Intro to Law T1-T6.docx

INTROCTION TO LAW Teaching in Papua New Guinea Alfred P Minei School of Law, University of Papua New Guinea February 2024 Introduction to Law Topic 1 Why study Law? Objectives Student will be able to define and identify various law terminology and vocabulary Student will be able to understand the role of law in a society. Lesson Plan Student to break into Tutorial Groups Student Lesson Procedure Tutors – Outline various points to discuss. Adding “real life” examples and ideas are important, as well as a class discussion around each idea. For example – Introduce the concept of law by discussing what would happen to a society, or at school, or a business, if there were no laws. Chaos, confusion, and how our society as we know it would cease to exist are some of the points to discuss. Definition and vocabulary Legal Systems Legal systems have always been an important part of every society. Legal systems help us take care of conflicts, punish individuals who violate (break) the law, and solve problems. A legal system is defined as a set of laws adopted by a society. In PNG it comprises parliament and other bodies which are empowered to make laws, and the courts, including judges and magistrates. The senior legal officers, e.g., the Justice Ministry/Attorney-General, Secretary, the department of justice/attorney general, solicitor general, public solicitor, public prosecutor, the legal profession, the police, the correctional services, etc. The Legal system in PNG is derived from, and in many respects resembles, the English legal system. A breach of the law is usually attended by legal consequences or sanctions. The Law does not operate in a vacuum. It operates within the parameters and complexities of society. The law comprises particular rules which deal with various aspects of human life, for example, marriage, divorce, succession, the conduct of government, etc. Further reading, Rudolph W James and John Y Luluaki. Introduction to the legal system of PNG (2011). Modern Legal Systems of the World. There are four legal systems in the modern world: Common law; Civil law Religious law; and Customary law / monarchy. Common law legal system is adversarial. This means that the parties bring their cases to the court for resolution. The judge or jury hears the parties’ evidence and arguments before making a final decision. It is the parties’ burden to investigate the facts, argue the law, and present their best case. There are characteristics of common law systems. You must read to understand. Civil law systems were developed in Europe and are based on Roman and Napoleonic law. Civil law systems are also called code system because all the legal rules are in one or more comprehensive legislative enactments. Religious law systems arise from the sacred texts of religious traditions and usually apply to all aspects of life, including social and business relations. In religious legal systems, a religious document is used as a primary legal source. All major world religious: Judaism, Christianity, Islam, Buddhism and Hinduism. Customary law systems are becoming increasingly less common. A customary system is used by a monarchy and grants specific legal powers to the kings, queens, sultans or tribal leaders as heads of state. A challenge of a customary system is that the ruler is seen to be “above the law” because the laws do not apply equally to the ruler and subjects. As the world becomes more interdependent, a fifth category of legal systems has developed, the hybrid legal system, which is a legal system that is a combination of two or more legal systems. The next few definitions and vocabulary that students needed to familiarize with, these are: Norms Norm is a standard or custom shared by members of a group about how they behave. Norms can be informal or formal (law). A Sanction describes the techniques for maintaining social control over society. We are rewarded if we follow norms of society, but we don’t follow the norms, we face sanctions (punishment). Social Engineering Social engineering is a process of developing and controlling society through law Social engineering is evident today in our society. An example is minority rights. Our legal system is flexible. Law terminology Disputes Litigate (lawsuit) (c) Plaintiff (d) Defendant (e) Negligence (f) Contributory negligence Students must read and select from the list of references in the course outline to understand why study law. The session is informal and students and the tutors through the tutorial class will discuss what is being told at the formal gathering. A number of professional lawyers and academics are being invited to talk about why they chose to study law and what law training has made them to be what they are. Introduction to Law Topic 2 Nature of Law Objectives After studying this lecture, you should understand the following main points: The nature of law The ways in which the law may be classified, including the differences between public and private law, civil and criminal law and common law and equity The development of PNG Underlying Law and the common law of England and equity The basic principles of legal liability, such as the distinction between civil and criminal liability. The Law affects every aspect of our lives; it governs our conduct from the cradle to the grave and its influence even extends from before our birth to after our death. Our society has developed body of rules to control the activities to members. There are laws which govern working conditions (e.g., laying down minimum standards of health & safety), etc. So, what is ‘law’? and how is it different from other kinds of rules? Law has different meanings as well as different functions. Philosophers have considered issues of justice and law for centuries, and several different approaches, or schools of legal thoughts, have emerged. In this course, we will look at those different meanings and approaches and will consider how social and political dynamics interact with the ideas that animate the various schools of legal thoughts. We will look at these during our lectures. Please follow with me. What is Law? Historically, many philosophers, historians, sociologist, and political scientists have tried to accurately define law. Aristotle (384-322 B.C.) took his cue from the Greek system that world was ordered by a natural law. He tried to combine moral principles with legal principles into the “ideal”, or natural law. St. Thomas Acquinas (1224-1274) shared the “ideal” law view with Aristotle, but defined law as a transcendent law. Law is a word that means different things at different times. Black’s Law Dictionary says that law is “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens’ subject to sanction or legal consequence is a law. Opposite: lawless – not controlled by law; unruly; illegal. Jurisprudence – the formal science of positive law. Further reading, Philosophy of Law (is also called jurisprudence). Schools of Legal Thoughts, two main schools are: legal positivisms and natural law. Functions of the law In a nation, the law can serve to, Keep the peace Maintain the status quo Preserve individual rights Protect minorities against majorities Promote social justice, and Provide for orderly social change. Some legal systems serve these purposes better than others. Although a nation ruled by an authoritarian government may keep the peace and maintain the status quo, it may also oppress minorities or political opponents (e.g., Burma, Iraq, Russia, China, etc.). Under colonialism, European countries often imposed peace in countries whom borders were somewhat arbitrarily created by those same nations. Law and Politics In most nations or states (as countries are called in International law), knowing who has power to make and enforce the laws is a matter of knowing who has the political power, in many places, the people or groups that have military power can also command political power to make and enforce the laws. Each year there are revolts against existing political-legal authority; an aspiration for democratic rule, or greater “rights” for citizens, is a recurring theme in politics and law. Law and Justice When law is called upon to resolve a societal dispute, should produce result that is just and fair. This is supported by the PNG Constitution which provides that in interpreting the law the courts shall give paramount consideration to the dispensation of justice. The provision and section 41 are in recognition of the fact that law is not always synonymous with fairness or justice. There are many rules of law in PNG which can create injustice in their application in individual cases. And what does one make of the laws made by those brutal and oppressive regimes in various parts of the world that we see and watch through mass media? What can be said is that if the law is to be respected and willingly obeyed by society, it must conform to a minimum standard of fairness or justice. Further reading, Rudolph W James and John Y Luluaki. Introduction to the legal system of PNG (2011). Classification of law Categorization is the process of identifying species of the same genus, and comparing and contrasting the categories. It serves pedagogic functions: Law is a very wide field of study. It covers a whole range and variety of human activities and dealings. Therefore, in order to teach or discuss it in a way that is comprehensible, it is usual and convenient to divide it into categories or classes. Where there is a plural legal system, the categorization of law is the first step to determine the proper applicable law. The overlapping categories, however, sometimes make categorization misleading. There are various ways in which the law may be classified; the most important are as follows: Public and private law. Public law. Public law is concerned with the relationship between the state and its citizens. This comprises several specialist areas such as: Constitutional Law Administrative Law Criminal Law Private Law. Private law is primarily concerned with the rights and duties of 9ndividuals towards each other. The state’s involvement in this area of law is confined to providing a civilized method of resolving the dispute that has arisen. Thus, the legal process is begun by the aggrieved citizen and not by the state. Private law is also called civil law and is often contrasted with criminal law. Criminal and civil law. Legal rules are divided into 2 categories: criminal and civil. It is important to understand the nature of the division because there are fundamental differences in the purpose, procedures and terminology of each branch of law. Criminal law. It is concerned with forbidding certain forms of wrongful conduct and punishing those who engage in the prohibited acts. Criminal proceedings are normally brought in the name of the crown and called prosecution. In criminal cases you have a prosecutor who prosecutes a defendant in criminal courts. The consequences of being guilty are so serious that the standard of proof is higher than in civil cases: the allegations of criminal conduct must be proved beyond a reasonable doubt. If the prosecutor is successful, the defendant is found guilty (convicted) and may be punished by the courts. If the prosecutor is unsuccessful, the defendant is found not guilty (acquitted). Civil law. The civil law deals with the private rights and obligations which arise between individuals. The purpose of the action is to remedy the wrong that has been suffered. Enforcement of the civil law is the responsibility of the individual who has been wronged; the state’s role is to provide the procedure and the courts necessary to resolve the dispute. In civil proceedings a claimant sues a defendant in the civil courts. The claimant will be successful if he can prove his case on the balance of probabilities, i.e., the evidence weighs more in favor of the claimant than the defendant. If the claimant wins his action, the defendant is said to be liable and the court will order an appropriate remedy, such as damages (financial compensation) or an injunction (an order to do or not do anything). If the claimant is not successful, the defendant is found not liable. The main differences between civil and criminal law are: The main differences between criminal and civil law does not depend on the nature of the wrongful act, because the same act may give rise to both civil and criminal proceedings. Common law and equity. Legal rules may also be classified according to whether they form part of the common law or equity. The distinction between these two systems of law is rooted in history and can only be understood properly by examining the origins of English law. The common law. The Norman King ruled with the help of the most important and powerful mean in the land who formed a body known as the Curia Regis (King’s council). It acted as a primitive legislature, performed administrative tasks and exercised certain judicial powers. This led to the development of courts to hear cases of a particular kind. The Normans exercised central control by sending representatives of the King from Westminster to all parts of the country to check up on local administration. When they completed their travel round the country, the justices returned to Westminster where they discussed the customs they had encountered. By a gradual process of sifting these customs, rejecting those which were unreasonable and accepting those which were not, they formed a uniform patterns of law throughout England. Thus, by selecting certain customs and applying them in all future similar cases, the common law of England was created. Equity. Over a period of time the common became a very rigid system of law and in many cases it was impossible to obtain justice from the courts. There were defects of the common law, e.g., (i) the common law failed to keep pace with the needs of an increasingly complex society. The writ system was slow to respond to new types of action. If a suitable writ was not available, an injured party could not obtain a remedy, no matter how just his claim. (ii) men of wealth and power could overawe a court, and there were complaints of bribery and intimidation of jurors. It became the practice of aggrieved citizens to petition the king for assistance. The king passed them to the Curia Regis and a committee was set up. The hearings were presided over by the Chancellor. The chancellor had started his own court to address the petitions. The body of rules applied by the court was called equity. Equity is not a complete system of law. Equitable principles were formulated to remedy specific defects in the common law. They were designed to complement the common law rules and not to replace them. Equity has made an important contribution to the development of English law, particularly in the following areas: Recognition of new rights; and Introduction of new remedies. Some basic principles of legal liability It is a basic function of the law to set out the circumstances in which a person may be required to answer for his actions. Legal liability describes may arise from the operation of either the civil or criminal law. Civil liability It is concerned with the rights and duties which arise between private individuals. The aim of taking legal action is to put right a wrong which has occurred, often by means of an award of compensation. The area of civil liability which have the greatest impact on business are liability in contract and tort. Contractual liability It arises when two or more persons enter into a legally enforceable agreement with each other. The law of contract is concerned with determining which agreements are binding, the nature and extent of the obligations freely undertaken by the parties and the legal consequences of breaking contractual promises. Tortuous liability A tort consists of the breach of a duty by the law. The law of tort seeks to compensate the victims of certain forms of harmful conduct by an award of damages or to prevent harm occurring by granting an injunction. Examples of torts include negligence, nuisance, trespass, defamation (libel and slander) and conversion. Criminal liability A crime is an offense against the state. The consequences of a criminal conviction are not confined to the punishment inflicted by the court. The sanctions are so severe that the criminal law normally requires an element of moral fault on the part of the offender. Law of property The law of property is concerned with the rights which may arise in relation to anything that can be owned. Thus, property covers land, goods and intangible rights such as debts, patents or the goodwill of a business. In business it is necessary to consider the relationships which may arise between persons and property, namely, the rights of ownership and possession. PNG In PNG there are many ways of classifying law. The particular choice will be determined by one’s own inclination and the points sought to be highlighted or emphasized. For the present purposes, the following categorizations shall be discussed in Lecture (or topic) 5. Activity How would you define ‘law’? Why have a Constitution? List those provisions in the Constitution that empowers the courts to disregard the law ‘in the interest of justice’. Introduction to Law Topic 3 Sources of Law Objectives Describe the different sources of law in PNG legal system and the principle institutions that create those laws. Explain in what was a state is like a treaty, and vice versa. Explain why the Constitution is “prior” and the priority over the legislative acts of a majority, whether in PNG or in a state legislature. Describe the origin of the common-law system and what common law means. Sources of Law In the world today, there are numerous sources of law. The main ones are, Constitution (both states and federal), Constitutions are the foundation for a state or nation’s other laws, providing the country’s legislative, executive, and judicial framework. Among the nations of the world, the USA has the oldest constitution still in use. It is difficult to amend, which is why there have only been seventeen amendment following the first ten in 1789, two-thirds of the House and Senate must pass amendments, and three-fourths of the states must approve them. Statutes and agency regulations, and Statutes are passed by legislatures and provide general rules for the society. State have legislatures (sometimes called assemblies), which are usually made up of both a senate and a house of representatives. Judicial decisions: The common law consists of decisions by courts (judicial decisions) that do not involve interpretations of statutes, regulations, treaties, or the Constitution. Further reading, Sources of Law, Judicial Decisions: The Common Law. In addition, chief executives (the president and the various governors) can issue executive orders that have the effect of law. In International legal systems, sources of law include treaties (agreements between states or countries) and what is known as customary international law (usually consisting of judicial decisions from national court systems where parties from two or more nations are in a dispute. As you shall learn, these laws sometimes conflict: a state law may conflict with a federal law, or a federal law might be contrary to an international obligation. One nation’s law may provide one substantive rule, while another nation’s law may provide a different, somewhat contrary rule to apply. Not all laws, in other words, are created equal. To understand which laws have priority, it is essential to understand the relationship between the various kinds of law. Priority of Laws The Constitution as Presumptive Force (in PNG Law) The PNG Constitution takes precedence over all statutes and judicial decisions that are inconsistent. For example, if Waigani were to decided legislatively that students cannot speak ill of professors in state-owned universities, that law would be void, since it is inconsistent with the state’s obligation under the constitution to protect free speech. Statutes and cases Statutes generally have priority, or take precedence, over case law (judicial decisions). Under the common-law judicial decisions, employers could hire young children for difficult work, offer any wage they wanted, and not pay overtime work at a higher rate. But various statutes changed that. For example, the Public Service Management Act and Employment Act forbid the use of oppressive child labor and established a minimum pay wage and overtime pay rules. Treaties as Statutes: The “Last in Time” Rule A treaty or convention is considered of equal standing to a statute. Thus when Parliament ratified an agreement, any judicial decisions or previous statutes that were inconsistent such as … would no longer be valid. Causes of Action, Precedent, and Stare Decisis No matter how wrong someone’s actions may seem to you, the only wrongs you can right in a court are those that can be tied to one or more causes of action. Positive law is full of cases, treaties, statutes, regulations, and constitutional provisions that can be made into a cause of action. There are different sources of law in the world legal system. The constitution is foundational; the statutory and common law cannot be inconsistent with its provisions. In PNG parliament creates statutory law (with the signature of the Governor General), and courts will interpret constitutional law and statutory law. Where there is neither constitutional law nor statutory law, the courts function in the realm of common law or customary law (PNG). The same is true of law within the provinces (if any), each of which also has a constitution, or foundational law. The national and the provinces have created administrative agencies. An agency only has the power that the legislature gives it. Within the scope of that power, an agency will often create regulations, which have the same force and effect as statutes. Treaties are never negotiated and concluded by the provinces, as the national government has exclusive authority over relations with other nation-states. A treaty, once ratified by the national parliament, has the same force and effect as a statute passed by parliament and signed into law by the Governor General. Constitution, statutes, regulations, treaties, and court decisions can provide a legal basis in the positive law. A rule of law might be derived from customs or the Quoran, or Bible, an official report or a foreign judgment. In PNG, we place greater significance to a judge in adjudicating a dispute, the lawyer in advising his client or public employee in carrying out his duties is that finding the rule for application to the issue he or she is presented with that is, the legal source of the law. In this narrow sense, the sources of the laws of PNG are spelt in section 9 of the Constitution as the “Laws of PNG”. The formal source of law is that which gives law its validity. The PNG Constitution, it starts with the Preamble. In many countries, the formal source of law, that is, the independence Constitution. Legal sources In PNG, these are legislation, decided cases (precedents) and the underlying law. These sources correspond with the form that the law takes, viz. statute or enacted law, case law or the underlying law. The three legal sources of law are of major importance. Constitution and Organic laws The Constitution and the Organic laws constitute the constitutional laws of PNG, (schedule 1.2, 1.3 and 1.4 of Constitution). Organic laws are specifically authorized by the Constitution and they deal with very important matters such as the duties and responsibilities of leadership, the rights and independence of constitutional office holders, the Judicial and the legal Services Commission, National Elections, nomination of the Governor-General, the system of Provincial Governments, the Public Service Commission, etc. They implement important provisions of, and are subject to the Constitution. An Organic Law is defined by section 12 of the Constitution. Acts of Parliament When the National Parliament makes a law (other than a constitutional law), the law is referred to as an Act of Parliament. The National Parliament is empowered to make laws for the “peace, order and good governance of PNG” and Acts of Parliament “may provide for the matters that are necessary or convenient to be prescribed for carrying out and giving effect to (the) Constitution” (Constitution section 9). In making laws, the National Parliament must comply with the procedures laid down in the Constitution for that purpose and ensure that those laws are not in conflict with any of the constitutional laws. Provincial legislatures and Local-Level Governments have legislative powers to make laws and local-level laws respectively in the form of Acts on a number of specified matters. However, such legislative powers must be exercised within the limits allowed or imposed by the Organic Law on Provincial Governments and Local-Level Governments, 1995 and other constitutional laws (Organic Law on Provincial Governments and Local-Level Governments, sections 42, 44, 46, 138, 141). Delegated (Subordinate) Legislation Legislative power may be delegated or conferred by the law to an authority other than the National Parliament (or a provincial legislature). Statutory Interpretation The task of interpreting legislation is basically one of trying to ascertain the intention of the legislature. The court attempts to answer the question: what did Parliament intend by the use of the words, expressions or language that is in contention or dispute? Judicial principles/rules Plain – meaning rule Golden rule The mischief rule Other “Rules” (Aids to interpretation) Customs Let’s look at how custom is related to law in the legal system. The Constitution, sch 2.1(1), provides that custom is adopted and shall be applied and enforced as part of the underlying law, that is, the law that applies when there is no legislation governing the particular legal matter under consideration. It has been suggested that custom is capable of developing to extend to modern institutions and properties. Modern education, religion, urbanization and monetization of the economy are some of the factors that account that for changes in custom. Finding rules of customary law Rules of recognition Rules of custom (of customary law) are not usually found in written form. Accordingly, they are likely to be imprecise, flexible and often difficult to discover or prove. Rules of application Custom is not applicable to the extent that it is inconsistent with constitutional law or a statute or repugnant to the general principles of humanity. For a recent application of this limitation on customs see (Magiten v Beggie (2005) PNGLR). However, custom takes precedence over English common law and equity. Rules of enforcement Further, in any particular case or context, custom is not to be enforced by a court if doing so: - would result, in the opinion of the court, in injustice or would not be in the public interest, or in a case involving a child under 16 years of age, it would not be in the best interests of the child (Customs Recognition Act, s.3; R v Kaupa (1971-72) PNGLR 195). Case Law (Precedents) It has been noted that decided court cases or judgements are a source of law, referred to as case law. Next to legislation it is the most important source of law. If, for example, the Supreme Court, in the course of deciding a case before it, formulates a new rule of law, or assigns a meaning to legislation, that case will form a binding precedent to be followed in the future by the lower courts deciding similar cases. This use of prior decisions as examples in later cases is referred to as the doctrine of precedent (or stare decisis – to stand by the decision). Further reading, Rudolph W James and John Y Luluaki. Introduction to the legal system of PNG (2011). Rules of Precedent (stare decisis restated) It was pointed out that lower courts are bound by prior decisions of higher courts in deciding similar cases before them. This is referred to as the ‘doctrine of precedent’. The rules of precedent that are the hallmark of the doctrine will now be considered, seriatim. We see that precedent is a source of law of PNG. The system of precedent encompasses the Supreme Court, the National Court, and District Court. Village Courts are outside the system of precedent. Further reading, Rudolph W James and John Y Luluaki. Introduction to the legal system of PNG (2011). Activities Distinguish between subordinate legislation and Act of Parliament. State your understanding of an autochthonous legal system and comment on the advantages and disadvantages of the autochthonous Constitution. What are the ‘manner and ‘form’ and ‘entrenchment provision’ in the Constitution and what special purpose do they serve? Discuss the following principles/rules of interpretation, -the mischief rule, and -ejusdem generis Introduction to Law Topic 4 Laws of Papua New Guinea Objectives List and describe the laws of PNG as they are spelt out in the Constitution section 9, Discuss the scope of the Laws of PNG, and Discuss the importance of the Underlying Law. The Laws of PNG We have dealt with the three categories or legal sources of law in PNG. These are legislation, decided cases (precedents) and customary law. The form that the law takes reflects its source, i.e., statute or enacted law is the product of legislation; case law comes from the decided cases and customary law from customs and practices of the people. Section of the Constitution adopts a more specific classification, not based on any hierarchical structure, but on the significance of each source in the legal system. It states that the laws of PNG consist of: - This Constitution; The Organic laws; The Acts of the Parliament; Emergency Regulations; The provincial Laws; Laws made under or adopted by or under the Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and The underlying law, and none other.” From (a) to (e) are species of legislation with different objects, application and importance in the legal system. And (g) is substantially judge made law. And (f) deals with the application of pre-independence laws which were repealed immediately before the independence day by the Laws Repeal Act, 1975, and reintroduced by the Independence Constitution. “None other’ expresses a clear distinction between the legal source and the historical source’ e.g., books of authority. Courts have, however, made reference to books and other literary sources to ascertain a custom or practice of a people, and they are able to resort to travaux preparatories (i.e., the reports, debates in Parliament, etc.) to interpret the Constitution, and to international instrument which are adopted by Parliament. In contrast to the laws of PNG, in the U.K., ‘books of antiquity’ are authoritative; and ‘International law’ is generally recognized in common law countries as a source of law either under (1) treaty obligations, or (2) customary international law. The latter is the product of consensus amongst the community of nations. Its importance is expressed by Lord Lloyd in the Pinochet case: “The application of international law as part of the lands means that, subject to the overriding effect of statute law, rights and duties flowing from the rules of (customary international law) shall be recognized and given effect by the English courts without the need for any specific act adopting those rules into English law”. The Constitution and Organic Laws Purpose of the Constitution (i) Establish (or creates) the institution of states and provides the rules and limitation of powers and functions of these institutions. (ii) Governs the relationship between the different institutions (e.g., Police, Defense, Public Solicitor, Public Prosecutor, Judiciary). Constitutional Law (Schedule 1.2) Means, this Constitution, a law altering this Constitution or an Organic law. Schedule 1.3, provides for the form of the Constitutional laws Schedule 1.4, constitutional laws speaks from time to time. Constitution is rules and practice that determine the composition and functions of the organs of central and local governments, in a state and regulate the relationship between the individuals and the state. Most states have a written constitution. One of the fundamental provisions of which is that it can itself be amended in accordance with a special procedure (sections 9, 13,14, 15, 16, 17, 18). Constitution provides the organs of the state. Interpretation Act, chapter 2 Defines most of the common words in laws in PNG. Where there is no definition or phrase is not clear, always refer to this Act (e.g., constitution Schedule 1, defines constitutional law). It is the will of the people of PNG that gives the Constitution, the Supreme law in PNG, and its validity (Section 11). For the Hierarchy of Laws, Constitution section 9. The provision enumerates the sources of laws. It is clearly an exclusionary clause and prohibits the creation and recognition of any other sources of law outside its ambit. Consider the following points as you read: (i) Origin and purpose of the relevant law (ii) Body makes the law (iii) Manner in which law is made (iv) How to amend or repeal the law (v) Subject matter dealing by the law (vi) Relationship of the law with other laws. Following the above, I said, section 9: Sets out the hierarchy of laws. It provides a list of laws. And t is very unique as it clarifies the issue of inconsistency of laws. First law is the Constitution section 9 (a). Further reading, chapter 2 of Kwa, pp5-13; Regan, Jessep and Kwa, chapter 1,2,3); Minei AP. Constitution of PNG, History, Sovereign of Parliament and Law Making powers. Unpublished Paper. School of Law, University of PNG. The Constitution overrides all other laws, as well as executive and judicial Acts. Any laws or Acts of Parliament that is inconsistent with the constitutional law is to the extent of the inconsistency, invalid (section 11). Organic Law Derives its status from the Constitution. They came about as a result of having the constitution to be short. For the Organic law to be enacted they must be authorized by the constitution, e.g., Ombudsmen Commission, Elections, Provincial Government and Local Level Governments, etc. They were enacted before the constitution came into effect, they were provisional organic laws. Section 12(3) of constitution, notes making alterations on the organic law Section 14, notes the making alterations or amendments fall into or applies, see (1976, PNGLR 491). This case is about Parliament Increases Election fees from K100 to K1000. Read this case. Organic law deals with very important matters such as duties and responsibilities of leadership, the rights and independence of constitutional office holders, the judicial and legal services commission, national elections, nomination of governor-general, system of provincial and local level governments, public service commission, etc. The making or alteration or amendment of an organic law requires special formalities and majorities in the national parliament, sections 12,14,16, and 17 of the constitution, Acts of Parliament Background: Schedule 1.2 constitution, also gives meaning of the Acts of Parliament. Section 100 gives power to enact Acts of Parliament. Section 109 (1), gives power to the Parliament to makes law for peace, order and good governance (open to court of law). Westminster style of government. Procedures for making an Act of Parliament, section 110, 11, 114 and 210. As well as the Standing Order of the Parliament. Procedures of making: Introduction of the Bill (by a member of parliament) 1st Reading 2nd reading and debate on the bill 3rd Reading and passage by a simple majority to pass the bill. Law certified by Speaker Gazette Brought into force on a later data, this to be certified by the Speaker of the Parliament. The procedures for repealing an Act of Parliament is similar to the procedure in the making Consider: laws having extra-territorial effects and retrospective effects (section 109 (1), section 109 (3)(b) and section 110 (2) relationship to other laws section 10. Note the limits imposed by the constitution, Minister for Lands v Frame (1980) PNGLR 473 Acts of Parliament can only provide for areas not covered under the constitution. Emergency Regulations Who make them (section 231 constitution. Procedure for making (section 231). Procedure for repealing or altering sections 231, 236 and 237. Relationship to other laws section 233(2) Made by Head of State based on advice by the National Executive Council (NEC), presented by the Speaker to the Parliament. An emergency Act or emergency regulation, make up the emergency laws. When an emergency is declared, those laws will deal with the emergency. After that, that law ceases from operations after the emergency. Emergency laws can only last 30 days, can be extended if it continues for another 14 days. Emergency orders Only made under an Emergency Act To be valid, made in writing to the Speaker of the Parliament Its purpose is solely filling gaps under emergency act. Can be altered anytime by Head of State acting on advice, or by Emergency Act or decision of Parliament. It can alter the basic rights under the constitution. Sections 35, 36, 45, 52, 55, 56 basic rights cannot be altered in case of emergency. Restrictive rights in section 236 constitution but it cannot alter the above. Includes imminent danger of war between PNG and another country, volcanic eruptions, and action that is likely to endanger public safety, section 226. It may alter the basic rights provisions of the constitution as well as other laws to the extent reasonably necessary to deal with the emergency, section 233 constitution. In case of emergency, they precedence over the Acts of Parliament. Provincial Laws All provincial laws are subject to the national constitution and other constitutional laws, section 187 constitution, and section 42 Organic Law on Provincial Governments & Local Level Governments. Note the following: Section 10 Organic Law PG&LLG, provides for the establishment of PGLLG legislatures Section 27, provides for the LLG Sections 42, 44 sets out the law making powers of the PG and LLG. Section 42, allows provincial legislatures to make laws on certain subjects (only 27) Section 44, allows LLG legislatures to make laws certain subjects (only 37) Laws must comply with the Organic laws. Provincial laws made by provincial legislatures are passed in the same way as the National Parliament. Failure for that enactment still does not make it in valid. It is still valid. Provincial laws are subject to the constitution, organic laws, and Acts of Parliament. Adopted Laws All pre-independence laws were repealed; this came into effect immediately before the Independence Day of 16th September 1975, section 3 constitution. National constitution came into force on Independence Day. It also provided for the pre-independence laws adoption as Acts of Parliament, or subordinate legislative enactment under such Acts schedule 2.6 (1) and (2). Reason, for flexibility, simple to enact than to other laws such as Act of Parliament. Come under various statutes, e.g., regulations. Define in schedule 1.2 constitution. Instruments made under statutes, under the constitution, rules of courts, standing order of the national parliament, Emergency regulation, etc. In terms of inconsistency between an Act of Parliament and legislative enactment, legislative enactment falls. See MV Tololo (1976) PNGLR 447. The Underlying Laws This is the unacted law that applies when there is no legislation governing the particular legal matter. This law is made up of custom, the principle and rules of English common law and equity and new rules of law formulated by the National and Supreme Courts. Section 20 of the constitution provides for the underlying laws and pre-independence statutes. Schedule 2 of the constitution prescribe Underlying Law Act. Section 20 constitution provides for the development of the underlying law Underlying Law Act 2000 prescribes Application and development of the underlying laws Section 3 & 4, sources of the: (a) customary laws, and (b) common law of England, immediately before the 16th September 1975 can be adopted. Section 4, a custom cannot be part of the underlying law because of the following: Inconsistent with a written law or Application and enforcement is contrary to Contrary to basic rights division III of the constitution “Principle”, custom is repugnant, (or goes against) the principle of humanity National and Supreme Court make the underlying law vested in the national /supreme courts. Read Madaha v PNG (1991) PNGLR 171 “None other” Failure to list custom in stating the “laws of PNG” and subsuming it in the “underlying law” must raise the question whether customary law is a legal or a historical source of law. All laws in PNG take their authority from and are subject to the Constitution, constitutional law. It is therefore the first and primary source of law. This constitution homegrown, meaning it is the peoples’ constitution. It came as a result of universal consultation by the Constitutional Planning Committee who went around the villages in PNG and obtained peoples’ views. Its legitimacy is in itself that is why it is homegrown and unique. Special notes We looked at some detail of the nature of underlying law and its sources, viz: customs, common law and equity. In our discussion it raises the fundamental question whether custom is a legal or best a historical source of law. Customs and customary law Customary laws are also defined as consisting of “established patterns of behavior that can be objectively verified within a particular social setting. The modern codification of civil law developed out of the customs, or coutumes of the middle ages, expressions of law that developed in particular communities and slowly collected and written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community.” A decisive factor in determining whether certain customs have status as laws is whether they have been viewed by indigenous peoples and local communities as having binding effect, or whether they simply describe actual practices. A similar concept applies at the level of international law, where customary law that binds states develops from the consistent practice of states who both follow a customary pattern but in doing so also accept that it has a binding quality (known technically as opinion juris, or belief that it is a law). Court is required to apply (among other things) “international custom, as evidence of a general practice accepted as law.” However, customary international law is only mentioned here by way of illustration; as discussed in the introduction, this study concerns the customary law of indigenous peoples and local communities, rather than international law as such. Customary International Law Customary international law is a constantly evolving body of largely unwritten law (custom based) that together with written law (treaties) goes to make up the corpus of international law. It derives from the practice of states and is accepted by them as legally binding. Unlike treaties which are only binding upon states that have ratified them, customary international law may bind states without any formal acquiescence on their part, unless they have clearly and persistently objected to the emerging concept as it develops. In PNG section 117 of the Constitution provides for international law. This provision creates a relationship binding at international law on PNG, whether embodied in a single instrument or in two or more related instruments and whatever may be its designation. The legislative approval or ratification of a treaty does not, without more, give it the status of municipal law for the purposes Subsection (7) … notwithstanding the consent of PNG to be bound as a party to the treaty unless it is given status of municipal law by or under a Constitutional law or an Act of Parliament. There are similarities that can be drawn between the processes for evolution and identification of customary international law and the customary legal regimes of Indigenous peoples; these are distinct, though at times interrelated branches of law. There is number of areas in which indigenous peoples’ rights have, according to Anaya, have been crystallized in customary international law. These include self-determination, land rights, and cultural heritage. Customary international law has been claimed to exist in relation to indigenous peoples’ rights to their traditional lands and natural resources, language, sacred sites, and cultural artefacts, as well as to their justice systems, which includes their customary laws and traditional decision-making authorities, a claim this study does not seek to substantiate. Indigenous Peoples’ Customary Law Customary law, says Ian Hamnett, emerges from what people do, or more accurately from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe. Customary law is also playing a key role in the identification of indigenous peoples’ rights to land and resources, re-defining their relationships with the state and third parties; scoping and informing their participation in decision-making processes; and guiding decisions on the approval or otherwise of projects for the exploitation of resources on or under their lands and of applications to access their resources and knowledge. In PNG for indigenous and tribal peoples’ customary legal regimes are the predominant, if not the only, system of justice to which they have access. Customs of the people exist to date, and while customs are not practiced much in the urban towns, they are widespread among the rural population that makes up the majority of the people in PNG. Including PNG, national constitutions recognize in varying degrees’ indigenous peoples’ rights to autonomy, to their customary legal regimes, traditional authorities, customary lands and resources, and cultures. However, if the recognition does not exist, national laws and judicial bodies may still recognize rights based upon customary law. Undoubtedly, customary law has taken its place within the framework of international negotiations on the protection of traditional knowledge at the Convention on Biological Diversity and World Intellectual Property Organization in both forums. In PNG, the indigenous peoples, through their representatives to the National Government, have argued that any system for the protection of their traditional knowledge must be based on their customary laws. Human rights which has been on the forefront of the process to secure recognition of customary law, has itself been transformed in the process. Changes have already been seen in shifts from a traditionally individualistic focus to one that embraces the notion of collective rights and recognize peoples as ‘peoples’ entitled to self-determination. In the provinces of the New Guinea Islands (PNG) region people have voiced their stand to become autonomous and one province shall soon become an independent state. During this time on the island of Bougainville, customs rule as the majority of the people prepare for full autonomy from PNG. Concluding remarks Whilst some legal sources of law (the Constitution, legislation and case law) are dominant in the legal system, the “underlying law” remains underdeveloped. It is possible to liken the underlying law to the common law of England, which over a period of time became the major source of English law; and it is argued here, that in time, the underlying law would become the dominant source of law in PNG. Activity Discuss the cause and effect of the laws Repeal Act 1975 in the legal system of PNG. (ii) Explain the validity of section 6 of Oil & Gas Act 1998. (iii) What makes the Constitution valid? (iv) What makes up the contents of the Constitution? (v) List the sources of the underlying law in PNG and comment on their relationship, and importance. Discuss. (vi) The “rule of law”, which forms a fundamental principle of the constitution, has three meanings, or may be regarded from three different points of view. Discuss. (vii) PNG Constitution has adopted the terms, define them (i) Non-justiciable In principle Introduction to Law Topic 5 Classification of Laws Objectives At the end of this topic, we should be able to: Set out the various methods of classifying law, Discuss the significance of the classification, and Have a comprehensive knowledge of law and the legal system. Law is a very wide field of study. It covers a wide range and variety of human activities and dealings. To teach or discuss it in a way that it must be understood, so that is why it usually and convenient to divide it into categories of classes, Where there is a plural legal system, the categorization of law is the first step to determine the proper applicable law The overlapping categories, however, sometimes makes categorization misleading. There are different ways of classifying law. The particular choice will be determined by one’s own inclination. For the purposes, the following categorizations are appropriate in PNG. Further reading, Rudolph W James and John Y Luluaki. Introduction to the legal system of PNG (2011). Customary and Introduced Laws Prior to contact with the outside world, most communities in what now is PNG were governed and regulated by customary law (officially referred to as Custom). Customary or indigenous law can be contrasted with the introduced or modern law. The introduced law is part of the colonial legacy. It is Anglo-Australian law modified to suit the circumstances and conditions of PNG. The administration of the introduced law presupposes the existence of formal courts, judges and magistrates, lawyers, the police and prisons. These are institutions and personnel that were alien to customary law. National and International Law Law can be divided into national law and international law. National law is referred to as State, municipal or domestic law. It applies within the boundaries of a nation or state. It governs the internal affairs in the state. The law recognizes two types of law, private and public. The former is called conflict of laws and resolves which system of law to apply in a plural legal society where the disputants are governed by different legal culture, e.g. civil law and common law. Public International law or International law simpliciter governs relations between nations, states or countries, entities of states and it also extends to international organizations or institutions such as the World Bank and the United Nation. Public and Private Law The distinction between public and private is illustrated in this brief. Public law: is concerned with the relationship between the state and its citizens. This comprises several specialist areas such as, e.g., Constitutional Law Administrative Law Criminal law Private law: is primarily concerned with the rights and duties of individuals towards each other. The state’s involvement in this area of law is confined to providing a civilized method of resolving the dispute that has arisen. Thus, the legal process is begun by the aggrieved citizen and not by the state. Private law is also called civil law and is often contrasted with criminal law. Torts and Contracts The law of torts is about what are termed as civil (as opposed to criminal) wrongs. These are wrongs that result in personal injury, injury to reputation and injury to property. Individuals wrongs include trespass to the person or property, deceit, nuisance, defamation, negligence, etc. A person who commits a tort or civil wrong is not a criminal. He is thus not liable to a criminal prosecution. He will be ordered by the court, if successfully sued by the injured party, to pay damages or compensation to the latter party. The law of contract is about agreements, which the legal system will enforce. It is the foundation of virtually all business transactions. Business is largely concerned with the application of the law of contract in specific situations include: sale of goods, hire purchase, employment, agency and negotiable instruments. Criminal and Civil Law Laws are also classified as civil or criminal. Civil law is usually brought by a private party against another private party. For example, one company decides to sue another for breach of contract. Or a customer sues a business when injured by the company’s product. Most laws affecting business are civil. Civil Criminal Source of Law Statute or common law Statutes defining crimes Who files case? Business or individual The government (e.g. Dist. Suffering harm Attorney Burden of Preponderance of Beyond a reasonable Proof evidence doubt Remedy Damages, injunction, Punishment (e.g. fine or Specific performance imprisonment Purpose Provide compensation protect society or private relief Criminal law involves a governmental decision to prosecute someone for violating a criminal statute. If someone breaks a criminal law, he or she could lose their freedom (i.e., be sent to prison) or lose their life (i.e., if convicted of a capital offence). In a civil action, no one is sent to prison. Usually, liability results in the loss of property such as money or assets. Additionally, some law is procedural and some law is substantive. Procedural law describes the legal process and rule that are required and must be followed. For substance of the law or the merits of the claim, or action. Substantive law embodies the ideas of legal rights and duties and is captured by different sources of law, including the constitution, statutes, and common law. For example, if someone drives fifty-five miles per hour in a forty mile-per-hour zone, she has broken the substantive rule of law of the speed limit. However, how and what gets decided in court related to the speeding ticket is a matter of procedural law. Substantive and Procedural Law Many rules and regulations in law are substantive, and others are procedural. We are used to seeing laws as substantive, that is, there is rule of conduct or behavior that is called for some action that is proscribed (prohibited). The substantive rules tell us how to act with one another and with the government. For example, all of the following are substantive rules of law and provide a kind of command or direction to citizens: Drive not more than 50 miles per hour where that speed limit is posted Do not conspire to fix prices with competitors in the market Do not falsely represent the curative effects of your over-the-counter herbal remedy. Do not discriminate against job applicants or employees on the basis of their race, sex, religion, or national origin. Do not discharge certain pollutants into the river without first getting a discharge permit. In contrast, procedural laws are the rule of courts and administrative agencies. They tell us how to proceed if there is a substantive law problem. For example, if you drive 50 miles per hour in a 40 mile-per-hour zone on Main Street on a Saturday night and get a ticket, you have broken a substantive rule of law (the posted speed limit). Just how and what gets decided in court is a matter of procedural law. Is the police officer’s word final, or do you get yours say before a judge? If so, who goes first, you or the officer? Do you have the right to be represented by legal counsel? Does the hearing or trial have to take place within a certain time period? A week? A month? How long can the state take to bring the case? What kind of evidence will be relevant? Radar? (Does it matter what kind of training the officer has had on the radar device? Whether the radar device had been tested adequately?) The officer’s personal observation? (What kind of training has he had, how is qualified to judge the speed of a car, and other questions arise). What if unwisely bragged to a friend at a party recently that went a hundred miles an hour on Main Street five years ago at half past three on a Tuesday morning? (If the prosecutor knows of this and the “friend” is willing to testify, is it relevant to the charge of 50 in a forty-mile-per-hour zone?). All state procedural laws must be fair, since the due process directs that state shall deprive any citizens of “life, liberty, or property,” without due process of law. Activity What is the difference between criminal and civil law? Discuss. Hannah gets a ticket for careless driving after the police come to investigate a car accident she had with you on Waigani drive. Your car is badly damaged through no fault of your own. Is Hannah likely to face criminal charges, civil charges, or both? Explain why equity developed and how it differs from the common law? Introduction to Law Topic 6 National Judicial System (Courts) Objectives At the end of this topic, we should be able to: Observe the differences between the National and Supreme Courts of Justice Distinguish between the superior and inferior courts, Discuss the jurisdictions of the courts, Note the differences between the review and appeal (of a decision), and Discuss the nature and functions of Administrative Tribunals. Judicial System of Papua New Guinea Administration The National Judicial System is the judicial arm of the Government of the Independent State of Papua New Guinea. It is established by the Constitution, various Organic Laws and enabling Acts of Parliament. The other two "arms of Government" under the Constitution are the Legislature and the Executive. The National Judicial System consists of Superior and Inferior courts; they are: Supreme Court of Justice, National Court of Justice and other Courts. The Supreme and National Courts are superior courts of records and accordingly, have power to punish the offence of contempt of court committed against them. Constitution, ss 160(2) & 163(2); The Public Prosecutor v Nahau Rooney (No. 2) (1979) PNGLR 448 The National Court has original jurisdiction in the most serious civil and criminal cases. Appeals from the National Court are heard by the Supreme Court. The lower courts comprise district, local and village courts (magistrates' courts dealing with certain customary matters). Other courts are not courts of record and therefore cannot commit for contempt except in circumstances discussed below (Law governing contempt of court). Law governing contempt of court Criminal contempt consists of words spoken or otherwise published, or acts done in or outside the court, which are intended or likely to interfere with or obstruct the fair administration of justice. Examples of contempt include: - Assaults committed in court, Insults to the court, Interruption of court proceedings, Publications that are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings, Publications that prejudice issues in pending proceedings, and Publications that scandalize, or otherwise lower the authority of the court. Disrespect of the Court, such as failure of counsel to turn up in court on time, amounts to contempt of court and is punishable. The remedy for contempt is punishment, between 1979-2003, which the National Court has imposed for contempt of court. These (few examples) are: The Public Prosecutor v Nahau Rooney (No. 2) 5-8 months’ imprisonment with light labour. John Rumet Kaputin v The State – 10 weeks’ imprisonment with hard labor substituted with K5000-00 fine in default 10 weeks’ imprisonment on appeal. (c) Allan Robinson v The State – Fine of K100-00 (d) Peter Luga v Richard Sikani, Commissioner Correctional Services & The State – 6 months’ imprisonment with hard labor. Supreme Court overturned decision on appeal by a majority of two to one. Courts other than the National and Supreme Courts are referred to as inferior courts. This means that they have limited jurisdiction (judicial authority), may only punish for contempt of court if specifically given the power to do so by statute, and they are generally subject to the control and supervision of a superior court, namely the National Court. Other Courts established under Section 172 of the Constitution, including the entire District Courts and Local Courts, Military Courts, Taxation Courts, Coronial Courts, Mining Warden Courts, land Courts, Traffic Courts, Committal Courts, Grade five courts, etc. The National Judicial System is one part of the National Justice Administration. The National Justice Administration is charged with the responsibility of administering justice in PNG. The other parts of it are the Minister for Justice and the Law Officers of PNG, namely, the Attorney General as the principal legal advisor to the National Executive, the Public Prosecutor and the Public Solicitor. In order for the National Judicial System to effectively plan and exercise the people's judicial powers and functions, it held a number of strategic planning workshops and retreats involving the judges and the management of National Judicial Staff Service. From those retreats and planning sessions, the National Judicial System Mission Statement, Core Values, Goals, strategies were designed, developed and adopted. National Judicial System Mission Statement "To provide equal access to an independent, fair and just judicial services to all people" Non-Judicial Administration The Constitution gives to the Chief Justice the responsibility over the administration of the affairs of the Supreme Court and National Court. A body called the National Judicial Staff Services (NJSS) was established by the National Judicial Staff Services Act 1987 to provide staff and other support services for the courts in the National Judicial System. The fund of the Supreme and National Court are given by separate appropriate of Parliament, and is managed by the NJSS under the control of the Chief Justice. The NJSS looks after the court buildings and institutional houses of the judiciary. Services such as provision of secretarial and clerical staff, library, research, legal, security, office vehicle and constitutional office-holders and ministers of State The National Judicial Staff Service has designed their mission statement consistent with the principle mission of the National Judicial System. National Judicial Staff Service Mission Statement "To administer and manage the court's resources in such a way as to ensure that the provision of justice through the courts is dispensed efficiently, effectively, fairly and in a timely manner." Jurisdiction of Courts The jurisdiction of a court is its legal power or authority to hear and decide a case brought before it. Jurisdiction has several aspects. First, there is the geographical or territorial aspect. The court’s jurisdiction may be limited to a defined geographical area. For example, a District Court has jurisdiction within the district for which the court is established. This is referred to as territorial jurisdiction. Second, a court’s jurisdiction may depend on the nature of the dispute. Thus, jurisdiction may be either civil or criminal depending on whether the acts complained of constitutes a crime or civil wrong. Third, even where it is clear that the jurisdiction is criminal or civil, it will still be necessary to determine which one of the many courts will hear the case. Courts in PNG are arranged in a hierarchical order. The seriousness of the matter and the amount of money involved in the dispute are some of the factors that determined jurisdiction in this regard. Generally speaking, the more serious criminal matters (referred to as indictable offences) are tried by the National Court, which less serious criminal matters (referred to as summary offences) are heard and determined by the inferior courts. As regards civil matters, the monetary or pecuniary jurisdiction of the National Courts is unlimited while that of the inferior courts is limited and decreases as one descends down the judicial hierarchical pyramid. Fourth, jurisdiction may be original or appellate. The original jurisdiction of a court refers to its authority to hear a case from the start or for the first time. The appellate jurisdiction is the authority to hear cases on appeal from a lower court. Concurrently with the National Court, the Supreme Court has power to enforce the rights and freedoms guaranteed by the Constitution, and other provisions of the Constitution. A brief description of the courts follows. The Supreme Court It is the final court of appeal; it hears appeal from the National Court. Also, the Supreme Court has inherent power to review all judicial acts of the National Court, and has such other jurisdiction and powers as are conferred upon it by the Constitution or any other law. To review a decision means to examine or consider the decision for purposes of correcting a possible error. The review jurisdiction is discretionary. The Supreme Court has held that the discretionary power to grant a review of a decision is exercised only where: - It is in the interest of justice, There are cogent reasons and convincing reasons or exceptional circumstances, and There are clear legal grounds meriting a review of the decision. The power of the Supreme Court to review a decision of the National Court is available even where an appeal from the National Court has been dismissed. There are fundamental differences between the Judicial Review and an Appeal. Sheehan J in SCR No. 1 of 1990; Re Electoral Commission refers to one of these as follows: “… by judicial review the Court can set aside an administrative decision without substituting its own decision. It does not assume the functions of the authority delegated to make the decision. It merely directs that the decision be made fairly and lawfully. In an appeal on the other hand the appellate tribunal may substitute its own decision on the merits for that of the administrative body, officer or court below.” Although the Supreme Court is the final court and the emphasis is on finality of the law the Supreme Court is not bound by its previous decision. Further, the principle of finality would suggest that the Supreme Court should not be able to review a decision which it has given. However, adopting principles of the common law it was held that in: exceptional cases” it would resort to the “slip rule” to set aside its own decision and this is so irrespective of the jurisdiction under which the original matter came to the court, see for example the judgement in SCR No 3 of 1999. Seven general principles govern the determination of a slip rule application: There is a substantial public interest in the finality of litigation; On the other hand, any injuries should be corrected; The court must have proceeded on a misapprehension of fact or law; the purpose is not to allow rehashing of arguments already raised; The purpose is not to allow new arguments that could have been put to the court before; The court must, before setting aside its previous decision, be law or fact on a critical issue. The National Court The composition of the National Court is the same as that of the Supreme Court, namely, the Chief Justice, the Deputy Chief Justice and all other judges. However, acting judges may be appointed to the National Court. In relation to any particular matter, the National Court is usually constituted of a single judge, sitting alone. However, in exceptional circumstances, a statute may provide for assessors to sit with the judge hearing a case (see for example, National Court Assessor Act). Also, the jurisdiction of the National Court may be exercised by a number of judges sitting together. This mean that, apart from questions relating to the interpretation or application of constitutional laws, The National Court is a court of unlimited original jurisdiction. This means that, apart from questions relating to the interpretation or application of constitutional laws, which are exclusionary reserved for the Supreme Court, the National Court has, in theory, unlimited judicial power to hear and determine any criminal or civil matter. However, in practice, the National Court tries only the more serious offences, leaving the less serious ones to be disposed of by the District Court. In relation to civil matters, the National Court usually hears only cases involving substantial amounts of money or where the remedy sought cannot be granted by the inferior courts. Additionally, civil jurisdiction in certain areas, e.g., company matters, insolvency and defamation, is exclusively vested in the National Court. The National Court is also a court of appeal. It hears appeals from the District Courts, as well as from a number of administrative bodies or tribunals, e.g., the Land Titles Commission, Medical Board, Income Tax Review Tribunal, the Liquor Licensing Commission, etc. Further, the National Court has jurisdiction to enforce the Constitution, an inherent power to review any exercise of judicial authority and such other jurisdiction and powers as are conferred on it by the Constitution or any law. As regard the practice and procedure in the National Court, one should consult the National Court Rules. District Courts District Courts are established under the District Courts Act (DCA). They are presided over by magistrates. These magistrates are the Deputy Chief Magistrate, Principal Magistrates and District Court Magistrate. The Chief Magistrate has overall responsibility for the District Courts. Section 2 of the Magisterial Service Act states that he: - Is responsible to the (Judicial and Legal Services) Commission for the efficient functioning and operation of Service; and Has such powers, functions, duties and responsibilities in relation to the service (including disciplinary powers over magistrates) as are conferred or imposed on him by the Conditions of Service Determinations; and Shall carry out any direction or instruction by the Commission in relation to the Service; and Is responsible for the posting of magistrates; and Is responsible for the allocation of duties as between magistrates posted to the same place; and as directed by the Commission, shall submit to the Commission reports on the Service and on individual magistrates. A District Court is normally constituted by a single magistrate, but more than one magistrate may sit together to hear and decide a case. District Court are established for specified areas. Except for the National Capital District, these areas correspond with the provinces. Accordingly, their jurisdiction is limited to the specified areas within the Provinces. Being an inferior court, District Courts have limited criminal and civil jurisdiction, as spelt out in the District Courts Act. The actual jurisdiction of the court varies with the status of the presiding magistrate i.e., whether he is a Principal or District Court Magistrate. As regards criminal jurisdiction, District Courts can try summary, and some of the indictable offences. Generally speaking, summary offences are the less serious ones, while indictable offences are the more serious ones. In relation to some indictable offences, the jurisdiction of the District Court is limited to deciding whether there is sufficient evidence to send (or commit) the accused for trial by the National Court. Such a decision is made at what is referred to as a committal hearing. What we might called hybrid. What we might call hybrid offences are those indictable offences that might be tried in the District by a Principal Magistrate, summarily. Hill and Powles, Magistrate Manual at p.124, state that there are 80 of these Indictable offences which are reserved for the National Court and cannot be tried summarily are murder, treason, for example. The District Court has civil jurisdiction over all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed: - Where the Court consists of one or more Principal Magistrates – K10,000; and Where the Court consists of one or more Magistrates K8,000 and below. However, these pecuniary limits do not apply in cases where, by virtue of any other law, money, irrespective of amount, is recoverable in a District Court. A District Court has no jurisdiction in the following cases: - Disputes under the wills and settlements; The infringement of trade names; Slander of title; Illegal arrest, false imprisonment or malicious prosecution; Seduction or breach of promise to marry; or disputes relating to title to land. Appeals from the District Court lie to the National Court. District Courts have appellate and review jurisdictions over decisions of Village Courts. District Court magistrates also act as Provincial Supervising Magistrates for Village Courts. Not being a court is accorded the jurisdiction to commit for contempt by the District Act. Local Courts They were established under the Local Courts Act, ch 41, which set out their jurisdiction. They were presided over by magistrates’ grades II and I. These were referred to as Local Court Magistrates and Senior Local Court Magistrates, respectively. In 2000 the local Courts Act was repealed in its entirety thereby also abolishing the Local Courts. The jurisdictions as at the date vested in the District Courts presided over by Magistrates Grade II. The Magistrates of the District Court, together with the Chief Magistrate and Deputy Chief Magistrate, constitute the Magisterial Service. The chief Magistrate is responsible for the efficient functioning and operation of the service. As head of the service, he posts magistrates, allocates duties as between magistrates posted in the same place, makes reports on the service and on individual magistrates, and has disciplinary powers over magistrates and supporting court staff. The Chief Magistrate is assisted by the Deputy Chief Magistrate. Both are ex-officio members of all District Courts, and have the same jurisdiction as the highest grade of magistrate, that is, magistrate grade V (or Principal Magistrate). In each Province, a magistrate is designed Senior Provincial Magistrate, with such judicial and non-judicial powers, functions, duties and responsibilities, in relation the province, as are conferred on him by the conditions of the service determinations, or delegated to him by the Judicial and legal Services Commission or the Chief Magistrate or as directed by the Chief Magistrate. Village Courts (Community Courts) Village Courts are established under the Village Courts Act and the Organic Law on Provincial Governments and Local-Level Governments, 1995. A Village Court is constituted by at least three village magistrates, comprising the Chairman, Deputy Chairman and other magistrates. The Chairman, or, in his absence, the Deputy Chairman, presides over the court. As far as possible, village magistrates should be representative of the traditional population groupings of the area in which the court is established. In exceptional cases, a Village Court may be constituted by one village magistrate. A village Court is established for a specified area which does not correspond with a village in the strict sense, but may consist of a number of villages or settlement groups. Accordingly, its jurisdiction is limited to the area for which it is established. In relation to any dispute, a Village Court has jurisdiction where:- The dispute arose within its specified area; or The subject matter of the dispute is within the specified area; or All the parties to the dispute are normally resident within the specified area; or Some of the parties to the dispute are normally resident within the: specified area and the others consent to the jurisdiction. The criminal jurisdiction of a Village Court is generally limited: - Certain prescribed offences; Contraventions of, or failure to comply with, local-level government rules or provincial laws; Keeping and maintaining the peace; and Ensuring that the orders of the court and those of village peace officers (i.e. village policemen) are obeyed. A Village Court may impose a fine, generally not exceeding K200.00, or impose a term of imprisonment not exceeding six months. However, no order for imprisonment is effective unless it is endorsed by a District Court or Local Court magistrate. Instead of imposing a fine or a term of imprisonment, the Village Court may order the offender to perform, for community purposes, specified work, for a period not exceeding: - Eight hours in any day; or Six days in any one week; and A total period of six months. As regards civil matters, a Village Court has jurisdiction: - To order the payment of compensation or damages or the repayment of a debt, up to K1000.00. However, this pecuniary limitation does not apply in matters relating to bride price or the custody of children or death, where the court may award such amount of compensation or damages as seem just To order a party to a dispute to perform specified work for the benefit of an injured or aggrieved party, for a period not exceeding twelve weeks; To make an order as to the custody or guardianship of an illegitimate child or a child born of parents married under customary law; and In relation to land that is the subject of a dispute as to its ownership by custom, or the right by custom to its use, to make temporary orders relating to its use or occupation, pending a decision on the dispute by the appropriate Land Court. A Village Court has no civil jurisdiction in relation to a matter involving the ownership of land (except as stated above) or a dispute involving the driving of a motor vehicle. A person who is ordered, but fails to pay compensation or damages, or to repay a debt, may be ordered to serve a period of imprisonment not exceeding six months. The primary function of a Village Court is to ensure peace and harmony in the area for which it is established, by mediating in, and endeavoring to obtain just and amicable settlements of disputes. The performance of this basic function must be reflected in the Village Court exercise of both criminal and civil jurisdictions. Indeed, in any dispute, be it civil or criminal, a Village Court is required, as a first step, to attempt to reach a settlement by mediation. The court may even adjourn any on-going proceedings, if it thinks that by doing so, a just and amicable settlement may be reached. When a settlement is reached its terms are recorded and are treated and enforced as a court order. In all matters before it, a Village Court is required to apply any relevant custom, whether or not it is inconsistent with an Act. Otherwise, a Village Court is not bound by any law (other than the Constitution and Village Court Act itself) that is not expressly applied to it, but must decide matters before it in accordance with substantial justice. Village Courts are supervised by a Provincial Supervising Magistrate and a Deputy Provincial Supervising Magistrate. An appeal from a decision of a Village Court lies to a Magistrate. Additionally, he may review a decision of a Village Court. A further review may be made by the Provincial Supervising Magistrate. An appeal is initiated by an aggrieved party himself, while a review is made by a magistrate on his own initiative. Lawyers are not permitted to represent parties in proceedings before Village Courts. Land Courts There are two types of Land Courts: the Land Court and the Provincial Land Court. Both are established under the Land Dispute Settlement Act (LDSA), to deal with disputes over customary land. The LDSA was enacted “to provide a just, efficient and effective machinery for the settlement of disputes” over customary land, by encouraging self-reliance through the involvement of the people in the settlement of their own disputes, and the use of the principles underlying traditional dispute settlement processes”. The thrust of the LDSA is mediation. It is only when mediation fails to produce a settlement of a land dispute that the Local Land Court may adjudicate over the dispute. The LDSA establishes a Provincial Land Dispute Committee for each province, under the chairmanship of the Senior Provincial Land Magistrate. The Committee may declare an area within the Province to a Land Mediation Area if, among other things, there are land disputes in existence in the area. A Land Mediation Area may be divided into Land Mediation Divisions. The Committee will then appoint not more than three Land Mediators, who may be village magistrates or other persons, for each Land Mediation Division. Where appropriate, ad hoc Land Mediation may also be appointed. The primary function of a Land Mediator is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which he is appointed, by mediating in, and endeavoring to obtain the just and amicable settlement of land disputes. He may seek the assistance of any customary disputes settlement authority that has customary jurisdiction in relation to the dispute. Thus, the first step towards the resolution of a dispute over customary land is mediation by a Land mediator. The Land Mediator may mediate a dispute on his own initiative or at the request of a party to the dispute or some other prescribed person or authority. If mediation is successful, and an agreement is reached between the parties to the dispute, the Land Mediator will record the fact of the agreement and the terms thereof, etc., and forward a copy of the record to the nearest Local Land Court. The parties to the agreement may apply to the Local Land Court to have the agreement approved. If approved, the agreement takes effect as an order of the Local Land Court. An unapproved agreement in not binding on the parties. If a dispute over customary land is and for is not resolved by mediation, the same will have to be referred to, and resolved by, a Local Land Court. A Local Land Court is established in and for a specified Province. Its jurisdiction is restricted to disputes over land wholly or partly situated with the specified Province. District Court Magistrates of Local Land Courts. However, District officers may also be appointed Local Land Court Magistrates. A Local Land Court is constituted as follows: An even number of Land Mediators (not being more than four); or Where the Court is constituted for the purpose of persons (not being more than four) who are normally resident in the area in which the land the subject of the dispute is located, appointed by the Local Land Magistrate in respect of each dispute before the Court. A Local Land Court has no jurisdiction over a land dispute, unless a Mediator certifies, inter alia, that the is no reasonable likelihood of an agreement being reached through mediation and there is a good reason for the dispute to be dealt with without delay. A Local Land Court hearing a land dispute may still attempt a settlement, and may adjourn the hearing, if it appears that by doing so, agreement may be arrived at between the parties. In order to preserve peace and order in the area, a Local Land Magistrate may make temporary order relating to the use and occupation of the disputed land, pending an agreement between the parties or a decision of the Local Land Court. Local Land Courts are not bound by any law or “rule of law”, evidence or procedure other than the LDSA but must endeavor to do substantive justice between the parties in accordance with the LDSA and any related custom. At the conclusion of the hearing, the Local Land Court may make an order, which includes provisions that: - The land in dispute be divided, or a boundary to the land be declared; The land in dispute be held in common by the parties, with or without conditions or limitations as to use; Compensation or customary tributes be paid; or A feast be given. Thus, compromise, as an aspect of the traditional disputes settlement process, is accorded its appropriate and rightful position. A Provincial Land Court is established in and for a specified Province. The principal Magistrate may be appointed as the Provincial Land Magistrate. The Court is constituted by a single magistrate, but Land Mediators may be requested to sit with the court as assessors. It has jurisdiction to hear and determine appeals from Local Land Courts where the land in dispute is situated wholly or partly within its area of jurisdiction. A person aggrieved by a decision of the Local Land Court may thus appeal to the Provincial Land Court. A decision of the Provincial Land Court is final and is not subject to further appeal. Lawyers were not permitted to represent parties in proceedings before Provincial or Local Land Courts. However, a Provincial Land Court may allow legal representation if the proceedings before it involve matters of unusual difficulty or complexity, and all the parties agree that legal representation is necessary, and the court is satisfied that legal representation is necessary. By section 15 of the Underlying Law Act Counsel appearing in a proceeding where questions of customary law arise, is required to help the court in the ascertainment of the law. Coroners’ Courts A coroner is appointed under the Coroners Act, ch 32 for a specific Province or specified Provinces. He is usually a magistrate of the District Court. However, District officers are, by virtue of their offices, coroners and have jurisdiction, power and authority as coroners throughout the country. A coroner’s duty or function is to hold an official inquiry or inquest into: The manner and cause of death of any person who is killed or in or under suspicious or unusual circumstances, including death occurring in corrective institutions and mental hospital; The cause and circumstances of the disappearance of any missing person, and into all matters and things that will reveal, or are likely to reveal, whether the missing person is alive or death, and if person is alive or likely to be alive, his or her whereabouts. A coroner sits alone. He has power to summon relevant witnesses to give evidence at the inquest, to punish those persons who refuse or fail to give evidence, to direct a post-mortem examination of the body of a deceased person to be carried out, etc. Witnesses are examined by the coroner on oath. A coroner is given, for purposes of an inquest, all the powers of a District Court as they relate to committal hearings of indictable offences, mutatis mutandis. After hearing all the relevant evidence, a coroner must give his decision or finding in writing. If the evidence so warrants, a coroner can commit a person for trial in the National Court for willful murder, murder, manslaughter or arson. Alternative Disputes Resolution New methods of and institutions for conflict resolution are coming into prominence, some are outside the formal court process e.g. through Administrative tribunals (discussed below), the “Truth and Justice Commission” of South Africa, and East Timorese, “Commission of Reception, Truth and Reconciliation;” others are located within the Court’s process such as medication. All are regulated by statute and involuntary in the sense the Parliament has decreed that certain disputes are subject to these processes, unlike other ADR processes e.g. arbitration, where the parties have a choice to adopt the process to resolve their disputes. They differ from the ordinary court processes in their informality, but they are governed by the same principles of fairness, openness and impartiality. Therefore, if there is no statutory appeal process, their decisions will still be subject to review. The judges in PNG are increasingly giving recognition to ADR. This development is apparent from the statements of the C.J. in National Capital District Comm. V Yama Security Services Ltd. Indeed, there is a fast developing trend in modern courts including our own, to move away from court litigation and encourage alternative ways of settling civil disputes. Courts nowadays increasingly and actively foster, encourage and even facilitate parties to negotiate, mediate, and settle claims before the court using alternative resolution (ADR) techniques and mechanisms. The benefits of ADR are many and these include a win-win situation for both parties, long term business and social relationships between parties. Indeed, notions of negotiation, mediation and compromise of disputes is a long-standing traditional custom in all traditional societies in this country and our courts should be able to tap into this valuable custom and develop ADR procedures which are appropriate to our own circumstances.” Administrative Tribunals In addition to the official courts, special bodies with judicial or quasi-judicial functions have been set up by statute. These bodies are referred to as administrative tribunals since “their operation is closely linked to the administrative matters of government”. An example of such a tribunal is the Liquor Licensing Commission, which is established under the Liquor. It has jurisdiction to hear and determine all cases arising in or concerning: The grant or refusal of liquor certificates, authorities or permits; The grant or refusal of the renewal or transfer of a liquor license; The cancellation or suspension of a certificate or license; The disqualification of licensed persons or licensed premises; Etc. Other examples include the Public Service Commission, the Leadership Tribunal, the Land Transport Board and the PNG Coffee Industry Board. An administrative tribunal derives its authority from the respective establishing statute. Accordingly, the field within which it operates is marked and limited by the statute. A tribunal’s decision must be made in accordance with the principles of natural justice, and in good faith. Its decision is liable to be declared as null and void and of no effect if it: - Commits an error of law which is apparent on the face of the record; Fails to observe the rules of natural justice; Gives a decision in bad faith; Had no power to make the decision; Fails to follow the prescribed formalities; Fails to take into account, matters it was required to take into account; or exercises its powers arbitrarily or unreasonably. Administrative tribunals have the advantages of speed, economy and expert knowledge, Unlike the ordinary courts, which are usually associated with detailed and complicated procedures, high costs and slowness in handling down decisions, administrative tribunals are frequently allowed to settle their own procedures, often exclude expensive legal counsel and their decisions are speedily handed out. Also, technical experts or individuals with specialized knowledge could contribute to speedy and better quality decisions. It is said that administrative tribunals can be capricious since, in some cases, they are not required to give reasons for their decisions and their proceedings are not held in public. Also, parties appearing before the tribunals may not be professionally represented. However, it should be pointed out that decisions of administrative tribunal are often appealed to the relevant Minister. Further, the National Court may strike down as null and void a decision of an administrative tribunal on the basis of any of the grounds mentioned above. Mediations Mediation as a process of resolving disputes whether they were about land, domestic or industrial matters existed from the time of man coming together to form society. Family mediation existed from the time of man coming together to form society. Family mediation became prominent in the 20th century. Mediation as an intermediary process in litigation (the pretrial conference) was an American devise to settle the dispute at an early stage of the litigation and avoid any further public and private expense in resolving it. In customary land disputes, the litigation process starts with mediation Land Disputes Settlement Act, s.17 and even if that is not successful and the matter proceeds to the Local Land Court, the Magistrate is able to mediate at any stage of the hearing “in order to reach a just, effective and amicable agreement between the parties to the dispute” or he can “adjourn a hearing if it appears that by doing so an agreement may be arrived at between the parties.” Both the District Court and the National Court have been vested with jurisdiction to mediate in civil matters. In the case of the District Court “at any stage of or before the hearing with a view to the just and amicable settlement of the matter”. By virtue of section 7B of the National Court Act the Court may order a resolution of a dispute or matter before it by mediation for an amicable resolution of the dispute; or order or direct it a proceeding or any part of the proceeding to be inquired into and resolved by an appropriately qualified and experienced person or an expert in the issue. A referral for the matter to proceed by mediation can be made by the judge at any stage of the proceeding, with or without the consent of the parties. Activity In what major ways can ‘criminal’ and ‘civil’ law be distinguished from each other? Compare and contrast the review and appeal jurisdictions of the National Court. Distinguish between the indictable, hybrid and summery offences, Discuss the advantages and disadvantages of Administrative Tribunals.

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