Law of Papua New Guinea - Courts

Courts

The judicial system consists of village magistrates courts, district courts in urban centres presided over by stipendiary magistrates, the National Court which is the superior trial court and the Supreme Court which is functionally an appellate division of the National Court: it is not separately constituted, its Chief Justice is also the Chief Justice of the National Court and its bench consists of National Court judges sitting as an ad hoc appellate tribunal. The Supreme Court is the final court of appeal: an appeal lay from the pre-independence Supreme Court to the High Court of Australia (but not directly to the Privy Council); this was abolished at independence. The Supreme Court also has jurisdiction under the Constitution to give advisory opinions, called "references," on the constitutionality of legislation. In addition to its function as a trial court, the National Court also functions as a court of disputed returns hearing "Electoral Petitions" by unsuccessful candidates for Parliament; Leadership Tribunals hearing cases of alleged misconduct in office referred by the Ombudsman Commission consist of one National Court judge and two District Court magistrates.

The Supreme Court has a special responsibility for developing the "underlying law," i.e. the common law of Papua New Guinea, having resort to those rules of local custom in various regions of the country which may be taken to be common to the whole country. The responsibility has been given additional express warrant in the Underlying Law Act, 2000 which purports to mandate greater attention by the courts to custom and the development of customary law as an important component of the underlying law. In practice the courts have found great difficulty in applying the vastly differing custom of the many traditional societies of the country in a modern legal system and the development of the customary law according to indigenous Melanesian conceptions of justice and equity has been less thorough than may have been anticipated in 1975; the Underlying Law Act does not yet appear to have had significant effect.

Advocacy follows the conventions of the English common law world and is adversarial rather than inquisitorial; German law was wholly displaced by Anglo-Australian law in the former German New Guinea after 1914 when Australia seized the Territory and there are no traces of it in modern Papua New Guinea.

The Chief Justice of Papua New Guinea is The Honourable Sir Salamo Injia.

Despite attempts to incorporate customary law, the writ of the 'National Courts' is felt less keenly in the more remote villages. Victims of crime can choose to have their cases heard in the national courts but this means transporting all those involved to the nearest town. Additionally, national courts hand down sentences that do not generally compensate the victim directly.

Melanesian custom tends to see crime as an offence against the victim and their family and community, more than an offence against the law. The affected family require compensation in the form of money or goods. In remote areas village magistrates (elected by a committee of the village, hence known as 'Committee Men') call 'Customary Courts', in which the involved parties assemble in an open area in the village. For minor offences the Committee Man will publicly impose a fine. Larger or more complex cases may involve the Committee Man shuttling between parties, trying to reach an agreement that will be acceptable to all sides. Where the case involves more than one village and especially if it is an attempt to avoid fighting between villages, several Committee Men, from different villages may be involved.

In remote regions in which few people have paid employment it might seem that large fines would be unlikely to be paid. The system is usually extremely effective; many people will work in town at some stage in their life and then have savings. Fines are levied against the transgressor and family, who then join together to pay the fine. The victim’s family generally feel satisfied that they have received restitution when they receive the fine, reducing the risk of subsequent fighting. Having paid the fine, the transgressor’s family usually make very sure that he behaves and may well make him slowly work to pay them back. The Committee Man is paid a fee for his time, generally by the person bringing the case.

In a remote environment with no police to back up and enforce his decision, the Committee Man needs considerable wisdom and diplomacy to make his verdict stick. Good Committee Men are impressive individuals and valuable sources of information about their local communities.