Podcast
Questions and Answers
What does the term 'traditional knowledge' refer to?
What does the term 'traditional knowledge' refer to?
A body of knowledge developed by indigenous peoples and local communities, often based on their customs and practices.
Customary law is primarily based on written statutes.
Customary law is primarily based on written statutes.
False (B)
How did the value of men traditionally differ from the modern perspective in Papua New Guinea (PNG)?
How did the value of men traditionally differ from the modern perspective in Papua New Guinea (PNG)?
Traditionally, men were valued based on initiation, ability to build houses, manage gardens, and perform cultural rituals, while in the modern context, value is often based on education and material wealth.
Which of the following best describes the relationship between customary law and state law in PNG?
Which of the following best describes the relationship between customary law and state law in PNG?
Customary law must not be repugnant to the general principles of _____ .
Customary law must not be repugnant to the general principles of _____ .
What challenges are mentioned related to accommodating modern aspirations within indigenous village contexts?
What challenges are mentioned related to accommodating modern aspirations within indigenous village contexts?
State recognition of customary legal systems has been uniform across the globe.
State recognition of customary legal systems has been uniform across the globe.
What do village elders help settle disputes over?
What do village elders help settle disputes over?
The agreements made by disputing parties with the village elders are always binding on each other.
The agreements made by disputing parties with the village elders are always binding on each other.
Which of the following are categories of rights and freedoms in the PNG Constitution?
Which of the following are categories of rights and freedoms in the PNG Constitution?
Customary law may offer the only response to __________ abuses in conflict areas.
Customary law may offer the only response to __________ abuses in conflict areas.
What is a significant challenge faced by the Office of the Public Solicitor in PNG?
What is a significant challenge faced by the Office of the Public Solicitor in PNG?
What is a key element of customary law according to the common law theory?
What is a key element of customary law according to the common law theory?
Indigenous peoples' customary laws often conflict with statutory laws and are considered inferior.
Indigenous peoples' customary laws often conflict with statutory laws and are considered inferior.
What is the main reason why customary laws are still prevalent in PNG despite statutory laws?
What is the main reason why customary laws are still prevalent in PNG despite statutory laws?
According to the PNG Constitution, what section provides for the enforcement of rights and freedoms?
According to the PNG Constitution, what section provides for the enforcement of rights and freedoms?
What may an Act of Parliament provide for?
What may an Act of Parliament provide for?
What is adopted as part of the underlying law in PNG post-Independence?
What is adopted as part of the underlying law in PNG post-Independence?
The courts have a duty to formulate an appropriate rule of law only when a rule does not exist.
The courts have a duty to formulate an appropriate rule of law only when a rule does not exist.
Which of the following are grounds for refusing to adopt a custom?
Which of the following are grounds for refusing to adopt a custom?
What does the PNG Constitution recognize about customary law?
What does the PNG Constitution recognize about customary law?
What is the primary rule for indigenous communities regarding laws?
What is the primary rule for indigenous communities regarding laws?
Customary law is considered binding upon indigenous people.
Customary law is considered binding upon indigenous people.
What may custom relate to in the lives of local communities?
What may custom relate to in the lives of local communities?
Match the following principles with their descriptions:
Match the following principles with their descriptions:
What is a characteristic of customary law?
What is a characteristic of customary law?
When was customary law recognized in Papua New Guinea?
When was customary law recognized in Papua New Guinea?
What are some areas of law influenced by customary law?
What are some areas of law influenced by customary law?
Customary law is static and does not change over time.
Customary law is static and does not change over time.
How is customary law different from statutory law?
How is customary law different from statutory law?
Which of the following best describes the relationship between indigenous rights and customary international law?
Which of the following best describes the relationship between indigenous rights and customary international law?
What role does customary law play in the context of land rights for indigenous peoples?
What role does customary law play in the context of land rights for indigenous peoples?
What is one characteristic of customary law according to Ian Hamnett?
What is one characteristic of customary law according to Ian Hamnett?
Customary law is less important than written law.
Customary law is less important than written law.
In Papua New Guinea, how does the Constitution treat customary law?
In Papua New Guinea, how does the Constitution treat customary law?
Which country has recognized the significance of customary law in governance among its communities?
Which country has recognized the significance of customary law in governance among its communities?
What is one view of customary law?
What is one view of customary law?
Customary law can be modified by indigenous peoples over time.
Customary law can be modified by indigenous peoples over time.
According to Barsh and Henderson (1997), what characterizes western legal systems?
According to Barsh and Henderson (1997), what characterizes western legal systems?
What are the two central issues dominating the recognition of customary law?
What are the two central issues dominating the recognition of customary law?
The repugnancy rule allows courts to apply customary law without any conflicts.
The repugnancy rule allows courts to apply customary law without any conflicts.
What must be proved before customary law can be recognized by courts?
What must be proved before customary law can be recognized by courts?
What does the term 'custom' mean according to the PNG Constitution?
What does the term 'custom' mean according to the PNG Constitution?
The principles of customary law provide consistency and predictability to __________.
The principles of customary law provide consistency and predictability to __________.
Which international document recognizes the rights of indigenous peoples to their customary law?
Which international document recognizes the rights of indigenous peoples to their customary law?
What does the National Goals and Directive Principles (NGDPs) state about PNG customs?
What does the National Goals and Directive Principles (NGDPs) state about PNG customs?
What does the term 'traditional knowledge' refer to?
What does the term 'traditional knowledge' refer to?
Customary law is only relevant in local communities and has no significance in international law.
Customary law is only relevant in local communities and has no significance in international law.
Which factor has traditionally contributed to the value of men in Papua New Guinea?
Which factor has traditionally contributed to the value of men in Papua New Guinea?
What has changed regarding what determines the value of a man in modern Papua New Guinea?
What has changed regarding what determines the value of a man in modern Papua New Guinea?
What is one element included in a holistic approach to protecting traditional knowledge?
What is one element included in a holistic approach to protecting traditional knowledge?
Customary law emerges from what indigenous peoples believe they ______ do.
Customary law emerges from what indigenous peoples believe they ______ do.
What was declared unconstitutional in Papua New Guinea regarding customary law?
What was declared unconstitutional in Papua New Guinea regarding customary law?
Match the following elements with their relevance to customary law:
Match the following elements with their relevance to customary law:
What year was customary law recognized as part of the PNG Constitution?
What year was customary law recognized as part of the PNG Constitution?
Customary law is considered binding only by indigenous peoples.
Customary law is considered binding only by indigenous peoples.
What significant change occurred regarding indigenous peoples' rights in recent times?
What significant change occurred regarding indigenous peoples' rights in recent times?
Customary law is _____ in nature and has been largely unwritten.
Customary law is _____ in nature and has been largely unwritten.
Which of the following areas does customary law influence?
Which of the following areas does customary law influence?
According to customary law, who regulates over 80% of land rights in Pacific Island countries?
According to customary law, who regulates over 80% of land rights in Pacific Island countries?
Customary law derives its authority from formal acts such as a vote in parliament.
Customary law derives its authority from formal acts such as a vote in parliament.
The primary source of custom includes stories, songs, dance, dress, and _____ of indigenous communities.
The primary source of custom includes stories, songs, dance, dress, and _____ of indigenous communities.
Which term describes the non-state laws that indigenous peoples follow?
Which term describes the non-state laws that indigenous peoples follow?
Match the following concepts with their relevance to customary law:
Match the following concepts with their relevance to customary law:
What has been a notable trend in recognizing indigenous peoples' rights in the South Pacific region?
What has been a notable trend in recognizing indigenous peoples' rights in the South Pacific region?
What can an Act of Parliament provide for regarding custom?
What can an Act of Parliament provide for regarding custom?
The principles and rules of common law in England are fully adopted as the underlying law in PNG.
The principles and rules of common law in England are fully adopted as the underlying law in PNG.
What duty do the Supreme Court and the National Court have regarding applicable rules of law?
What duty do the Supreme Court and the National Court have regarding applicable rules of law?
In the case of conflict of customs, the Court may adopt the ________ system of custom.
In the case of conflict of customs, the Court may adopt the ________ system of custom.
Match the following principles of custom with their descriptions:
Match the following principles of custom with their descriptions:
What is necessary for custom to be recognized in criminal cases?
What is necessary for custom to be recognized in criminal cases?
Which statement best describes the significance of customary law in PNG?
Which statement best describes the significance of customary law in PNG?
Customary law can govern parties to the exclusion of ordinary law.
Customary law can govern parties to the exclusion of ordinary law.
What must be proven for a custom to be valid?
What must be proven for a custom to be valid?
What is the primary role of village elders in dispute resolution?
What is the primary role of village elders in dispute resolution?
Formal courts should be the first option for dispute resolution in rural areas.
Formal courts should be the first option for dispute resolution in rural areas.
What are the higher rates of resolution attributed to?
What are the higher rates of resolution attributed to?
What does the PNG Constitution contain?
What does the PNG Constitution contain?
Which of the following is NOT one of the categories of rights in the PNG Constitution?
Which of the following is NOT one of the categories of rights in the PNG Constitution?
Customary law is inferior to statutory law according to the perception of indigenous cultures.
Customary law is inferior to statutory law according to the perception of indigenous cultures.
What is said about customary law mechanisms according to David Pimentel?
What is said about customary law mechanisms according to David Pimentel?
The __________ provides for compensation or damages to be paid for breach of rights.
The __________ provides for compensation or damages to be paid for breach of rights.
What challenge do customary laws face in modern contexts?
What challenge do customary laws face in modern contexts?
What is one of the fundamental rights defined in the PNG Constitution?
What is one of the fundamental rights defined in the PNG Constitution?
Match the following sections of the PNG Constitution with their meanings:
Match the following sections of the PNG Constitution with their meanings:
What is one view of customary law?
What is one view of customary law?
Principles taken from stories and other sources of customary law can be applied in specific cases without changing the principle.
Principles taken from stories and other sources of customary law can be applied in specific cases without changing the principle.
According to Barsh and Henderson, what do principles provide in legal systems?
According to Barsh and Henderson, what do principles provide in legal systems?
What is the main dilemma regarding the repugnancy rule?
What is the main dilemma regarding the repugnancy rule?
The estimated number of uncontacted peoples in the Amazonian region is ________.
The estimated number of uncontacted peoples in the Amazonian region is ________.
What do the National Goals and Directive Principles (NGDPs) of the PNG Constitution include?
What do the National Goals and Directive Principles (NGDPs) of the PNG Constitution include?
What is one consequence of codifying customs according to Sinha?
What is one consequence of codifying customs according to Sinha?
Under which international instrument are indigenous peoples' rights to their own customs recognized?
Under which international instrument are indigenous peoples' rights to their own customs recognized?
What limitation is placed on indigenous customs according to the Indigenous and Tribal Peoples Convention?
What limitation is placed on indigenous customs according to the Indigenous and Tribal Peoples Convention?
The PNG Constitution includes provisions concerning the recognition of customary law.
The PNG Constitution includes provisions concerning the recognition of customary law.
Match the following Goals of PNG's National Goals and Directive Principles with their descriptions:
Match the following Goals of PNG's National Goals and Directive Principles with their descriptions:
What has modern legislation clarified about the rights of indigenous people regarding their legal frameworks?
What has modern legislation clarified about the rights of indigenous people regarding their legal frameworks?
In which area does customary law notably provide regulations for communities?
In which area does customary law notably provide regulations for communities?
How does the Constitution of Papua New Guinea treat customary law?
How does the Constitution of Papua New Guinea treat customary law?
Which characteristic best defines the nature of customary law as it pertains to authority and governance?
Which characteristic best defines the nature of customary law as it pertains to authority and governance?
What role does customary law play in the context of international human rights?
What role does customary law play in the context of international human rights?
What distinguishes the influence of customary law from formal written legal systems?
What distinguishes the influence of customary law from formal written legal systems?
In what way does customary law influence indigenous land and resource rights?
In what way does customary law influence indigenous land and resource rights?
What is an important understanding of the obligations of states concerning indigenous customs and laws?
What is an important understanding of the obligations of states concerning indigenous customs and laws?
Which statement accurately reflects the distinction between customary law and statutory law?
Which statement accurately reflects the distinction between customary law and statutory law?
What role does customary law play in the context of human rights for indigenous peoples?
What role does customary law play in the context of human rights for indigenous peoples?
How has customary law influenced legal traditions globally?
How has customary law influenced legal traditions globally?
What does the PNG Constitution stipulate regarding the recognition of customary laws?
What does the PNG Constitution stipulate regarding the recognition of customary laws?
What has been a significant challenge regarding the application of customary law in modern contexts?
What has been a significant challenge regarding the application of customary law in modern contexts?
Which statement best characterizes the nature of traditional authorities in the context of customary law?
Which statement best characterizes the nature of traditional authorities in the context of customary law?
How is the effectiveness of customary law measured in relation to human rights?
How is the effectiveness of customary law measured in relation to human rights?
Why might customary law be perceived as static according to some viewpoints?
Why might customary law be perceived as static according to some viewpoints?
What is a key reason for the transformation of human rights in the context of customary law?
What is a key reason for the transformation of human rights in the context of customary law?
Which section of the PNG Constitution allows enforcement of rights by interested individuals?
Which section of the PNG Constitution allows enforcement of rights by interested individuals?
In the case of breaches of rights, what type of damages may courts award?
In the case of breaches of rights, what type of damages may courts award?
Which factor is crucial for building trust in human rights law during conflicts in Bougainville?
Which factor is crucial for building trust in human rights law during conflicts in Bougainville?
What happens when traditional practices are discredited in the context of human rights abuses?
What happens when traditional practices are discredited in the context of human rights abuses?
During the crisis on Bougainville, what primarily served as the legal framework for the majority of the population?
During the crisis on Bougainville, what primarily served as the legal framework for the majority of the population?
What is one of the outcomes of dialogues between the National Government and local populations?
What is one of the outcomes of dialogues between the National Government and local populations?
What impact has the shift to recognizing collective rights had on customary law?
What impact has the shift to recognizing collective rights had on customary law?
What aspect of customary law contributes to its recognition in the international legal framework?
What aspect of customary law contributes to its recognition in the international legal framework?
Which characteristic distinguishes customary law from statutory law in indigenous communities?
Which characteristic distinguishes customary law from statutory law in indigenous communities?
What role do traditional authorities play in the mediation of disputes within customary law?
What role do traditional authorities play in the mediation of disputes within customary law?
How does the PNG Constitution treat the relationship between customary law and human rights?
How does the PNG Constitution treat the relationship between customary law and human rights?
What challenge is associated with codifying customary law within the PNG constitutional framework?
What challenge is associated with codifying customary law within the PNG constitutional framework?
What is one of the significant advantages of customary law for indigenous peoples?
What is one of the significant advantages of customary law for indigenous peoples?
In what way is the formal recognition of customary law considered recent?
In what way is the formal recognition of customary law considered recent?
How does customary law serve indigenous peoples in terms of land and resources?
How does customary law serve indigenous peoples in terms of land and resources?
Which of the following factors significantly challenges the integration of customary law into the formal legal system in Papua New Guinea?
Which of the following factors significantly challenges the integration of customary law into the formal legal system in Papua New Guinea?
What is a primary reason for the recognition of customary law by the PNG Constitution?
What is a primary reason for the recognition of customary law by the PNG Constitution?
In what way does customary law provide a framework for human rights within indigenous communities in PNG?
In what way does customary law provide a framework for human rights within indigenous communities in PNG?
What role do traditional authorities play in the context of customary law within PNG?
What role do traditional authorities play in the context of customary law within PNG?
Which of the following best describes a challenge to customary law as it relates to human rights in PNG?
Which of the following best describes a challenge to customary law as it relates to human rights in PNG?
What does the repugnancy principle in PNG imply regarding the application of customary law?
What does the repugnancy principle in PNG imply regarding the application of customary law?
In recent years, what has significantly influenced the evolution of customary laws in Papua New Guinea?
In recent years, what has significantly influenced the evolution of customary laws in Papua New Guinea?
Which statement accurately reflects the enforcement of customary law in relation to statutory law within PNG?
Which statement accurately reflects the enforcement of customary law in relation to statutory law within PNG?
Flashcards are hidden until you start studying
Study Notes
Indigenous Customary Law Overview
- Customary law is considered binding for indigenous peoples in Papua New Guinea (PNG) and worldwide, serving as their primary legal source.
- Official recognition of customary law in PNG occurred in 1975, integrating it into the constitution as low-tier law in the legal hierarchy.
- Modern advancements in law recognize indigenous rights to govern themselves according to their own legal traditions.
Characteristics of Customary Law
- Customary law evolves over time, reflecting cultural changes and societal needs, and is distinct from statutory law, which is formal and legislated.
- Seen as dynamic, customary law derives authority from social acceptance rather than formal legislative processes.
- Customary law is significant in various legal domains, including contract, family, tort, and international law, influencing rights to land and resources.
Recognition and Integration of Customary Law
- PNG's constitution acknowledges customary law, enforcing an international legal framework to uphold indigenous laws and rights.
- The role of customary law varies regionally; for instance, it is more integrated in some South Pacific nations than in others.
- Customary legal systems coexist with state law, often informing governance and resource management.
Global Context of Customary Law
- Customary law adapts and interacts with international law, recognized as essential for promoting indigenous peoples’ rights globally.
- Approximately 80% of land rights in Pacific Islands and 75% in Africa are governed by customary legal frameworks.
- In conflict zones (e.g., Sierra Leone, Somalia, Sudan), customary law is often the sole accessible justice system.
The Role of Elders and Community in Customary Law
- Elders as clan leaders play crucial roles in dispute resolution, particularly where formal courts are inaccessible, maintaining community harmony.
- Customary law processes are viewed as more efficient, often resolving disputes faster and fostering lasting agreements among parties involved.
Recognition of Indigenous Rights
- There is an increasing obligation for states to acknowledge and protect indigenous rights, including customary law.
- Recent trends highlight a renaissance in the recognition of indigenous legal regimes as part of human rights advocacy.
Examples of Customary Law in Practice
- Variations in the recognition of customary law exist across different countries, such as:
- Samoa: Leaves it to legal systems to determine which customary elements are acceptable.
- Vanuatu: Actively incorporates customary law into governance and resource management.
- Palau: Courts participate in customary dispute resolution processes.
- Initiatives in Solomon Islands and other nations reveal attempts to blend modern and traditional laws, acknowledging the need for community involvement.
Impacts of Customary Law
- Customary law is vital for protecting indigenous cultural heritage, land rights, and traditional knowledge within global frameworks.
- Legal scholars recognize the necessity of customary laws to reflect local contexts and uphold indigenous identities and practices.### Rights and Freedoms in PNG Constitution
- The PNG Constitution enshrines 16 basic rights and freedoms divided into three categories: fundamental rights, qualified rights for everyone, and qualified rights specific to citizens.
- Sections 32 to 56 of the Constitution detail these rights, with section 32 defining them and sections 33 and 34 establishing their application among individuals, government, corporations, and associations.
- Key fundamental rights include the Right to Life (s. 35), Freedom from Inhuman Treatment (s. 36), and Protection of the Law (s. 37).
- Qualified rights for all persons include Liberty of the Person (s. 42), Freedom from Forced Labor (s. 43), Freedom from Arbitrary Search (s. 44), and others up to the Right to Privacy (s. 49).
- Section 55 emphasizes Equality of citizens, critical in addressing PNG's human rights issues.
- Enforcement of rights is guaranteed in court via sections 57 and 58, allowing for damages in breach cases.
Human Rights and Customary Law
- Human rights movements highlight the need to recognize customary law, shifting focus from individualistic to collective rights.
- During the Bougainville crisis, customary law became the primary legal framework amidst the breakdown of formal legal structures.
- Involvement of local communities in decision-making is essential for fostering trust in human rights laws.
- Customary law offers responses to human rights abuses, although it can also perpetuate discriminatory practices against victims, particularly in sexual violence cases.
- Women's groups resist proposals to diminish penalties for sexual offenses under customary law, aiming for reform from within.
Rule of Law in PNG
- The National Government is composed of the National Parliament, National Executive, and National Judicial System, with a constitutional principle of separation of powers.
- The judiciary, which includes the Supreme and National Courts, must remain impartial and act fairly, supported by the Office of the Public Solicitor, despite funding challenges.
- Access to justice is hindered by legal aid limitations, high lawyer fees, and complex court processes.
Recognition of Customary Law
- PNG is home to approximately eight million people, with diverse indigenous cultures and over 800 languages.
- Customary laws are recognized in varying degrees, from formal constitutional recognition to local tolerances.
- Many indigenous people rely solely on customary law for justice, particularly in rural areas or post-conflict settings.
- The Constitution acknowledges the dynamic nature of customary law, allowing it to evolve alongside common law.
Nature and Sources of Customary Law
- Customary law consists of norms and practices formed by community consensus and is integral to indigenous culture.
- Indigenous peoples' customary laws are often recognized as equal to statutory laws, with no inherent hierarchy.
- Dworkin's principle-based view aligns with customary law as a flexible, principle-driven legal framework that can adapt over time.
Proof and Repugnancy of Customary Law
- Recognition of customary law faces challenges in distinguishing it from habitual customs and ensuring alignment with contemporary moral values (repugnancy rule).
- The relationship between customary law and proof standards varies, with some courts requiring witness evidence while others accept judicial notice of notorious customs.
- The judiciary must balance respect for customary practices with adherence to minimum standards of civil society, posing ongoing dilemmas in legal proceedings.### Repugnancy and Public Policy Rules
- Elias critiques the British legal system for its failure to balance custom and colonial law, particularly through the repugnancy and public policy rules.
- The repugnancy rule allows courts to deviate from customary law not based on its inherent morality but on the case-specific implications deemed repugnant by the court.
- The evolution of the repugnancy rule post-decolonization highlights a shift toward respecting customary laws rather than outright rejection.
Codification of Customs
- Codified customs become legally binding and must be interpreted carefully by the courts to avoid stifling the evolution of customs.
- The 1985 claim regarding native ownership of Fisherman's Island showcases complexities in proving customary rights and choosing applicable laws.
- The National Court emphasized that claims for compensation should align with local customs rather than common law.
International Recognition of Customary Law
- Indigenous rights to customary law are recognized internationally, requiring states to acknowledge their governance according to traditional laws.
- The "Indigenous and Tribal Peoples Convention 1989" mandates that national laws respect indigenous customs unless incompatible with fundamental human rights.
- The United Nations Declaration on the Rights of Indigenous Peoples supports self-determination and legal recognition of indigenous lands and customs.
Recognition of Customary Law in Constitutions
- Constitutions of 112 countries include provisions on recognizing customary law, often limited by conflicts with national laws and human rights standards.
- Customary law must attain a "force of law," determined by the community, the courts, or the legislature, leading to varied interpretations.
Customary Law in Papua New Guinea (PNG)
- The PNG Constitution incorporates customs under its National Goals and Directive Principles, emphasizing local social and cultural systems.
- Customary law is acknowledged as part of PNG’s underlying law, regulated by the Underlying Law Act of 2000 and the Customs Recognition Act of 1963.
- The Constitution defines custom broadly, allowing for contemporary practices to be recognized without the need for immemorial status.
Guidelines for Custom Adoption
- Various guidelines must be considered when customs are proposed for legal adoption:
- Inconsistency with the Constitution or national laws.
- Potential to cause injustice or conflict with public interest.
- Provisions protecting the best interests of children.
Dynamic Nature of Customary Law
- The PNG Constitution affirms that customary laws will evolve and remain integral to the legal system, reflecting the dynamic aspect of indigenous practices.
- The definition of customary law in the PNG Constitution diverges from common law tradition, acknowledging laws that do not require immemorial status.
Indigenous Customary Law Overview
- Customary law is considered binding for indigenous peoples in Papua New Guinea (PNG) and worldwide, serving as their primary legal source.
- Official recognition of customary law in PNG occurred in 1975, integrating it into the constitution as low-tier law in the legal hierarchy.
- Modern advancements in law recognize indigenous rights to govern themselves according to their own legal traditions.
Characteristics of Customary Law
- Customary law evolves over time, reflecting cultural changes and societal needs, and is distinct from statutory law, which is formal and legislated.
- Seen as dynamic, customary law derives authority from social acceptance rather than formal legislative processes.
- Customary law is significant in various legal domains, including contract, family, tort, and international law, influencing rights to land and resources.
Recognition and Integration of Customary Law
- PNG's constitution acknowledges customary law, enforcing an international legal framework to uphold indigenous laws and rights.
- The role of customary law varies regionally; for instance, it is more integrated in some South Pacific nations than in others.
- Customary legal systems coexist with state law, often informing governance and resource management.
Global Context of Customary Law
- Customary law adapts and interacts with international law, recognized as essential for promoting indigenous peoples’ rights globally.
- Approximately 80% of land rights in Pacific Islands and 75% in Africa are governed by customary legal frameworks.
- In conflict zones (e.g., Sierra Leone, Somalia, Sudan), customary law is often the sole accessible justice system.
The Role of Elders and Community in Customary Law
- Elders as clan leaders play crucial roles in dispute resolution, particularly where formal courts are inaccessible, maintaining community harmony.
- Customary law processes are viewed as more efficient, often resolving disputes faster and fostering lasting agreements among parties involved.
Recognition of Indigenous Rights
- There is an increasing obligation for states to acknowledge and protect indigenous rights, including customary law.
- Recent trends highlight a renaissance in the recognition of indigenous legal regimes as part of human rights advocacy.
Examples of Customary Law in Practice
- Variations in the recognition of customary law exist across different countries, such as:
- Samoa: Leaves it to legal systems to determine which customary elements are acceptable.
- Vanuatu: Actively incorporates customary law into governance and resource management.
- Palau: Courts participate in customary dispute resolution processes.
- Initiatives in Solomon Islands and other nations reveal attempts to blend modern and traditional laws, acknowledging the need for community involvement.
Impacts of Customary Law
- Customary law is vital for protecting indigenous cultural heritage, land rights, and traditional knowledge within global frameworks.
- Legal scholars recognize the necessity of customary laws to reflect local contexts and uphold indigenous identities and practices.### Rights and Freedoms in PNG Constitution
- The PNG Constitution enshrines 16 basic rights and freedoms divided into three categories: fundamental rights, qualified rights for everyone, and qualified rights specific to citizens.
- Sections 32 to 56 of the Constitution detail these rights, with section 32 defining them and sections 33 and 34 establishing their application among individuals, government, corporations, and associations.
- Key fundamental rights include the Right to Life (s. 35), Freedom from Inhuman Treatment (s. 36), and Protection of the Law (s. 37).
- Qualified rights for all persons include Liberty of the Person (s. 42), Freedom from Forced Labor (s. 43), Freedom from Arbitrary Search (s. 44), and others up to the Right to Privacy (s. 49).
- Section 55 emphasizes Equality of citizens, critical in addressing PNG's human rights issues.
- Enforcement of rights is guaranteed in court via sections 57 and 58, allowing for damages in breach cases.
Human Rights and Customary Law
- Human rights movements highlight the need to recognize customary law, shifting focus from individualistic to collective rights.
- During the Bougainville crisis, customary law became the primary legal framework amidst the breakdown of formal legal structures.
- Involvement of local communities in decision-making is essential for fostering trust in human rights laws.
- Customary law offers responses to human rights abuses, although it can also perpetuate discriminatory practices against victims, particularly in sexual violence cases.
- Women's groups resist proposals to diminish penalties for sexual offenses under customary law, aiming for reform from within.
Rule of Law in PNG
- The National Government is composed of the National Parliament, National Executive, and National Judicial System, with a constitutional principle of separation of powers.
- The judiciary, which includes the Supreme and National Courts, must remain impartial and act fairly, supported by the Office of the Public Solicitor, despite funding challenges.
- Access to justice is hindered by legal aid limitations, high lawyer fees, and complex court processes.
Recognition of Customary Law
- PNG is home to approximately eight million people, with diverse indigenous cultures and over 800 languages.
- Customary laws are recognized in varying degrees, from formal constitutional recognition to local tolerances.
- Many indigenous people rely solely on customary law for justice, particularly in rural areas or post-conflict settings.
- The Constitution acknowledges the dynamic nature of customary law, allowing it to evolve alongside common law.
Nature and Sources of Customary Law
- Customary law consists of norms and practices formed by community consensus and is integral to indigenous culture.
- Indigenous peoples' customary laws are often recognized as equal to statutory laws, with no inherent hierarchy.
- Dworkin's principle-based view aligns with customary law as a flexible, principle-driven legal framework that can adapt over time.
Proof and Repugnancy of Customary Law
- Recognition of customary law faces challenges in distinguishing it from habitual customs and ensuring alignment with contemporary moral values (repugnancy rule).
- The relationship between customary law and proof standards varies, with some courts requiring witness evidence while others accept judicial notice of notorious customs.
- The judiciary must balance respect for customary practices with adherence to minimum standards of civil society, posing ongoing dilemmas in legal proceedings.### Repugnancy and Public Policy Rules
- Elias critiques the British legal system for its failure to balance custom and colonial law, particularly through the repugnancy and public policy rules.
- The repugnancy rule allows courts to deviate from customary law not based on its inherent morality but on the case-specific implications deemed repugnant by the court.
- The evolution of the repugnancy rule post-decolonization highlights a shift toward respecting customary laws rather than outright rejection.
Codification of Customs
- Codified customs become legally binding and must be interpreted carefully by the courts to avoid stifling the evolution of customs.
- The 1985 claim regarding native ownership of Fisherman's Island showcases complexities in proving customary rights and choosing applicable laws.
- The National Court emphasized that claims for compensation should align with local customs rather than common law.
International Recognition of Customary Law
- Indigenous rights to customary law are recognized internationally, requiring states to acknowledge their governance according to traditional laws.
- The "Indigenous and Tribal Peoples Convention 1989" mandates that national laws respect indigenous customs unless incompatible with fundamental human rights.
- The United Nations Declaration on the Rights of Indigenous Peoples supports self-determination and legal recognition of indigenous lands and customs.
Recognition of Customary Law in Constitutions
- Constitutions of 112 countries include provisions on recognizing customary law, often limited by conflicts with national laws and human rights standards.
- Customary law must attain a "force of law," determined by the community, the courts, or the legislature, leading to varied interpretations.
Customary Law in Papua New Guinea (PNG)
- The PNG Constitution incorporates customs under its National Goals and Directive Principles, emphasizing local social and cultural systems.
- Customary law is acknowledged as part of PNG’s underlying law, regulated by the Underlying Law Act of 2000 and the Customs Recognition Act of 1963.
- The Constitution defines custom broadly, allowing for contemporary practices to be recognized without the need for immemorial status.
Guidelines for Custom Adoption
- Various guidelines must be considered when customs are proposed for legal adoption:
- Inconsistency with the Constitution or national laws.
- Potential to cause injustice or conflict with public interest.
- Provisions protecting the best interests of children.
Dynamic Nature of Customary Law
- The PNG Constitution affirms that customary laws will evolve and remain integral to the legal system, reflecting the dynamic aspect of indigenous practices.
- The definition of customary law in the PNG Constitution diverges from common law tradition, acknowledging laws that do not require immemorial status.
Indigenous Peoples and Customary Law
- Advances in national and international law recognize indigenous peoples' rights to self-governance, legal regimes, and ancestral rights.
- Customary law is integral to indigenous cultures, constantly evolving to reflect societal changes.
- Customary law serves as a basis for national and municipal laws, influencing various legal areas, including contract, family, and international law.
Characteristics of Customary Law
- Customary law differentiates itself from statutory law by deriving authority from social acceptance rather than formal enactments.
- Historical significance: Customary law has influenced major legal traditions including civil law systems, Shari’a, and English common law.
- Section 57 of constitutional law protects individual rights and allows enforcement through the Supreme Court or National Court.
Human Rights Context
- Human rights discourse has shifted towards collective rights, acknowledging the self-determination of indigenous peoples.
- During conflicts, such as the Bougainville crisis in Papua New Guinea (PNG), customary laws became predominant due to failures of formal legal systems.
- Engaging local populations in governance and respecting their customs enhances trust in human rights protection.
Implications of Codifying Customary Law
- Customary law offers a framework governing rights to land, resources, and cultural heritage, serving as a primary source of law for many indigenous communities.
- The dynamic nature of customary laws promotes community harmony and addresses social obligations while resisting rigid definitions.
Challenges and Recognition
- Formal recognition of customary law in international and domestic frameworks is relatively recent, despite its longstanding acknowledgment by legal philosophers.
- Customary law continues to adapt to changing circumstances and societal needs, highlighting its relevance within modern legal frameworks.
Studying That Suits You
Use AI to generate personalized quizzes and flashcards to suit your learning preferences.
