of the defendant was expected to be transferred by way of customary compensation to the victim’s kin group. The principle was also a ground for rejection of the customary claim in Aundak Kupil v State of Papua New Guinea  PNGLR 350 (at 361).
(vi) contrary to the best interests of a child under 16 years of age
As further indication of the frequently overlapping nature of the grounds in s 3 of the Customs Recognition Act (Ch 19), the court in State v Kule  PNGLR 404 (at 406) also used this ground to reject the custom whereby a young child was to be part of a compensation arrangement between the families of the defendant and the victim.
2. The Notion of Universality of Custom for Purposes of Sch 2.1
So far, I have provided some simple illustrations of the way in which the courts in Papua New Guinea have been prepared to apply constitutional and statutory provisions to restrict or prevent the application of custom in particular cases. I now turn to a more general obstacle to the recognition of custom, which was referred to and debated in some earlier cases, but (with one exception) has received no judicial attention in recent years.
(i) early cases
In Poisi Tatut v Chris Cassimus; Constitutional Reference No 1 of 1977  PNGLR 295, the plaintiff husband had brought an action for enticement, apparently based on common law, in the District Court at Rabaul. The magistrate formed the view that the common law action, having been abolished by statute in England in 1970, was not part of the underlying law under Sch 2.2 of the Constitution. The case was therefore referred to the Supreme Court to determine what law should be applied pursuant to Sch 2.3.
By the time the case reached the Supreme Court, the dispute had virtually been resolved between the parties. Consequently, the court was denied the benefit of detailed argument on the issues. Saldanha J agreed with the magistrate (at 299-300) that the common law action was not part of the underlying law, but pointed out that the magistrate had apparently overlooked Sch 2.1, by which custom is also part of the underlying law. In the absence of evidence of custom (which Saldanha J expected could have been found), Saldanha J was unwilling to formulate a rule of law under Sch 2.3 (at 300). In any event, he concluded, Parliament was in a better position than the court to formulate new law on such a topic (at 300).
It seems as if Saldanha J regarded local custom as eligible to be applied under Sch 2.1, a result obviously consistent with the definition of “custom” in Sch 1.2, quoted earlier, which is quite specific as to place and time. Strangely, however, Prentice CJ took a markedly different approach, saying that “having regard to Sch 2.4”, custom in Sch 2.1 must mean “custom obtaining throughout the country” (at 297). Further, since the evidence in the magistrate’s court did not resolve the issue about the ubiquity of custom, either one way or the other, and hence it was not clear whether there was a relevant custom to be applied under Sch 2.1, it would not at this stage be appropriate for the court to intervene under Sch 2.3 (at 298). For that matter, Parliament might be expected to act on the matter in the near future (at 298).
Raine Dep CJ, unhelpfully, stated his agreement (at 299) with both of the other judgments, and in the result the magistrate was directed to enter a verdict for the defendant. Given the level of confusion evident in the judgments, it is therefore hard to know what part of the court’s reasoning should have been regarded as binding in later cases.
Another difference of judicial opinion on the point is evident in the case concerning the sending of Papua New Guinean troops to Vanuatu. In Supreme Court Reference No 4 of 1980  PNGLR 265, Michael Somare as leader of the Opposition sought to challenge the constitutional validity of a Parliamentary decision and an Act of Parliament approving the commitment of troops to Vanuatu for a peace-keeping operation.
The decision in this case dealt merely with the petitioner’s standing to challenge the actions of the Parliament. By a majority of 3 to 2 (Kidu CJ, Kapi and Miles JJ; Kearney Dep CJ and Greville-Smith J dissenting), the Supreme Court held that the petitioner did have standing. The court reached this result by formulating a new rule of underlying law under Sch 2.3 to deal with standing, based on the petitioner’s status as a Member of Parliament and as a citizen of Papua New Guinea.
Of interest to the present discussion is the court’s approach to the meaning of “custom” in Sch 2.1. As a preliminary matter, four of the judges considered (and rejected) the petitioner’s claim to standing based on his position as a big man according to custom. This claim was raised both in relation to Sch 2.1, as to whether there was a custom which enabled a big man to speak in any forum, and also in relation to Sch 2.3, as to whether a new rule of underlying law should be declared by analogy with custom.
Kidu CJ refused to apply custom directly under Sch 2.1, because he felt that such a custom, if it existed, would breach the equality provisions of s 55 of the Constitution (at 271). As to Sch 2.3, Kidu CJ stated that evidence would be needed that the majority of the provinces of Papua New Guinea had such a custom (at 272); in the absence of such evidence, he then turned to the other matters listed in Sch 2.3 to help him formulate the new rule of underlying law (at 272-74).
Greville-Smith J, dissenting, observed (at 280) that the petitioner had failed to establish evidence of any customary rights of leaders “of sufficient universality”, this comment apparently being directed to the application of Sch 2.1. Since the judge decided that the common law rules were adequate for the purpose at hand, and fatal to the application, he had little to say about the application of Sch 2.3 (at 280-81, 284).
Miles J also found that the petitioner had not proved any relevant custom which could be applied and enforced under Sch 2.1. The evidence adduced related mainly to the rights of East Sepik big men in traditional forums, and did not resolve the question in the instant proceedings (at 305). In discussing the proper approach to be taken by the court in regard to custom and the development of the underlying law, Miles J stated (at 304):
“I would take a very liberal view as to the admissibility of evidence relating to custom. I expect that most courts in the country would need all available assistance to inform themselves on relevant custom, particularly if it be, as suggested in [Poisi Tatut v Chris Cassimus; Constitutional Reference No 1 of 1977] that it is only nationwide custom that is to be adopted as part of the underlying law under Sch 2.1. ... If a court is to adopt, apply and enforce a particular custom as a rule of law under Sch 2.1, it should only do so after it has fully informed itself as to the precise nature and extent of that particular custom. If analogy with custom is to be used to formulate a rule of law in accordance with Sch 2.3(1)(c), then it need not be ‘proved’ at all. It is clear that custom for the purposes of Sch 2.3 is quite different from custom for the purposes of Sch 2.1 ...”
The most detailed discussion of Sch 2 appears in the judgment of Kapi J. He clearly rejected the requirement that custom under Sch 2.1 must be common or widespread throughout the country. After referring to the definition of “custom” in Sch 1.2, he continued (at 288):
“The first difficulty that arises is that the indigenous inhabitants of this country have different customs applying in various matters. Where parties come from the same custom area there is no difficulty as the custom would apply to both. However there is a difficulty when the parties before the court are from different custom areas or where the subject matter before the court is a National matter or a National issue. The question then arises as to what is the custom applicable. ... In my view before a custom is adopted and enforced as part of the underlying law under Sch 2.1 of the Constitution, it must be established that a custom which the court proposes to adopt as law is recognised and extends to both parties. In a case which involves an issue which has a general application to the whole country such as whether the Leader of the Opposition has locus standi as in this case, it must be established that there is a custom which is common to all societies throughout the country. Custom as is referred to under Sch 2.1 of the Constitution is not created by the court but is discovered as a matter of fact and adopted as law.”
It will be seen that although Kapi J reached the same conclusion as Kidu CJ and Miles J, that the petitioner’s evidence as to custom was not acceptable for the purposes of Sch 2.1, and was also insufficient to provide relevant analogies for the purposes of Sch 2.3, for Kapi J this was only because the issue at stake was a matter of national rather than local importance. It would consequently follow, on Kapi J’s reasoning, that in any dispute of a local character, proof of merely local custom is all that would be required for purposes of Sch 2.1. Further, since Kapi J also indicated in a later passage his awareness of what is now s 7 of the Customs Recognition Act (Ch 19) in allowing the court to deal with conflicts between two or more applicable customs (at 289-90), the statement in the above passage that the custom must extend to both parties should accordingly be modified to take this into account.
From the two cases just discussed, it would seem that three judges (Prentice CJ in the first case, Miles J and Greville-Smith J in the second) were of the view that custom under Sch 2.1 should be common to the country. A similar point of view was put forward by the General Constitutional Commission in its 1983 Final Report. The Commission recommended as follows:
“3.18 Schedule 2.1
We recommend that the reference, ‘custom’ in Schedule 2.1 be clarified. Any custom which is proposed to be adopted under the schedule must be a custom that is recognised throughout Papua New Guinea as a matter of fact and should not include local custom or custom that applies only to some or certain parts of the country. Although the courts have recognised qualifications for custom that is to be adopted under Schedule 2.1, we make this recommendation, nevertheless, because it is not clear whether custom must be a custom prevailing throughout Papua New Guinea or not.”
Unfortunately, the Report contains no explanation or discussion relating to this recommendation. Indeed, while consistent with the expressed views of several Supreme Court judges, the Commission’s view sits strangely with two other opinions expressed by the Commission, that insufficient materials and evidence on custom were being presented to the judges for consideration, and that little progress had been made towards a Papua New Guinea legal system more responsive to the customs and perceptions of the people (at 278-79). That is to say, if the above recommendation was to be implemented, it is difficult to see how the Commission’s other two complaints could ever be rectified.
(ii) the Kolta Development case (1996)
For a number of years after the Somare decision (Supreme Court Reference No 4 of 1980  PNGLR 265), the issue of universality of custom under Sch 2.1 of the Constitution was not specifically raised before the National Court, and it is fair to say that the idea was in practice disregarded and forgotten. Instead, the National Court on numerous occasions referred to and was prepared to apply custom without reference to any supposed requirement of universality (several examples will be discussed later in this paper). In 1996, nevertheless, the point resurfaced. In Kolta Development and others v PNG Defence Force and the State (1996) N 1470, the plaintiff companies had been involved in the running of the Germania Club in Port Moresby. The club premises featured two restaurants, a bar and a beer garden. After a fight broke out at the club on the evening of 2 April 1993 between some civilians and several soldiers, further hostilities off the premises led to the death of a soldier. In retaliation, so the court found (at 3), a group of soldiers left their barracks in the early hours of the next morning and burnt the club premises to the ground. The several plaintiffs subsequently sued the PNG Defence Force and the State, claiming damages for the destruction of the club premises. The statement of claim was based both on custom and on the common law of negligence. While both aspects of the suit were ultimately unsuccessful, of interest here is the way in which the court treated the customary claim.
According to Salika J, the plaintiffs’ case in custom was presented on the basis that the destruction of the property was to be regarded as a customary wrong, and since the identity of the individual soldiers responsible for the fire was not known, the group to which the individuals belonged was liable to pay compensation (at 8). In other words, “the defendants are liable for the acts of destruction committed by its employees, namely the soldiers” (at 7). In support of their arguments, the plaintiffs presented evidence of custom from the Mt Hagen and Kairuku areas of Papua New Guinea (at 8).
In response, the defendants argued that the court was bound by the decision in the Somare case (Supreme Court Reference No 4 of 1980  PNGLR 265), and that therefore the plaintiffs’ claim must fail since they had only presented evidence of custom from two provinces. In substance, the court agreed and dismissed the plaintiffs’ customary claim (at 10):
“The position is that the plaintiffs must establish that the custom upon which they base their claim is prevalent or commonly practised in at least the majority of the provinces in the country. ... The Somare decision is a Supreme Court decision and is binding on the National Court ... I am of the view that there is a lot of common sense in what the Supreme Court said in the Somare Case in respect of adoption of custom from a majority of provinces for the whole of the country, especially when there are so many varying customs in the country. ... [The plaintiffs] cannot simply call witnesses from only two provinces and assert that customs in those two provinces are common throughout the country. ... I therefore cannot apply the customs of 2 provinces to all the 19 provinces nationwide.”
In addition, the court went on to find other reasons for the failure of the customary claim. Having referred to the terms of ss 3 and 5 of the Customs Recognition Act (Ch 19), Salika J (somewhat surprisingly) concluded (at 13) that to accept the notion of group responsibility or “no fault liability” relied on by the plaintiffs “would cause grave injustice and is not in the best interest of the public”. Further, in light of the definition of “custom” in Sch 1.2 of the Constitution, it was difficult to see how the customs of Mt Hagen and Kairuku could apply to the PNG Defence Force and the State of Papua New Guinea, since those two defendants were not “indigenous inhabitants of the country”. That is to say (at 14):
“While it is accepted that customs do change over a period of time it has not been shown in this case that the customs of the Western Highlands and the Kairuku people in the Central Province extend to the defendants. If those customs are not used or practised by the defendants, why should those customs apply to the defendants.”
It is not possible here to examine all of the reasons given by Salika J for his decision, but it would seem that at least a major justification for rejecting the claim was the failure of the plaintiffs, as in the Somare case, to lead evidence of an appropriate nation-wide custom. It may nevertheless be suggested, as Kapi J did in the earlier decision ( PNGLR 265, at 288), that the facts in Kolta Development are very different to that of a customary dispute between parties from the same locality, or a dispute involving two or more systems of local custom. It may be accepted, at least hypothetically, that elements of custom could have some relevance even in a context involving corporations, commercial leases, beer, soldiers and a Chinese restaurant. Nevertheless, it is certainly not clear why Mt Hagen or Kairuku custom as such should automatically apply in Port Moresby, unless the parties themselves owed some allegiance to these relevant customs. Further, the question of whether a particular custom might be applicable to national organisations like the PNG Defence Force or the State of Papua New Guinea itself is a complex one, and analogous to the issue of national importance underlying the decision in the Somare case. On these facts, therefore, the earlier analysis of Kapi J may be equally apposite, to require evidence of a more widespread and prevalent custom for purposes of Sch 2.1. This conclusion would not then compel anything like the same approach in other customary cases of merely local significance. That is, a suitable local custom may be referred to and applied, subject to adjustment via s 7 of the Customs Recognition Act (Ch 19) in the event of conflict of custom.
(iii) possible explanations for the doctrine of universality
To return to the general point, what explanation could there be for this apparent doctrine of universality of custom under Sch 2.1, a notion which is so obviously out of step with the definition of “custom” in Sch 1.2, and also the terms of s 5 of the Customs Recognition Act (Ch 19), which provisions are clearly directed to enabling the recognition of local custom in particular civil cases? In the light of such a doctrine, how could Village Courts, and Local and even District Courts, be expected to continue to operate in this area, since these courts are very frequently (and in the Village Courts constantly) called upon to resolve disputes arising from local custom?
One possibility is that the judges who insisted that custom should be common or at least widespread throughout the country were making assumptions about the later consequences of “adopting” custom as part of the underlying law in a particular case. That is to say, they may have felt that once custom was so adopted, it would thereafter, as part of the underlying law, apply automatically throughout the country, overriding any other custom to the contrary, and be thus available to claimants in every province. For this reason, it may have been thought to be unjust to so adopt a custom that pertained in only one part of the country, since this would have the effect of inflicting it upon the rest of the country. If this suggestion has any plausibility, it must nevertheless be said at once that none of the judges favouring the “universality” requirement have made the point explicitly. Further, as will become clear in the later part of this paper, it is also not the prevailing view of how Sch 2.1 operates.
Another possible explanation is that these judges felt that custom as applied in lower courts such as Village Courts or Local Courts, or as applied in any court by virtue of a particular statute, is somehow different in kind from custom as it is intended to be applied under Sch 2.1 of the Constitution. Ironically, given his support to the notion of local custom as generally sufficient for Sch 2.1 in the Somare case, just such a suggestion was made by Kapi J in State v Robert Kupara  PNGLR 312. In that case, dealing with the relevance of the prior payment of customary compensation to the length of the sentence to be passed after a conviction for manslaughter, the court referred to s 4(e) of the Customs Recognition Act (Ch 19). By this subsection, custom may be taken into account in a criminal case for the purpose of “(e) determining the penalty (if any) to be imposed on a guilty party”. Kapi J stated (at 315):
“It can be seen from the circumstances I have discussed that the provision directs that a court may take into account custom in so far as it may give full explanation of the circumstances of the accused. ... As to whether or not custom is taken into account, it is limited by its relevance to these circumstances. This is altogether a different matter from recognising, enforcing or adopting custom as part of the underlying law under the Constitution. Custom may be taken into account on sentence without enforcing it as part of the underlying law. I discussed this in Acting Public Prosecutor v Uname Auname  PNGLR 510 at 540-543. It follows from this reasoning that the Customs Recognition Act, s 3, and the Constitution, Sch 2.1 cannot be applicable. They are applicable where custom as such is adopted as part of the underlying law. This conclusion appears to be contrary to the reasoning of the Supreme Court in a recent decision, Public Prosecutor v Apava Keru and Aia Moroi  PNGLR 78. The court there was considering the influence on an accused person to act in accordance with the custom of payback. Of course, I would be bound by that decision on custom of payback. However, I am here concerned with customary compensation.”
What Kapi J is suggesting here is that when custom is being applied by virtue of a specific statutory direction, it is not to be considered as part of the underlying law, and thus it is not necessary to go through the filtering process (that is, the six limitations mentioned earlier) contained in Sch 2.1 of the Constitution and s 3 of the Customs Recognition Act. So far as I am aware, this very curious suggestion has not received support from any other decision. The reference by Kapi J to his own decision in Uname Auname is also of little help, since Kapi J in that earlier passage ( PNGLR 510, at 541 and at 543, for example) appears clearly to acknowledge the conditions for recognition of custom under what is now s 3 of the Customs Recognition Act (formerly s 6 of the Native Customs (Recognition) Act 1963) and Sch 2.1, and he does not suggest that custom can have any legal significance except by complying with those conditions. Further, given that the Supreme Court (Kidu CJ, Bredmeyer J and Amet J) in Public Prosecutor v Apava Keru and Aia Moroi specifically held that s 4(e) of the Customs Recognition Act is subject to s 3 of the same Act and to Sch 2.1 of the Constitution ( PNGLR 78 at 82), the principle was directly applicable to the point which Kapi J was deciding. It is therefore impossible to see how Kapi J could have regarded the issue in his case as distinguishable.
In my view, Kapi J’s suggestion must be rejected. First, it is inconsistent with the wording of Sch 2.1 itself, which gives no support to the idea of custom having any alternative legal significance, except as part of the underlying law. Secondly, with the exception of the Village Courts, all courts in Papua New Guinea are bound by the terms of s 4 (in criminal cases) and ss 5 and 6 (in civil cases) of the Customs Recognition Act, as to the exclusive situations in which custom may be taken into account. The reasoning of Kapi J in relation to s 4(e) could equally be applied to all the other subsections and paragraphs of ss 4-6, in which case the filtering mechanisms of s 3 and of Sch 2.1 would never become applicable. It is hardly surprising, then, that no other decision has pursued the same approach as that of Kapi J, and it is fair to conclude that State v Robert Kupara is a digression which will not be repeated. That is to say, it is the Constitution itself which gives custom its force and authority as part of the underlying law, and any statute which provides for proof of “custom”, or the application of “custom” in a particular situation, or allows for claims based upon “custom” to be brought and determined in a particular court, can only be referring to custom as contemplated and recognised under Sch 2.1.
To conclude this discussion of universality of custom, it is notable that after the Somare (troops to Vanuatu) case ( PNGLR 265), the doctrine virtually disappeared, with the exception of a brief re-appearance in the 1983 Final Report of the General Constitutional Commission, and then in the National Court decision of Kolta Development and others v PNG Defence Force and the State (1996) N 1470. So far as I know, no other cases have even mentioned the issue, and numerous decisions have proceeded on the opposite assumption. The obvious implication is that the argument of Kapi J in the Somare case is now accepted by the majority of the National and Supreme Court judges. Thus, except in cases of “national importance” such as in the Somare case itself, custom under Sch 2.1 need not be of general application, but may be specific as to both locality and time. Whatever the requirements of generality or universality of custom when Sch 2.3 is being referred to (declaration of new rules of underlying law), no similar requirements or limitations are necessary to give proper effect to the provisions of Sch 2.1. Finally, even if the gist of Sch 2.4 (need for uniformity in development of the underlying law) can be said to be at all relevant to Sch 2.1, it can be be satisfied if the courts pursue a consistent and uniform approach to the ascertainment and adoption of local custom in particular cases.
D. Relationship between Custom and Common Law under Schedule 2
By Sch 2.2 of the Constitution, set out above, the principles and rules of English common law, as at Independence Day, are adopted as part of the underlying law, except in the following situations:
(i) inconsistency with the Constitution;
(ii) inconsistency with a statute;
(iii) inapplicability to the circumstances of the country from time to time; and
(iv) inconsistency with custom as adopted under Sch 2.1.
Of these limitations, the fourth matter is of particular interest here. That is, what is the precise relationship between custom and the common law, as the two principal ingredients of the underlying law of Papua New Guinea? In particular, does one of these sources have priority or superiority over the other, in a case where both sources appear to be relevant and applicable? Or, instead, can there be a “dual system” of law in this situation, allowing a party to choose between customary and common law remedies or causes of action?
1. Does Custom have Priority over Common Law?
(i) Supreme Court Reference No 4 of 1980 (1981)
In the previously noted Somare case concerning the sending of Papua New Guinean troops to Vanuatu, Miles J considered and rejected the arguments that the wording of Sch 2.2 gave some sort of priority to custom as against the common law, and that only where the court had already decided that there was no appropriate custom should it turn to consider whether there was any suitable common law rule to apply. He stated ( PNGLR 265 at 303-304):
“In my view a court in Papua New Guinea does not discharge its duty under Sch 2 of the Constitution without considering all the matters adverted to in Schedules 2.1 and 2.2, and if necessary Sch 2.3. But this means little more than that a court in this country may not apply the common law without due regard to whether it is inconsistent with a constitutional law or a statue, or custom, or inappropriate to the circumstances of the country. The order in which these various factors are taken into consideration cannot be of any consequence. The suggested requirement that a court must positively decide that custom is inapplicable before it can proceed to consider the common law carries with it the obligation to commence the case with a comprehensive inquiry into all possibly relevant custom. This would place a burden upon judges and lawyers which in the light of their present training and experience would be difficult to discharge, to say the least.”
Kapi J, however, thought that the form of wording used in Sch 2.2 was important (at 286):
“The order in which these laws are listed under Sch 2 is not without significance. In a case where the underlying law of Papua New Guinea is in question or is an issue, the enquiry should always begin with the examination of custom which is applicable under Sch 2.1 of the Constitution. Custom which is adopted in accordance with Sch 2.1 of the Constitution is superior to common law because common law is only applicable to the extent that it is not inconsistent with custom as adopted under Sch 2.1 of the Constitution (Sch 2.2(1)(c) of the Constitution). The extent to which common law is applicable cannot be determined without determining what the custom says.”
Kidu CJ had little to say on the point made by Kapi J in the Somare case itself (see at 271), but he made similar comments in the later Supreme Court decision of State v Uniss Kamugaip ( PNGLR 278, at 280). In the latter case, counsel in a criminal case were reproved by the court for assuming that the only issue was whether the common law rules concerning compellability of spouses were applicable, without first having considered the relevance of custom on that matter under Sch 2.1.
(ii) Aundak Kupil (1983)
In several other cases, the question of priorities and choices between customary and common law claims and remedies have received more detailed attention. Of these, the decision of Bredmeyer J in Aundak Kupil v State of Papua New Guinea  PNGLR 350 contains perhaps the most careful and thoughtful analysis of the issues of inconsistency and choice between custom and common law, in the context of a road accident case. Some parts of the judgment are, nevertheless, rather perplexing.
There, the two plaintiffs had sustained very serious injuries, when the government vehicle in which they were traveling was involved in an accident. Both the plaintiff victims and the driver came from the Wahgi area of the Western Highlands. The driver was later convicted of dangerous driving. The plaintiffs brought a common law action for damages for negligence, suing the State as being vicariously liable for the actions of its driver. Before the trial began, the driver and his relatives paid an amount of customary compensation (although rather less than in other comparable cases) to the victims and their relatives. This compensation consisted of K2,400 each in cash, and a number of pigs and cassowaries, amounting to an overall total value in each case of about K5,500.
At the trial, the judge noted that the State in its defence had not argued that the payment and acceptance of the customary compensation amounted to a complete defence to the common law claim under Sch 2.2(1)(c), nor even that the common law damages should be reduced by the amount of customary compensation paid (at 354). Nevertheless, the judge invited the State to address him on the significance of the payment of customary compensation in relation to the common law claim. This course was not objected to by the plaintiffs’ counsel. A deal of evidence was then led concerning the relevant custom. In essence, this was to the effect that the same amount of compensation was generally payable whether or not the driver was at fault, and whether or not the victims were also to blame for their injuries. The compensation was paid collectively by the driver’s relatives, and shared out among the victims’ relatives. The main purpose of the compensation was to restore harmonious relationships between the two respective groups. Non-payment of compensation would lead to threats, and possibly fighting and death by way of retaliation from the victims’ relatives (at 355-58).
Faced with this evidence, and having noted that under Sch 2.1 and 2.2 of the Constitution custom is normally accorded “the predominant role” (at 360), Bredmeyer J then had to decide whether the Wahgi custom of compensation for road accident injuries should be applied via Sch 2.1. Distinguishing between the payment of compensation itself, and the threats of retaliation if compensation were not forthcoming, the court found that the first part of the custom was in principle enforceable under Sch 2.1(2). The second part of the custom, in contrast, was inconsistent with several statutes and some sections of the Constitution, including the requirement of not being repugnant to the general principles of humanity (at 359).
Bredmeyer J then referred to the “motor vehicle accident industry” in Papua New Guinea (at 360), pointing out that for many years plaintiffs in Papua New Guinea had been bringing claims for road accident injuries, under the common law as supplemented by various statutes (for example, the legislation requiring compulsory third party insurance). The only real question then as to the applicability of the common law via Sch 2.2 was that of inconsistency with custom.
Counsel for the State eventually argued that the customary and common law claims were inconsistent, and that the plaintiffs should be limited to the standard amount of customary compensation (proved to be about K10,000 each plus pigs and cassowaries). Since the plaintiffs had actually received less cash than usual, they should only be able to claim the balance (about K7,600 each). Counsel for the plaintiffs, on the other hand, argued that the two claims were not inconsistent, since they were between different parties, and based on different aims and principles, and that the plaintiffs should be able to keep the full amount of both claims. If, in the alternative, the court decided that some reduction to the amount of common law damages was required, it should only be for the amounts actually retained by the victims personally, and not the other amounts shared out among the various relatives (at 361).
The trial judge took an intermediate approach, appearing to conclude (without elaboration) that the customary and common claims were inconsistent. Rather than deciding as a consequence that the common law claim was thereby precluded, Bredmeyer J stated that in this instance, to enforce the custom to the exclusion of the common law claim would promote “injustice” and would not be “in the public interest”, within the terms of s 3(1)(a) of the Customs Recognition Act (Ch 19).
On the first point, Bredmeyer J said that injustice would be caused because otherwise plaintiffs with similar injuries would receive different awards of damages. For instance, if the driver was an expatriate from France, or if the victim was a Tolai, in either case the Wahgi system of custom might not be able to be applied, and instead the defendant would be liable for, or the plaintiff victim entitled to, the common law assessment of damages. In the court’s view, the amount of damages awarded “should not depend on the identity of the plaintiff or the identity of the vehicle driver” (at 361).
Secondly, to exclude totally the common law action would be contrary to the public interest, since the system of damages for road injuries, as bolstered by various statutory amendments, was well-known, having been in operation throughout the country for more than sixty years. The Wahgi people pay compulsory third party insurance premiums and charges, as well as taxes to the State, so why should Wahgi victims be denied access to the insurance fund, or be prevented from suing the State when its employees are at fault (at 362)?
As a final point, referring again to the Customs Recognition Act (Ch 19), s 3, the trial judge said that it would not be unjust to either the plaintiff or the defendant (that is, the State) if the plaintiffs received both sets of damages. Nevertheless, it would be more in the public interest if customary claims in this area were ultimately discouraged (especially considering the negative aspects of threats and possible retaliation). Hence the damages at common law (which the judge then proceeded to assess) should be reduced by the total amount of compensation paid to each victim, regardless of whether or not it had been retained by the victim or instead distributed to the victim’s relatives (at 362-63).
A number of difficult issues arise from this interesting judgment. Before commenting further, however, it will be useful to refer to two recent decisions which present a range of judicial views on the question of “choice” between customary and common law remedies. To reiterate the main point, where both a claim under custom and a claim under common law appear to be applicable, does the customary claim take priority, or is the plaintiff in effect able to elect between remedies (or even, perhaps, to pursue both remedies)?
(iii) Madaha Resena (1991)
In Madaha Resena v State of Papua New Guinea  PNGLR 22, the plaintiffs in earlier lengthy proceedings under the Land Titles Commission Act had been finally confirmed as the customary owners of Fisherman’s Island (near Port Moresby). They then commenced action against the State for various heads of common law damages arising from trespass, on the basis that the State had, about a century previously, wrongly taken over the island as waste and vacant land. The trial judge, Bredmeyer J, stated that he found the switch from a claim based on custom to a remedy based on common law to be “very incongruous”, and continued (at 31-32):
“I do not think the plaintiffs can have it both ways, that they can choose the kind of law to give them the most advantageous claim. It seems to me that, logically, if their claim to the ownership of the island is based on custom, then their claim for compensation for the government’s wrongful use of the island should also be based on custom. Applying s 5(g)(ii) and the final words of that section of the Customs Recognition Act I consider that this is a case or ‘a transaction’ which ‘justice requires should be’ regulated wholly by custom and not by the common law. And I consider that determining this claim by the common law would produce injustice to the State. I therefore propose to ignore the common law submitted to me and decide this case in accordance with the Motuan custom of the Tatana people.”
However, as no evidence of Motuan custom had been submitted to the court, the trial judge then proceeded via Sch 2.3 to develop the underlying law by applying his own views as to the appropriate heads and amount of damages (which appeared to be considerably less than would have been available at common law). The plaintiffs subsequently appealed to the Supreme Court ( PNGLR 174).
In the Supreme Court, Amet J began by stressing the autochthonous nature of the Papua New Guinean Constitution, and the need to develop an indigenous jurisprudence (at 186-89). He also referred approvingly to the opinion of Kapi J in the Somare case, that under Sch 2.1 and 2.2, custom is superior to the common law (at 189). He continued (at 190):
“If custom is adopted and applied under Sch 2.1, it becomes an underlying law principle. If a principle of common law is adopted and applied under Sch 2.2, it too becomes an underlying law principle. They become part of the development of a consistent and coherent system of our indigenous jurisprudence or underlying law. They do not remain separate systems of law. Upon adoption and application they become part of the ‘underlying law’ referred to in s 9(f) [of the Constitution].
It was never, in my opinion, the intention of the [Constitutional Planning Commission] or the Constituent Assembly that there should exist a ‘dual system of law’ applicable under Sch 2 of the Constitution. I do not believe that it was ever intended that litigants have a choice of law or remedy, nor do I think it was ever intended that there should be a different system of law for indigenous inhabitants and a different system for non-indigenous inhabitants.”
Amet J proceeded to complain (at 190-91) that lawyers and courts in Papua New Guinea too often both ignore custom and pay only cursory consideration to the circumstantial suitability test for common law, thereby perpetuating Papua New Guinea’s dependency upon and subservience to Anglo-Australian common law and equity. He then expressed his agreement with the views of the trial judge, that the plaintiffs were not able to change from a claim based on custom to seek a common law remedy in damages. He thought however that Bredmeyer J’s resort to Sch 2.3 had been premature, because insufficient effort had been made to obtain evidence about the nature of Tatana custom where customary land rights had been infringed by trespassers (at 192). He therefore held that the case should be returned to another National Court judge, for the purpose of inquiring into the relevant custom in relation to its potential adoption and application “as a superior source of underlying law pursuant to Sch 2.1” (at 193).
While Kapi Dep CJ agreed with Amet J as to the ultimate method of disposal of the case, he reached the result in a rather different way. To begin with, he pointed out that the trial judge had proceeded upon a false premise in saying that the plaintiffs had initially chosen to bring their claim under custom, since s 15 of the Land Titles Commission Act, by providing for the Commission to be the exclusive forum, prevented them proceeding in any other way (at 178-79). Once title to the land had been determined by the Commission, Kapi Dep CJ continued, the separate issue of consequential relief for the plaintiffs was then to be determined according to Sch 2 of the Constitution. Just as statute in some cases allows for a “dual system” of laws in Papua New Guinea (for example, dealing with marriage, custody of children, and inheritance of certain kinds of property), so Sch 2 contains, side by side, the two primary sources of the underlying law, custom and common law (at 180). While customary law may normally be irrelevant for “non-indigenous inhabitants”,
“[a]s far as the ‘indigenous inhabitants of the country’ are concerned, they have their rights regulated by customary law as well as the common law. ... When the indigenous inhabitants of the county, such as the plaintiffs in this case, are considering their rights and the subject matter is regulated both by customary law as well as the common law, there is a choice of remedy. There is nothing under Sch 2 of the Constitution which would compel a litigant who is an indigenous inhabitant to litigate under the principles of custom.”
As examples of the “choice of remedy” principle, Kapi Dep CJ then referred approvingly to Aundak Kupil (1983), referred to above, and two cases from Kenya. In both of the East African cases, the co-existence of customary claims for compensation with claims under the Kenyan Fatal Accidents Act was upheld by the court, together with the proviso that a plaintiff could not recover under both claims. Thus, in the case where the customary claim had been waived, the plaintiff could proceed with the claim under the Act. Alternatively, where compensation had already been accepted in full settlement of the customary claim, it was then not possible to bring a fresh suit under the Fatal Accidents Act (at 180-81).
In a further development of his argument, Kapi Dep CJ then said that it was quite legitimate for the Fisherman Island plaintiffs to elect to sue for damages at common law. However, the filtering process of Sch 2.2(1) had then to be considered (at 182). Here, there was no indication that the Constitution or any other statute was relevant, nor that the claim was unsuitable to the circumstances of the country, but it would nevertheless be necessary to consider the question of inconsistency with custom (at 182-83):
This means that where a common law action is instituted as a matter of choice, if a custom which is applicable to any of the parties in the action is shown to be inconsistent with the common law action, the common law principle in the particular case cannot be enforced. It is the duty of counsel to ensure that this inquiry is made before principles of common law can be adopted and enforced as part of the underlying law.
Since the trial judge had not applied sufficient attention to the question of Tatana custom, the matter would need to be returned for further enquiry on this point, for purposes of Sch 2.2(1)(c). A related aspect of this enquiry would be whether any Tatana (Motuan) custom applicable to the plaintiffs would also be applicable to the defendant (the State). Clearly, the State did not come within the expression “the indigenous inhabitants of the country” (see the definition of “custom” in Sch 1.2). On the other hand (at 184),
“Custom is capable of developing to extend to parties outside a particular customary area and it is also capable of developing to extend to modern properties or institutions ...”
To conclude, should it turn out that any relevant custom, applicable to the defendant, was inconsistent with the common law action, then according to Kapi Dep CJ the common law action would have to be dismissed, and a fresh action under custom instituted instead (at 183).
The third judge, Los J, echoed the terminology adopted by Kapi Dep CJ, in referring to a “choice” of remedies, at least until the court had the benefit of detailed argument on the point. He commented (at 195-96) as follows:
“[T]here is a fundamental question that needs an answer: can I hold that there is now an enforceable duty under the Papua New Guinea Constitution to apply customary law instead of common law when, in a given situation, certain relevant principles under both laws are put through the constitutional screening in Sch 2 and they reach the other end with ‘clean’ status? ... For the moment I consider that the Constitution has raised the status of customary law of the Nation and has imposed a duty on the National Judicial System and other governmental bodies to develop, apply and continue to develop, the indigenous jurisprudence. But the fact that there is already a screening process in Sch 2 of the Constitution, I consider, is not intended to arbitrarily drop the common law in favour of the customary law. ... I conclude that, until such time as the Supreme Court decides on well-informed submissions, where there is no statutory law on a subject, the parties have a right to choose which law to apply.”
In the result, all the judges agreed that Bredmeyer J had been premature in resorting to Sch 2.3 to develop new rules of the underlying law, and the matter was referred back to the National Court to hear evidence as to any relevant Tatana (Motuan) custom.
(iv) Pawa Kombea (1994)
The final case to be mentioned is the National Court decision of Kapi Dep CJ in Pawa Kombea v Semal Peke  PNGLR 572, where the plaintiff sued for damages at common law under a number of heads, including malicious prosecution, false imprisonment, and defamation. After default judgment was signed, the matter came before Kapi Dep CJ for assessment of damages. He raised the matter of customary law, and repeated passages from his judgment in Madaha Resena as to the “choice” of remedies, subject to the priority of custom if inconsistent with the common law. He then adjourned the case to allow evidence to be obtained as to custom in the area of the Southern Highlands where both the plaintiff and defendant lived.
On the resumed hearing, Kapi Dep CJ expressed his satisfaction with the views of two local experts (one village leader, and one Village Court magistrate) that “there is no custom which would be inconsistent with the actions taken in common law in this case” (at 574). The judge then proceeded to assess damages in accordance with common law principles, after summarising the legal position as follows (at 574):
“[T]he right time in which to raise the question of custom is at the outset, when a cause of action is instituted. ... If there is any custom which may be relevant, it should be pleaded to indicate whether or not it is inconsistent with the principles of common law and equity. If there is no custom which is relevant, that fact should also be pleaded.
In my view, it is necessary to raise the question of custom in the pleadings in all actions which are based on the principles of common law and equity which are yet to be adopted as part of the underlying law to give effect to Sch 2.2(1)(c) of the Constitution.
In the present case, custom was not pleaded, and when judgment was entered, it related only to the action brought in accordance with
the principles of common law. As there is no relevant custom and no issue was raised about the applicability and appropriateness
of principles of common law, it will be adopted as part of the underlying law.”
The implications of this passage will be considered in the discussion which follows.
2. Confusions from the Caselaw
From the cases of Aundak Kupil (1983), Madaha Resena (1991), and Pawa Kombea v Semal Peke (1994), it can be seen that there is a variety of judicial views as to the relationship between customary and common law claims under Sch 2 of the Constitution. Bredmeyer J in Aundak Kupil evidently considered that the Wahgi custom dealing with compensation for road accident injuries was inconsistent with the common law claim for negligence ( PNGLR 350, at 360-63). In that situation, Sch 2 would normally give priority to the customary claim (and on the State’s argument, the plaintiffs would have been limited to the amount of compensation allowable under custom). Bredmeyer J however decided for various reasons to apply the criteria in s 3 of the Customs Recognition Act (Ch 19) relating to justice and the public interest. As a result, he held that the Wahgi custom was not to be applied in preference to the common law remedy of damages (referring to the “motor vehicle accident industry” ( PNGLR 350, at 360)). One aspect of the “justice” factor, according to Bredmeyer J, was that plaintiffs with similar injuries should receive similar damages. There were, it seems, no such competing considerations in the same judge’s first instance judgment in Madaha Resena, where Bredmeyer J held, in contrast, that it was not open to the plaintiffs to choose a common law remedy in relation to a claim initially based on custom.
Amet J agreed with this latter approach in the Supreme Court decision in Madaha Resena, stating that it could not have been intended by the founders and drafters of the Constitution that plaintiffs should have a choice of remedies, or that the law applicable to indigenous inhabitants should be different to that applying to non-indigenous inhabitants. What is not clear, nevertheless, is how the holding in Madaha Resena, which makes the damages receivable by the plaintiffs depend upon the evidence of Tatana custom, will help to achieve Amet J’s goal of a single underlying law for everyone in the future. That is to say, if a land trespass case were next to arise in the Wahgi district, for instance, damages would presumably depend upon the details of Wahgi (not Tatana) custom, and in a case where only non-indigenous inhabitants were involved, damages would presumably be assessed in accordance with common law principles. Further, where parties come from different custom areas, or one party is Papua New Guinean and the other is not, it is also not obvious on Amet J’s approach which principles should apply. Finally, it should be emphasised that the opinions of Bredmeyer J (at first instance) and Amet J in Madaha Resena provide a contrast to the view of Bredmeyer J in the earlier Aundak Kupil case, that plaintiffs with similar claims or injuries should receive similar damages. That is to say, if the approach in Madaha Resena is taken, Papua New Guinean plaintiffs with analogous claims in different parts of the country will obviously receive differential amounts of compensation, according to the varying nuances of local custom.
Turning to the views of Kapi Dep CJ, tentatively supported by Los J, it may be suggested that the idea there floated of a “choice” of remedies is somewhat misleading, since this is immediately made subject to the proviso that if the customary and common law claims or principles or remedies are inconsistent, then custom should prevail (assuming no other Sch 2.1 disqualifications are applicable). If the possibility of choosing between the remedies disappears as soon as the remedies are discovered to be inconsistent, then in reality there is no choice at all. Perhaps the answer lies in Kapi Dep CJ’s idea of what “inconsistency” or “choice” means, but this aspect remains unexplored in his judgments to date. It is notable that the two East African cases, cited by him with approval in Madaha Resena ( PNGLR 174, at 180-81), in fact reflect a rather different notion of “choice”. In each African case, the court asserted a genuine right to choose between remedies, subject to a prohibition on double dipping; thus receipt of customary compensation precluded a common law claim, and vice versa. This is certainly a different result to that contemplated by Kapi Dep CJ in Madaha Resena and in Pawa Kombea, and for that matter also appears different to the approach of Bredmeyer J in Aundak Kupil.
Returning to Kapi Dep CJ’s concern with inconsistency, it is also not apparent why the customary law of defamation and false imprisonment (that is, customary ideas and practices relating to insulting words, and wrongful restriction of personal freedom), in that part of the Southern Highlands referred to in Pawa Kombea, was not inconsistent with the common law principles. No details of the customary law were given, or for that matter of the technical elements of the common law claims. The judge appears to have been simply satisfied by the assurances of two local witnesses (neither of whom could be expected to have any particular knowledge of the common law), to the effect that there was no conflict. This may be compared with the more determined efforts of Kapi Dep CJ and Los J in Madaha Resena, where the failure of the trial judge to refer to any evidence of relevant custom was treated as a reason to return the case for further investigation on the point.
As a final comment on Pawa Kombea v Semal Peke, it remains unclear what Kapi Dep CJ had in mind, in the passage quoted above, when he spoke of the necessity to plead custom in all cases relying on “principles of common law or equity which are yet to be adopted as part of the underlying law”. When, and in what sense, does this adoption ever occur? Obviously, there have been prior cases of defamation (for example) in Papua New Guinea since Independence, in which the common law principles have been applied, but the whole gist of the main judgments of the Supreme Court in Madaha Resena, echoed by Kapi Dep CJ in Pawa Kombea, is that the required process of checking for relevant customary law (which itself may change over time, as contemplated in the definition of “custom” in Sch 2.1) should continue in every new case as it arises. In other words, the court’s decision in Pawa Kombea to adopt the common law principles “as part of the underlying law” seems to be limited to the particular case at hand, and to have no automatic significance at all for later cases. The implications of this obligatory checking process for the notion and doctrines of “precedent” (that is, in brief, that “like cases should be decided alike”, and that decisions of higher courts are binding on lower courts), have yet to be considered. The difficulties that the resulting uncertainty produces for citizens trying to understand the current state of the law, for lawyers seeking to advise their clients, and for magistrates and judges trying to decide cases, can easily be imagined.
3. Problems of “Inconsistency”
In summary, the caselaw dealing with the relative priority as between customary law under Sch 2.1, and common law under Sch 2.2 is complex, controversial and ambiguous. The leading Supreme Court decisions, unfortunately, have not so far clarified these issues. For example, there is a striking, but so far unremarked, contradiction between the views of at least some Supreme Court judges in the Poisi Tatut and Somare cases (only “universal” custom to be considered under Sch 2.1), and the Supreme Court’s holding in Madaha Resena (particular local custom to be applied under Sch 2.1 in preference to the common law under Sch 2.2).
One of the contributing causes of confusion, in my view, arises from the difficulty of resolving questions of inconsistency, especially as between custom and statute, and as between custom and common law. On the former point, it will be recalled that according to Sch 2.1 of the Constitution, custom cannot be applied and enforced as part of the underlying law if it is inconsistent with a statute. It then becomes a matter of statutory interpretation, in a particular instance, to determine whether the legislation is intended to affect the operation of custom. For example, is the purpose of the legislation to override the operation of custom, by covering exhaustively the relevant field of activity, or is it possible for custom and statute to exist simultaneously? Here, I can do no more than give a couple of examples of the problem.
As one illustration, if a Papua New Guinean couple made a statutory marriage under the Marriage Act (Ch 280), would it still be possible for the wife’s relatives to bring a claim against the husband for payment of bride price? In Peter v Mathew (1995) N 1365, Woods J noted in passing (at 5) that “bride price is not a condition precedent to a marriage under the Marriage Act”. While this is undoubtedly true, the court there was not being asked to deal with the question posed above. It might be arguable that there is no inconsistency between the Marriage Act and the custom of bride price, because the custom is not a mere “formality” relating to the celebration of marriage, but a practice which has implications for the future behaviour and expectations of the spouses, the relationship between their respective sets of relatives, the position and entitlements of their children, and so on. On this approach, then, it would remain possible for bride price to be legally required even in the case of a statutory marriage. Whether the court would accept this argument in a particular instance might well depend on the specific details of custom introduced in evidence.
Another example is that of customary defamation claims, in the light of the Defamation Act (originally passed in 1962, now Ch 293). According to its original preamble, the purpose of this legislation was to “consolidate and amend the law of defamation”. At the time, this presumably meant the introduced (common) law of defamation, and was not intended to have any application to customary claims. Certainly, Raine J in the pre-Independence Supreme Court decision of Taupa v Joel (1974) SC 822 saw no reason why a customary claim for defamation would not be possible. In contrast, Bredmeyer J in Bole v Imbell (1982) N 354(M) rejected the possibility of a customary claim, saying (at 2) that the “cause of action is given by the Defamation Act 1962, which being a statute overrides custom”. Interestingly, Kapi Dep CJ in the previously discussed case of Pawa Kombea v Semal Peke  PNGLR 572, in which damages were awarded for customary defamation (among other injuries), made no mention of the legislation at all. The point of whether the statute operates to cover the field, in the sense of applying to all defamation claims, thus remains open for future determination.
The matter of inconsistency as between customary and common law claims is rather more complex, given the number of levels at which conflict or inconsistency can potentially occur. It is also more pressing, if the views of Amet J and Kapi Dep CJ in Madaha Resena gain ascendancy among the judges of the National and Supreme Court. This is because there can be inconsistency not simply in relation to “cause of action” in a broad sense, but also in regard to specific aspects or incidents of the claim. These aspects may include the precise type of remedy, the measure of damages, the choice of forum, any relevant defences, the relevant rules of evidence, other procedural aspects, and time limits for bringing the action. Of course, some of these matters may be regulated and clarified already by statute in Papua New Guinea, but in other situations it may be difficult to determine whether “inconsistency” exists, and if so, how it can be resolved.
Even at the broader level of “cause of action”, it is not always obvious when a customary claim and a common law claim are in conflict. While the judgment of Bredmeyer J in Aundak Kupil  PNGLR 350 remains an interesting example of judicial reasoning and interpretation of Sch 2 of the Constitution, it is noteworthy that the court did not elaborate on its reasons for concluding that the customary and common law claims arising out of the motor vehicle accident were apparently inconsistent. The court did however say that it would not be in the public interest “for the plaintiff to get both forms of compensation” (at 362). Given that the evidence suggested that the customary claim involved different parties (the respective kin groups of the driver and the victims), and was based on different principles both as to liability and as to assessment of compensation (see at 354-58, 362), it is interesting to speculate whether other judges would have reached the same conclusion. Or is the “inconsistency” here in fact a prohibition on allowing more than one type of claim from the same event or incident? Again, the reason for this conclusion is not evident.
At the beginning of this article, I referred in passing to some of the reasons identified since 1976 for the failure of custom to assume a significant role in providing content and substance for the underlying law of Papua New Guinea. The purpose of this paper, in contrast, has been to focus on the wording of Sch 2 of the Constitution, as interpreted in leading National and Supreme Court decisions. There is a striking degree of uncertainty and disagreement revealed in the caselaw, which casts doubt on the meaning and purpose of the statutory scheme for the development of the underlying law.
In other words, even if most of those earlier criticisms could be attended to and rectified, it would not follow that the underlying law would develop in an orderly and predictable fashion. Rather, it can be suggested that the concept of the underlying law itself, as prescribed in Sch 2, is unclear and incoherent. This at least seems a reasonable inference from the caselaw considered above. While the issue of commonality of custom can scarcely be said any longer to present a problem, a state of confusion persists in regard to other aspects. These include the relationship between custom and common law; the question of choice of remedies; how different forms of inconsistency are to be resolved; and more generally the matter of the precedent value of decisions.
It is unlikely that the current difficulties of interpretation of Sch 2 can be resolved without legislative intervention to revise or replace the existing wording. This in turn will require consideration of some of the fundamental questions outlined above concerning the content of the underlying law. In light of the decisions in Madaha Resana and Pawa Kombea, one of the most crucial issues will be the appropriate balance to be struck between the competing aims of ensuring legal certainty and predictability, on the one hand, and providing legal flexibility and adaptability to new circumstances, on the other. In short, when (and if so, to what extent and by what manner) does a court decision on custom or common law in one case become a binding precedent for later cases?
[*] Associate Professor of Law , University of New South Wales, Sydney NSW 2052. I am grateful to Tony Regan for his comments on an earlier draft of this article, which draws upon part of our joint work, O Jessep and AJ Regan (forthcoming), “Developing a Coherent Underlying Law – Integrating Custom and Common Law in Papua New Guinea”, in AJ Regan, O Jessep and E Kwa (eds), Twenty Years of the Constitution of Papua New Guinea (Law Book Co).
 See for example D Weisbrot, n 1 above, at p 278; cf D Roebuck, ‘Custom, Common Law and Constructive Judicial Lawmaking’, in R De Vere, D Colquhoun-Kerr and J Kaburise (eds), Essays on the Constitution of Papua New Guinea (Port Moresby 1985), pp 127-45, at p 130.
 See for example, B Sakora, n 1 above, at p 268.
 See for example J Nonggorr (1993), n 1 above, at p 51; and T Deklin, n 1 above, at p 34.
 See for example J Zorn, n 1 above, at pp 109-110; and D Weisbrot, “Integration of Laws in Papua New Guinea: Custom and the Criminal Law in Conflict”, in D Weisbrot, A Paliwala, and A Sawyerr (eds), Law and Social Change in Papua New Guinea (Butterworths, Sydney 1982), pp 59-103, at p 94.
 See A Amet, n 1 above, at pp 63-64.
 There is also a potential additional ground which arises from the wording of Sch 2.3(1), that an otherwise relevant custom might nevertheless be refused recognition, if it is not “applicable and appropriate to the circumstances of the country”. This issue, however, has yet to receive any judicial consideration.
 In the event, the court ((1997) N 1506, at 49) found it unnecessary to consider whether the relevant custom also infringed other provisions in the Constitution, such as s 36 (freedom from inhuman treatment); s 42 (liberty of the person); s 49 (right to privacy); and s 52(1) (freedom of movement).
 For an example where the court refused to take a custom of payback into account, see State v Nerius and Tingas (1982) N 397.
 For earlier discussion of the issue, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), pp 144-46.
 See for example Wena Kaigo v Siwi Kurondo  PNGLR 34; State v Aubafo Feama  PNGLR 301; Aundak Kupil v State of Papua New Guinea  PNGLR 350; Public Prosecutor v Apava Keru and Aia Moroi  PNGLR 78; and Public Prosecutor v Sidney Kerua and Billy Kerua  PNGLR 85.
 It is not clear which part of s 55 was being referred to by Kidu CJ in this comment ( PNGLR 265, at 271). Section 55(1), so far as relevant, provides that “all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex”. If Kidu CJ had in mind differences based on “tribe” or “place of origin”, a similar objection might arguably apply to many customs from most provinces (that is, that the customs are different to those found elsewhere). On the other hand, Kidu CJ might have been objecting to a custom pertaining to big men in contrast to women, that is discrimination on the basis of sex. For a further comment on s 55 in relation to custom, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), p 17.
 As noted, this was the view of Prentice CJ in the earlier case ( PNGLR 295, at 297-98), although arguably Saldahna J took a different approach (at 300). Given that the third judge, Raine Dep CJ (at 299) purported to agree with both the other judgments, it is difficult to regard the case as a convincing authority for the “universality” approach.
 Section 7, in brief, allows the court in a situation of conflict of custom to adopt that system of custom, or make such other order, as the justice of the case demands.
 PNG General Constitutional Commission, Final Report (Port Moresby, 1983), p 297.
 Although the court did not mention the point, it is also not clear how the plaintiffs brought their claim within the wording of s 5 of the Customs Recognition Act (Ch 19), except perhaps via the concluding words of the section (“or where the court thinks that by not taking the custom into account injustice will or may be done to a person”).
 See Village Courts Act 1989, s 57.
 The two cases were Mwaura s/o Kamau v Gatoto s/o Mwangi  EA 528; and Nyokabu v Public Trustee  EA 530. Both cases are discussed in A Allott, New Essays in African Law (London, Butterworths 1970), pp 246-48.
 Or is the system of damages in motor vehicle cases, whereby the common law as supplemented by statute is regarded as applicable throughout the country, to be seen as a special case?
 For that matter, might not the Defamation Act (Ch 293) also have been relevant (see below)?
 For discussion of bride price, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), Ch 2.
 See A Allott, New Essays in African Law (London, Butterworths 1970), Ch 7, for a discussion of some of these elements in the African context.
 It may be noted that this point is not discussed in the Final Report of the Constitutional Planning Committee (Port Moresby, 1974). In an article about the underlying law by the chief Draftsperson of the Constitution (see C J Lynch, “The Adoption of an Underlying Law by the Constitution of Papua New Guinea”, (1976) 4 Melanesian Law Journal 37-66), the treatment of “judicial precedent” deals only with the question of “cut-off date” for relevant English common law principles (at pp 56-59).