Indigenous Customary Law in Context-1 AAA.pdf

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/359283797 Indigenous Customary Law in Context Article in US-China Law Review · February 2022 DOI: 10.17265/1548-6605/2022.01.001 CITATIONS READS 0 2,175 2 authors, including: Alfred Minei University of Papua New Guinea 9 PUBLICATIONS 15 CITATIONS SEE PROFILE All content following this page was uploaded by Alfred Minei on 26 March 2022. The user has requested enhancement of the downloaded file. US-China Law Review, January 2022, Vol. 19, No. 1, 1-23 doi:10.17265/1548-6605/2022.01.001 D DAVID PUBLISHING Indigenous Customary Law in Context Alfred P. Minei University of Papua New Guinea, Port Moresby, Papua New Guinea Sam O. Kaipu Supreme & National Courts of Papua New Guinea, Port Moresby, Papua New Guinea For the indigenous people of Papua New Guinea (PNG), and for many of the indigenous peoples around the world, their own customary laws (non-state laws) are considered binding upon them, and their primary if not only source of law. Although long has been their recognition, in PNG, customary law was only recognized in 1975 as one of the laws under the PNG Constitution and considered to lie on the lowest level of the legal hierarchy. Nowadays, the advances in the national and international law and jurisprudence have clearly recognized the rights of the indigenous people to be governed by their own legal regimes and the states now have obligations to respect and recognize their laws and institutions and their ancestral rights. This paper aims to place within context the customary law of the indigenous peoples and their ethical appropriateness and sufficiency of the customs of the indigenous peoples. Keywords: constitutional law, customary law, indigenous customs and rules, human rights, PNG Introduction Customary law is present in all situations of everyday life. Intrinsically connected to the culture of the people whose conduct it is supposed to govern, it is subject to constant change and modification (Moore, 1978). In all the legal systems, it is manifest as such in national minorities and tribal laws (Tobin, 2011). It is found in: 1. Municipal or national laws and in court practices. It also forms the basis for international law. At the local level, it provides internal regulation for communities, clubs, associations, or groups of farmers. 2. Its influence is to be found in many areas of law, including contract, tort, family law, and private and public international law (von Benda-Beckmann & von Benda-Beckmann, 2006). 3. It plays a crucial role in defining the land and the resource rights and has increasing relevance to the formal law, such as the rules of evidence, equity and criminal law. 4. It plays an influential role in governing international commercial relations under the law merchant which arose from the practice of merchants (von Benda-Beckmann & von Benda-Beckmann, 2006).  Acknowledgements: We thank for their contribution in this research the following persons from University of PNG: Stephen Pokawin, School of Law; Lydia Hiawalyer, Centre for Human Resource Development; Sandra Kwabuna and Philip Sepelung in NCD, PNG. Alfred P. Minei, Ph.D. candidate, research fellow, School of Law, University of PNG, Port Moresby, PNG. Sam O. Kaipu, LLM, LLB, BA, Supreme & National Courts of PNG, Port Moresby, PNG. 2 INDIGENOUS CUSTOMARY LAW IN CONTEXT Simon Morgan (2010), worked on customary law and human rights, said that customary international law and other informal and non-state laws have the power to shape and influence the vast majority of human behaviour. Morgan (2010) had said, to secure the full and effective realization of the indigenous peoples’ human rights, the obligations and the concurrent rights of the people ought to be governed by their own laws since the customs and traditions are recognized principles of the customary international law. Thus, the term “customary” does not refer to an ancient, static law. Rather, customary law, like the culture from which it springs, adjusts over time, depending on the evolution of the society and changes in the environment around it. Customary law distinguishes itself from statutory law, because it is more closely attached to a people’s culture than statutory law. Unlike statutory law, customary law does not gain its authority from formal acts such as a vote at the parliament or of an assembly. Rather, it takes its existence and content from social acceptance (Woodman, 2004). Customary law has been viewed as a source of law by legal philosophers since the time of Plato. It played an important role in the formation of a majority of the dominant legal traditions (Glen, 2000), in the world, for example: 1. It became the law in Medieval Europe; it provided the basis for the English common law and influenced the civil law system, Shari’a and Hindu law (Glen, 2000). 2. In some countries, it works alongside national and religious laws as a fully functioning part of national legal governance, for example, adat in Indonesia and Malaysia (Glen, 2000), xeer in Somalia, and the customary regimes of secluded tribes in the north-eastern Indian states of Nagaland and Mizoram (von Benda-Beckmann & von Benda-Beckmann, 2006). Customary law is constantly developing as a body of largely unwritten law (custom based) that combines with written law (treaties) and together they make up the corpus of international law. It originates from the practice of states and is accepted by them as legally binding. The treaties are only binding upon states that have ratified them while 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 (Chirayath, Sage, & Woolcock, 2005). Rosenne Shabtai (2017), in her writing on international law, defined customary international law as: “Law derived from the consistent conduct of states acting out of the belief that the law required them to act that way” (p. 211). Brendan Tobin (2011) said that 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; they are distinct, though at times interrelated branches of law. There are a number of areas in which indigenous peoples’ rights have, according to Anaya, been crystallised in customary international law (Anaya, 2004). 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, languages, sacred sites, and cultural artefacts, as well as to their justice systems (Perry, 2011), which include their customary laws and traditional decision-making authorities, a claim this review seeks to elaborate latter. Indigenous peoples have long struggled for recognition of their customs, their set of rules, unwritten and referred to as “customary law”. It is the peoples’ rules that were made to protect their rights over lands, water, INDIGENOUS CUSTOMARY LAW IN CONTEXT 3 resources, culture and self-determination. Following years of being ignored and lacking recognition by the international law, in the recent times, there have been dramatic advances in the recognition of indigenous peoples’ human rights. Many states now have international instruments; the states formulated legislative and constitutional measures and promoted decisions of treaty bodies for the protection of indigenous rights (Tobin, 2013). The most important aspect of this renaissance has been the recognition of indigenous peoples’ rights to their own legal regimes and institutions (Tobin, 2013). For example, in the South Pacific region, legal recognition of customary law varies greatly in the region. The Constitution of PNG, for instance, recognizes custom as a source of law. While, Samoa’s constitution leaves it to the government and judiciary to determine which elements of customary law are to be recognized through acts of parliament or decisions of the courts. Vanuatu has adopted a progressive approach to recognition of customary law in many areas of governance, including provision of support for traditional resource management while leaving considerable flexibility to communities on issues, such as delimitation of protected areas, definition of permitted activities, sanctions and enforcement mechanisms. In Palau, the courts are increasingly viewed as becoming a part of customary processes of dispute resolution, while the inclusion of chiefs in legislature and state government bodies is seen as forging a compromise between Western and customary models of governance. This notion of compromise is also apparent in the Loyalty Islands Environment Charter, which seeks to articulate customary law principles in a fashion coherent to a western legal system. Samoa has promoted development of village fisheries management plans, creating a bridge between national law and customary law and practice. In the Solomon Islands, legislation has been developed which seeks to blend and synergize modern and traditional law, while seeking to retain the flexibility of the former. Pohnpei’s experience in the development of conservation law and policy has demonstrated the need for community buy in and increased co-management of resource conservation and sustainable use. While in PNG, with over 800 languages and 2,000 cultures, decentralization is seen as a key tool for responding to diversity (Tobin, 2013). In this article, we examine the nature, scope, characteristics, and the current status of indigenous (or local) peoples’ customary law from the PNG context. We also consider the continuing role of customary law alongside natural law and positive law as one of the primary sources of law and its status in the hierarchy of laws, with a view to determining how to recognize and strengthen its role in the promotion of indigenous peoples’ human rights. Indigenous Peoples’ Customary Law Customary law is an integral and coherent part of the contemporary legal system (Bederman, 2010). In PNG, the Constitution provides for the recognition of international law.1 This provision creates a relationship binding at international law whether embodied in a single instrument or in two or more related instruments and whatever 1 Constitution, Section 117, GovPNG (1975). 4 INDIGENOUS CUSTOMARY LAW IN CONTEXT 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 of the Constitution: Subsection (7). Notwithstanding the consent of Papua New Guinea to be bound as a party to a treaty, no treaty forms part of the municipal law of Papua New Guinea unless … it is given the status of municipal law by or under a Constitutional Law or an Act of the Parliament.2 Ian Hamnett (1975) expressed the view that customary law 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. What people do and how it is transformed into a norm, that is, what people ought to do, is an enigmatic process that has never been fully understood (Hamnett, 1975). In 1991, Bennett (1991) argued that the issue of definition of customary law had been largely discarded in favour of identification of the characteristics of customary law. Hamnett (1975) said one of the principal characteristics of customary law is its focus, not on, “…what does a judge say?” but rather “what do the participants in the law regard as rights and duties that apply to them?” (p. 54). In addition, Hamnett (1975) argued that customary law is to be found in concrete principles, the detailed application of which to particular cases is flexible and subject to change. Rattigan (2007) said, Custom in this Province is the first rule of decision in all questions regarding succession, special property of females, betrothal, marriage, divorce, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, any religious usage or institutions, alluvium and diluvium. (p. 1) Brendan Tobin (2011), in his study on the role of customary law, asserted that 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. He articulated that, in many situations, the indigenous and tribal peoples’ customary legal regimes are the predominant, if not the only, system of justice to which they have access. Traditional tenure, for example, regulates over 80% of land rights and significant marine areas in Pacific Island countries (Tobin, 2013), while 75% of land in Africa is subject to some form of customary tenure (Chirayath, 2011). In a few countries where the central government and people are affected by conflicts, customary law may be the only form of justice available. For example, the World Development Report claims that 85% of the population in Sierra Leone, in 2003, were primarily reliant upon customary law (World Bank, 2006) while, in Somalia and Sudan, it is now widely accepted that no rule of law programs can function unless it takes into consideration customary law (Simojoki, 2011; Pimentel, 2010b). Customary law is recognized in the national laws and jurisprudence. The rights of the people should be governed by their legal regimes and the obligation of the state is to respect and recognize their laws and institutions and the ancestral rights by upholding their rights. There is increasing recognition of customs and a growing need to develop it is a priority of the government. Despite its importance, customary law of indigenous peoples remained, until recently, largely unexplored except by social anthropologists (Stavenhagen, 2002). 2 Ibid. INDIGENOUS CUSTOMARY LAW IN CONTEXT 5 In PNG, customary law derives its form from the legal norms of customs of the people. It arises from the growth of repetitive acts of the people in their communities and the recognition of the repeated acts as they happen again and again (Jessep, 1998) whenever the occasion presents itself and such acts become common practice in the communities, much more so amongst the population in the rural areas. People accept and use the common practices as customary rules and precedents. While the diversity of the peoples’ customs vitiates any attempt at harmonization, there is growing recognition that customary legal systems are developing, largely oral in nature, and tend to promote a return to community harmony rather than retribution. The primary sources of custom are the stories, songs, dance, dress and ceremonies of the indigenous or local communities. The words of a woman leader in Manus (PNG) support this notion: “Our past must be seen to become our law today. It depends on the government to make them become part of the existing law, they can be enforced and receive its validity on the constitution”. PNG recognizes in varying degrees’ indigenous peoples’ rights to autonomy, customary legal regimes, traditional authorities, customary lands and resources, and cultures. However, even if the recognition does not exist, national laws and judicial bodies may still recognise rights based upon customary law. The peoples’ representatives in PNG’s National Parliament have argued that any system made for the protection of their traditional knowledge must be based on their customary laws. However, customary law regimes of indigenous peoples are given varying degrees of recognition throughout countries in Africa, Asia, Latin America, Pacific Islands, and in the main common law settlers’ states like Australia, Canada, New Zealand, and United States (Tobin, 2013), as well as many other countries. Customary Law, Rights & Freedoms, Human Rights and Rule of Law Customary Law Customary law has played a role within the framework of international negotiations on the protection of traditional knowledge at both the Convention on Biological Diversity 3 and World Intellectual Property Organization.4 Customary law has been the subject of research in many countries with regard to its role in provision of access to justice. In PNG, customs and its practices are widespread in communities where the most relevant justice system for the vast majority of the people is customary law. Our medico-legal research study in PNG (A. P. Minei, S. O. Kaipu, & J. M. Minei, 2020) noted the reasons which people advanced for the promotion of customary law: 1. There are elders that comprise of clan leaders including female leaders in the village set up. 2. They are available to help with disputes between parties where the formal court and or the police are non-existent in the rural areas. 3. There is a higher rate of parties reaching resolution more quickly, and disputing parties make lasting peace. 4. The parties can reach peace and the agreements made are always binding on each other. 5. The parties are free to seek appeal if they are not satisfied with the decision(s). What is clear in this system is that formal courts can be used only as a last resort. In the words of families in PNG, 3 Centre for Biological Diversity, https://www.biologicaldiversity.org/about/contact/. 4 World Forum, https://www.worldipforum.com. 6 INDIGENOUS CUSTOMARY LAW IN CONTEXT Go to the village elders to settle your disputes over land, marriage … who will take the case between you and the other person. The elders knew everyone in the dispute. They will find quick solutions, maintain order in the community, stability, and quickly bring peace among everyone involved. If you go to the elders and you are still not satisfied then go to town, see the police and go to the court. David Pimentel (2010a), the former head of the rule of law at the United Nations Mission in Sudan, in highlighting the importance of local legitimacy, and the lack of any significant alternative to customary law in South Sudan, said the following, Customary law mechanisms have deep cultural and historical roots and are effective in maintaining a sense of order, stability, and continuity of tribal society. Public confidence in them is high; higher than it would be in any newly imposed statutory court. And given the enormous population to be served and the dearth of judges qualified to adjudicate in statutory courts, Southern Sudan lacks the resources to replace customary courts with any alternative system. (Pimentel, 2010b, p. 32) Rights and Freedoms The PNG Constitution contains 16 basic rights and freedoms. These rights fall into three categories: fundamental rights, which apply to all persons and are open to fewer restrictions and qualifications; qualified rights for all persons and qualified rights of all citizens. The citizens are of course entitled to all three categories of rights and freedoms. The constitutional provisions on basic rights begin with s. 32 and end at s. 56. Sections 32, 33, and 34 merely define and explain the quintessence of the rights and freedoms (s. 32); save, guarantee and limit the exercise of other rights and freedoms under any other law (s. 33); and declare that the provisions on the rights and freedoms apply between individuals, governmental bodies and individuals, and apply to corporations and associations as to individuals (s. 34). Apart from s. 32(2), these three sections themselves do not create rights and freedoms, either fundamental, for all persons or special to citizens. Fundamental rights include Right to Life (s. 35), Freedom from Inhuman Treatment (s. 36), and Protection of the Law, especially for persons in custody or charged with offences (s. 37). We also perceive “Freedom from slavery” as an “undeclared” fundamental right which can be inferred from the strict prohibition of slavery and the slave trade in all their forms (s. 253). Rights of all persons comprise Liberty of the Person (s. 42) which, in the case of someone unlawfully or unreasonably detained, either in official custody or in private hands, may be the subject of a habeas corpus proceeding; Freedom from Forced Labor (s. 43); Freedom from Arbitrary Search and Entry (s. 44); Freedom of Conscience, Thought and Religion (s. 45); Freedom of Expression (s. 46); Freedom of Assembly and Association (s. 47); Freedom of Employment (s. 48); and Right to Privacy (s. 49). Among the several Special Rights of Citizens, Equality of citizens (s. 55) which affirms the equality of all citizens irrespective of race, tribe, place of origin, political opinion, color, creed, religion or sex, is perhaps the most profound declaration in the Constitution and it is critical as a strategy in addressing many of the human rights issues in PNG. Section 57 of the Constitution provides for the enforcement of the guaranteed rights and freedoms. Under s. 57, constitutional rights and freedoms shall be protected by, and are enforceable in, the Supreme Court or the National Court on the court’s own initiative or on application by any person who has an interest in their protection INDIGENOUS CUSTOMARY LAW IN CONTEXT 7 and enforcement, and in the case of a person unable to fully or freely exercise his rights, by a person acting on his behalf, whether with or without his authority. Section 58 provides for compensation or damages to be paid for breach of rights, including exemplary or punitive damages where appropriate. In many police brutality cases, the courts have awarded exemplary damages against individual police officers found guilty of breaching constitutional or human rights, as a means of deterrence. Human Rights Human rights which have been in the forefront of the process to secure recognition of customary law, had themselves 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 recognizes peoples and the “peoples” entitled to self-determination (Tobin, 2011). A case in point, in PNG, during the crisis on the Island of Bougainville, the formal legal system broke down or had otherwise lost its credibility, and customary rules applied for the majority of the population during the conflict on the island. Dialogue with the National Government, involvement of local people in decision-making and respect for their institutions and laws on the Island, are crucial for protection of their rights and for building trust in human rights law. The experiences in conflict and post-conflict zones have engendered a realization of human rights abuses and at the same time entrenched discrimination, and discredited traditional practices are in many cases responsible for breaches of individual human rights. Customary law may offer the only response to human rights abuses, especially where there is a breakdown in the legal order in the conflict areas. Looking to customary law for solutions in cases of sexual violence is problematic where tendencies exist to promote mediated solutions and acceptance by relatives of compensation often with the exclusion of the victim in the proceedings. This has been widely denounced and as a sign of the changing times, a proposal in Fiji to reduce penalties for sexual violence and apply customary law was effectively resisted by women’s groups, demonstrating that custom can be changed from within (International Council on Human Rights Policy [ICHRP], 2009). Rule of Law In PNG, the National Government consists of the National Parliament, an elected unicameral legislature with, subject to the Constitution, unlimited powers of lawmaking; the National Executive comprising of the Head of State and the National Executive Council (Cabinet); and the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, both having unlimited jurisdiction, and other courts.5 The respective powers and functions of the three arms shall be kept separate, in principle, from each other. The Constitution contemplates a general separation of powers between the three arms of government, the executive, the legislature and the judiciary. As a parliamentary system with an executive responsible to Parliament, the separation of the arms cannot be rigid. But the separation principle remains of basic importance in the Constitution and prohibits incursions by one arm of the government upon the basic functions of another. Nevertheless, as this separation of powers is descriptive only, no action can be founded on its breach, that is, such infringement is non-justiciable. 5 Constitution, Section 99, GovPNG (1975). 8 INDIGENOUS CUSTOMARY LAW IN CONTEXT The judicial authority of belongs to the people, but is vested in the National Judicial System to exercise on their behalf. The same applies to the legislative power and the executive power, the National Parliament exercising the people’s law-making power and the Head of State the people’s executive power in accordance with the advice of the National Executive Council. The independence and integrity of the judiciary should be intact despite significant national turmoil, including constitutional crises. In other words, the judges ought to be impartial and neutral in the discharge of their duties by applying principles of natural justice.6 They must apply the minimum requirement of the duty to act fairly and, in principle, be seen to act fairly. Access to justice includes public litigation, the right to legal aid, and removing obstacles to access to justice. Constitutionally, the Office of the Public Solicitor provides legal services for the public at large. Legal aid, however, is almost non-existent from this office (except for those charged with indictable criminal offences) as it is both critically under-funded and under-staffed. Other obstacles include excessive private lawyer fees, inaccessibility to courts and long and cumbersome court processes. Historic Treatment of Custom as a Source of Law There are an estimated eight million people in PNG and the majority are indigenous peoples with around 800 different languages and over 2,000 cultures. We weigh up the laws and legality in the context of state practices and opinio juris in order to demonstrate the existence or otherwise of a right of indigenous peoples to regulate their affairs in accordance with their own laws and practices. We acknowledge that in most areas, particularly where local peoples reside, their customary laws and practices are given direct or indirect recognition which range from formal constitutional recognition to tolerance of customary practices that, on the face of, it run counter to national law. In pockets of communities, the majority of people are living outside the reach of national law and customs are the only law they know, and customary law may prove to be the preferred law. This being the case in PNG, the only system of law to which the populace can turn in their search for justice is customary law. It is important to ensure the peoples live harmoniously, peacefully and have respect for one another and properties. The people follow and abide by the customs of the local area. Customs aid them to autonomously decide about what goes on in their family set up, community setting and for providing substantial evidence for the community in case a dispute arises between families or groups or among clans or tribal groups, for example, dispute over ownership of land, maritime fishing rights, or royalties for minerals extracted from their customary land under lease to the State. Securing the national recognition of the peoples’ rights to their customary laws has been a lengthy process in PNG. After Independence in 1975, there has been a slow progress in the development of customary law of PNG; however, over-time this limited progress significantly raised the profile of the peoples’ human rights at the community and national levels. At national level, advances have come through in a mixture of policy developments, court decisions, and increased number of complaints based on customs going through the courts in PNG. The Constitution elevates the status of custom per se and in comparison with common law, and makes it clear that it will continue to develop and form part of the legal system in PNG. In so doing, it recognizes and embraces the dynamic nature of the customary law. 6 Constitution, Section 59, GovPNG (1975). INDIGENOUS CUSTOMARY LAW IN CONTEXT 9 Status of Customary Law Indeed, indigenous cultures have often been perceived as lacking legally binding norms, or at least norms significant enough for colonizing powers to take into account. Sometimes, the reason offered for not acknowledging customary law is that customary law should be inferior to and cannot prevail when in conflict with statutory law. As the latter bears the seal of a formal legislator, it must prevail. However, all cultures, large and small, have legal regimes based on customs (Svensson, 1999). Indigenous peoples are no different in this regard (Ryan, 1995). However, the difference does not justify a lack of respect for indigenous legal systems. Both statutory and customary laws are created by the purposeful activity of human beings. Further, there is no sharp line between customary and statutory law. The capacity of legislatures to enact statutes depends, in the final analysis, on social acceptance of their power to make law. In other words, the legislator derives its power from customary law. Moreover, bodies of law that are primarily customary frequently contain procedures for law-making that amount to, or come close to, legislation. Sometimes, in certain customary law cultures, influential persons or groups have the power to change norms of customary law at identifiable moments of time. 7 As a result, there is no significant distinction between indigenous customary law and state statutory law. There is no reason why one should per se be subordinate to the other (Woodman, 1999). Although we have no intention of discussing the point further in this article, we should say that the rules and customs form an integral part of indigenous peoples’ cultures by being linked to the way of life of each particular people. Custom had the force of law because all laws rest on the tacitus consensus of the people and this must apply to unwritten law as well. Customs are long lasting and are approved by agreement of those who use them. The people are themselves arbiters of customs. To date, customs dominate the legal landscape of PNG; it is the law in the rural areas, although it is not superior to the written national law. Common Law Theory of Custom As custom assumed a predominant position during the middle ages in Europe, the need for a theory of customary law and the establishment of rules for its identification became more pressing. According to Ibbetson (2007), the Digest of Julian and the Code of Constantine, the most influential of Roman law texts, provided the key elements upon which European medieval jurisprudence crafted its theories of customary law. These were: 1. Long standing-ness of its practice; 2. Flowing from the tacit agreement of the people; 3. Unwritten; 4. It may or may not prevail over a contrary lex; 5. It must not be contrary to reason, ratio (Ibbetson, 2007). In Ibbetson’s (2007) view, Bartholus placed greater emphasis on the consent of those subject to the law than on the length of period during which it had been in force, following Bassianus in fixing the period for 7 Neither can customary law effectively be differentiated from statutory law due to the fact that the latter is formalized in writing. It is quite possible to make written records of customary law, and if these written records are given authority, rather than the custom itself, then the customary law has, in effect, been transformed into statutory law. 10 INDIGENOUS CUSTOMARY LAW IN CONTEXT custom to crystallize at 10 years. Proof of the fact of custom was considered as of much importance by Bartholus who felt two witnesses should give evidence in writing (Tobin, 2011). That view notwithstanding, where a custom was so notorious that the judges would have been aware of it, such evidence would not be required (Ibbetson, 2007). Under the common English law, continuity is a key requirement for enforceability of custom as any interruption may be taken as a cessation of the custom. According to Blackstone (1759), an interruption of the possession only for 10 or 20 years, will not destroy the custom. However, if continuity is broken by coercion or other such pressure, this may not serve to void the custom as law (Callies, 2005). Requirements for continuity have been amongst the most controversial for indigenous peoples seeking to secure recognition of land rights following dispossession by colonial powers and settler states. Nature of Indigenous Peoples’ Legal Regime and Customary Law Indigenous peoples’ customary laws and practices are given direct and indirect recognition ranging from formal constitutional recognition to tolerance of customary law practices that on the face of it run counter to national law. For some peoples, such as the uncontacted inhabitants of the highlands of PNG, the West Papuans in Indonesia and the Amazonians8 and other indigenous peoples living in the remote areas outside the reach of national law, custom is the only law they know. Likewise, in post-conflict countries (ICHRP, 2009), failing states (Chanock, 2009), and states with no formal functioning government or judicial system (van Notten, 2005), customary law may prove to be the preferred, if not the only, system of law to which the populace can turn in their search for justice (Ubink & van Rooij, 2011). Sources of Customary Law We hold the view that if law is to be found in the stories of indigenous peoples, then an ability to interpret their symbolism and imagery is crucial for the correct application of the law. The normative quality of the law rests in the principles it enshrines and not in any specific rules. This marks a contrast with positive law, which eschews the notion that law is anything other than fact based. One view then of customary law would be of a body of principles amenable to interpretation according to the contemporaneous moral, ethical and equity-based standards of the relevant society. These principles may be applied and modified by indigenous peoples over time. Principles taken from stories and other sources of customary law may be applied in any specific case without changing the principle, preserving flexibility while maintaining continuity over time. The notion of custom as principle-based is a legal concept easily recognisable by western law. Barsh and Henderson (1997) picked up on this in their study of Canadian treatment of indigenous peoples’ sovereign rights, referring to Professor Dworkin’s essay “The Model of Rules” where he explains that, Western legal systems are characterised by a combination of rules (black letter law) and principles (custom or convention). Principles provide a necessary logical framework for interpolation within the spaces between rules for resolving conflicts and inconsistencies among rules, and for clarifying the meaning of ambiguous rules … they lend a consistency and predictability to adjudication that would otherwise not exist. (Ross, 1991, p. 265) 8 An estimated one hundred uncontacted peoples are believed to exist in the Amazonian region, many in danger of extinction. UNEP/Convention on Biological Diversity/WG8J/3/JNF/1, p. 38. INDIGENOUS CUSTOMARY LAW IN CONTEXT 11 Based on Dworkin, researchers Barsh and Henderson (1980) suggested interesting possibilities for the application of customary legal principles to bring consistency and predictability to implementation of tribal, national and international law (Barsh & Henderson (1980), in order to secure indigenous peoples’ ancestral and human rights (Ross, 1991; Green, 2007). They further say exercise of such a role is dependent, however, on effective recognition of customary laws’ inherent status as a primary source of law, a goal impeded by the traditional tendency to place it on the lowest rung of the legal hierarchy (Green, 2007). In the next three sections, we will address the questions of proof of custom, subordination of customary law under the “repugnancy rule” and the role of courts in its development. We will also consider the impact of codification on customary law. In Search of Customary Law There are two central issues that dominate the issue of recognition of custom. First of these is how to identify customary law from mere habitual customs and the second is the conformity of customary law with the notion of natural justice and moral values of the dominant regime, the so-called “repugnancy rule”. Turning to the former issue, Jean Zorn and Jennifer Corrin Care (2002) outlined two diametrically opposed views. The first requires parties to prove customary law as any other matter of fact by calling evidence, which may, they say, be a costly affair, involving complicated rules of evidence and adversarial processes foreign to indigenous peoples. The opposing view is that custom is a question of law, and therefore can be found by the court without requiring the production of evidence as to its existence. The Privy Council in Angu v Attah set down the relationship between these two forms of proof, where it stated: As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have by frequent proof in the courts become so notorious that the courts will take judicial notice of them.9 Repugnancy Rule Determination of the issue of repugnancy poses a constant dilemma for the judiciary who have to strike a nice balance between what is reasonably tolerable and what is essentially below the minimum standard of civilised values in the contemporary world (Elias, 1962). Elias viewed the application of the repugnancy rule and the public policy rule as reflecting an inherent failure of the British legal system, its incapacity to look both ways in order to provide an equitable balance between custom and colonial law. The scope and focus of the repugnancy rule is discernible in a number of judgements chosen by Leslie (1977) from cases in what was Rhodesia. Sheleff (1999) found much favour in the work of Leslie who drew analogies between the “widely accepted legal principle of public policy” and “repugnancy rule”. From this perspective, a court could depart from a rule of customary law, not because the rule itself is repugnant to natural justice or morality, but because its enforcement in the particular circumstances of the case then before it would have results considered by the court to be repugnant to natural justice or morality. (Leslie, 1977, p. 117) 9 Angu v Attah (1916) (Privy Council) Reports, 1874-1928, p. 43. 12 INDIGENOUS CUSTOMARY LAW IN CONTEXT Following decolonization, the notion of repugnancy was considered incompatible with respect for customary law. Rejection of the common law notion of “repugnancy” does not, however, equate with acceptance of customary law in toto. In place of “repugnancy”, there are now a wide range of measures by which custom may be held inapplicable. In other jurisdictions10, including PNG, at the national level customs’ applicability has been made conditional upon compatibility with constitutional law, and written national law11. Codification of Customs Once a custom is codified or settled by judicial decisions, it is binding on the people. In other words, in cases where custom is alleged, a duty is also imposed upon the Court to endeavour to ascertain the existence and nature and applicability of that custom. That particular piece of custom, once declared and or applied by the Court, becomes law and is no longer a custom. There are few customary practices which have crystallized in judicial decisions of the Supreme Court and the National Court.12 Sinha (2011) warned that codification would amount to stopping growth of customs and customary rights of future generations. In addition, courts may also arrive at different interpretations of the customary rights once they are codified, by following strict rules of construction or functional interpretation. For example, in 1985, a Chief Commissioner of the Land Titles Commission determined a claim under the Land Titles Commission Act13 of native ownership or the right by native custom to the use of land on Fisherman’s Island, also known as Daugo Island, lying a couple of kilometres offshore from Port Moresby.14 The claim was that prior to June 1980 the land on the island was not waste and vacant land but land occupied, cultivated, used and owned by the natives of Tatana Village. The Tatana Villagers claimed damages against the government for wrongful occupation of certain parts of the island for 100 years for various purposes, including a coconut plantation, a quarantine station, a license to settle a fishing Hula population already living on the island, and an airstrip. The claim was made under five headings of common law damages, namely, occupational fees, removal of fixtures, damages for reinstatement, consequential loss and exemplary damages, together with interest under the Judicial Proceedings (Interest on Debts and Damages) Act.15 An important issue was the choice of law because, although the claim was brought under custom, the damages were sought under common law. So, pursuant to Section 5(g) of the CCA16, the National Court held that the claims for compensation were relevantly transactions which justice required should be regulated wholly by the Motuan custom of the Tatana people and not by the common law. However, no evidence of relevant customary law on the wrongful trespass by the government was led before the court nor found in the materials submitted to the court, and his Honour’s own initiative uncovered a lucid and well-informed account of Motuan land customs which unfortunately did not have anything relevant on the question of trespass or wrongful occupation of 10 Constitution of Rwanda 2003, Article 149; Constitution of Solomon Islands 1978, Sch. 3 S. 3(1) and (2), and regulations and human rights, public order and morals, fundamental rights of the person, and natural justice; Constitution of Swaziland 2005, Section 252; Constitution of Namibia 1990 Artcle 66. 11 Constitution, GovPNG (1975). 12 Resena, Gaigo and Oala v the State (1991) PNGLR 174 at 178. 13 Land Titles Commission Act, GovPNG (1963). 14 Resena, Gaigo and Oala v The State (1991) PNGLR 174 at 178. 15 Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52), GovPNG. 16 Customs & Recognition Act, GovPNG (1963), GovPNG. INDIGENOUS CUSTOMARY LAW IN CONTEXT 13 another’s land. Hence, the court considered that it should apply Sch. 2.3 of the Constitution which imposes a duty on the National Judicial System, and especially the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law where there is no rule of law applicable to the matter before it and appropriate to the circumstances of the country, taking into account the several factors enumerated thereunder. Having considered the various heads of claims, the court identified analogies in custom supporting heads of damages analogous to common law. It settled on “compensation” under Motuan custom and under many other customs in PNG to put right a wrong. Applying this analogy, the court determined that no compensation should be awarded for the government coconut plantation and the removal of permanent fixtures but that compensation should be awarded for the quarantine station, the Hula settlement and the airstrip.17 For the plaintiff, any documentation of customary law will need to be approached with care, avoiding the establishment of rules that impose an inflexible stricture on the “living law” of indigenous peoples. It will also need to avoid presenting a target for governmental extinguishment. As pressures to codify customary law increase, indigenous peoples will need to be increasingly judicious about what (if anything) to codify. International Recognition of Customary Law James (2011) stated that the rights of the indigenous peoples to their customary law have been recognized under the international law as having both an internal and external aspect. On the one hand, states are obliged to recognize indigenous peoples’ rights to govern their own affairs in accordance with their own laws, while at the national level, states are obliged to consult with Indigenous peoples regarding the development of laws, policies and programs which affect them (James, 2011). These rights have been clearly set out in “Indigenous and Tribal Peoples Convention 1989” which recognizes indigenous and tribal peoples’ rights to the full measure of human rights and fundamental freedoms without hindrance or discrimination.18 The convention also requires that in applying national laws and regulations to indigenous peoples’ rights to their own customs and institutions.19 Indigenous peoples’ rights to their own customs and institutions are specifically limited under the convention where they are “incompatible” with fundamental rights defined in the national law or internationally recognized human rights. The binding nature of the obligations under the convention means that countries party to it will need to ensure that national laws are developed with due regard to the customs and customary law of relevant indigenous and tribal peoples. Further, the United Nations Declaration on the Rights of Indigenous Peoples 2007 gives specific recognition to indigenous peoples’ rights to self-determination20, including rights of autonomy or self-government in matters of economic, social and cultural development.21 It requires states to give legal recognition and protection to indigenous people’s rights over their traditional lands, territories and resources.22 This is to be done with due respect for their customs, traditions and land tenure systems.23 17 Resena v PNG (1990) PNGLR 22. 18 ILO Convention 169, Article 3. 19 Ibid. Article 4. 20 ILO Convention 169. Article 6. 21 Ibid. Article 7. 22 Ibid. Article 8. 23 Ibid. 14 INDIGENOUS CUSTOMARY LAW IN CONTEXT Recognition of Customary Law Katrina Cuskelly (2011) found that the constitutions of 112 countries have provisions relevant to recognition of customary law. Forms of recognition include the definition of the customary law; establishment of procedures for proof of customary law; recognition of customary law as forming part of the national law; recognition of traditional authorities and traditional practices for their establishment and or election. Recognition of customary law is frequently qualified by provisions limiting its applicability where it conflicts with the constitution24, national law25, and regulations26, human rights27, in particular women’s rights28, public order and morals29, fundamental rights of the person or where repugnant to natural justice. A number of the constitutions limit recognition of customary law to those customs and or usages, which have the “force of law” in their respective territories. The question as to whether a custom has the “force of law” may be variously interpreted depending upon whether it is the community, the courts or the legislature, which has the power to identify when a custom becomes law. Determining just when a custom acquires the “force of law” is of much importance for its wider recognition and application. This in turn is linked to the question of proof of customary law. Customary Law in Context We examine the customary law as it is in the context of the PNG Constitution. We state first the National Goals and Directive Principles (NGDPs)30 which are: Goal 1: Integral Human Development; Goal 2: Equality and Participation; Goal 3: National Sovereignty and Self-reliance; Goal 4: Natural Resources and Environment. PNG Customs are assured mainly under Goal 5 which: [is] to achieve development primarily through the use of PNG forms of social, political and economic organizations [including]: A fundamental re-orientation of attitudes and the institutions of government, commerce, education, and religion towards Papua New Guinean forms of participation, consultation and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the people; and Recognition that the cultural, commercial and ethnic diversity of the people is a positive strength and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively to the tasks of development. Customary law is declared one of “the Laws” in Section 9(f) of the PNG Constitution.31 The Constitution and other laws acknowledge customs but as part of the underlying law of PNG. There are two Acts of Parliament which provide for the enforcement and application of customs or customary law, namely the Underlying Law Act of 2000 (ULA), and the Customs Recognition Act of 1963 (CRA). 24 Constitution of Malawi 1994, Section 200; Constitution of Uganda 1995, Art. 2(2); Constitution of Bolivia 2009. 25 Constitution of Namibia 1990, Art. 66; Constitution of Solomon Islands 1978, Schedule 3 Section 3(1) & (2); Constitution of Columbia 1991, Article 246. 26 Constitution of Rwanda 2003, Article 201. 27 Ibid. 28 Constitution of Ethiopia 1994, Article 35 (4) which provides that Customs and practices that oppress or cause harm to women are prohibited; Constitution of Malawi 1994, Section 24(2) which provides that legislation shall be passed to eliminate customs and practices against women. 29 Ibid. 30 Constitution, National Goals and Directive Principles (NGDPs), GovPNG (1975). 31 Constitution, GovPNG (1975). INDIGENOUS CUSTOMARY LAW IN CONTEXT 15 The laws, including the Constitution, the ULA and the Interpretation Act, but unexpectedly not the CRA, define “custom” in the same way. In Schedule 1.2 of the Constitution, the term custom is defined to mean: The customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial. The Constitution, Schedule 2—Adoption, etc., of certain laws, makes it clear in Sch. 2.1 (Recognition, etc., of custom), that custom is adopted, and shall be applied and enforced32, as part of the underlying law.33 This constitutional dictate ensures that PNG develops its local jurisprudence, and that it is being developed. The wordings of Sch. 2.1 and 2.2(1) are sufficiently important to be set out in detail: Sch. 2.1 Recognition, etc., of custom. 1. Subject to subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law. 2. Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or statute, or repugnant to the general principles of humanity. 3. An Act of Parliament may— (a) Provide for the proof and pleading of custom for any purpose; and (b) Regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and (c) Provide for the resolution of conflicts of custom. Sch. 2.2 Adoption of a common law. 1. Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that— (a) they are inconsistent with a Constitutional Law or a statute; or (b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or … Sch. 2.3 (1) states that where there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, the courts (and in particular the Supreme Court and the National Court) have a duty to formulate an appropriate rule as part of the underlying law. In doing so, the court is to have regard to the NGDPs and Basic Social Obligations set out in the Preamble to the Constitution, the Basic Rights in the Constitution, analogies to be drawn from relevant statutes and custom, legislation and case law from countries with similar legal systems to that of PNG, relevant decisions of Papua New Guinean courts at any time, and “the circumstances of the country from time to time”. Sch. 2.4, the courts, and especially the Supreme Court and the National Court, have a duty— to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act. An Act of Parliament was passed as contemplated in Schedule 2.1(3), the Underlying Law Act, which co-exists with the Customs Recognition Act subject to any Constitutional Law, as an Act of Parliament by virtue 32 Constitution, section 9(h), GovPNG (1975). 33 Underlying Law Act, GovPNG (2000). 16 INDIGENOUS CUSTOMARY LAW IN CONTEXT of Schedule 2.6 of the Constitution. The terms under Sections 3(1), 4, and 5 of this latter Act set out: 3. Recognition of custom. 1. Subject to this Act, custom shall be recognised and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context— (a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or … 4. Criminal cases. Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of— (a) ascertaining the existence or otherwise of a state of mind of a person; or … 5. Civil cases. Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to— (a) the ownership by custom of or of rights in, over or in connexion with customary land; or (1) anything in or on customary land; or (2) the produce of customary land, including rights of hunting or gathering; or … Finally, Section 7 of CRA allows the Court in a situation of conflict of customs to adopt that system of custom, or make such other order, having regard to the “ordinary rules of the underlying law” (modified as may be necessary), as the justice of the case demands. It follows from the constitutional and statutory provisions above that in relation to a custom which appears to be relevant in a civil or criminal case, there are potentially grounds for refusing to adopt that custom as part of the underlying law. The adoption and enforcement of custom in a particular case is never automatic, but is rather the result of a complicated screening process. There are six principles, three from the wording of Schedule 2.1 of the Constitution itself, and three from Section 3 of the Customs Recognition Act and they are: (1) Inconsistency with the Constitution; (2) Inconsistency with a statute; (3) Repugnancy to the general principles of humanity; (4) Resulting in injustice; (5) Contrary to the public interest; (6) Contrary to the best interests of a child under 16 years of age. It is not necessary or possible in this review to examine each of these (they are often overlapping) grounds (Sakora, 1982). Constitutional Recognition of Customary Law The 1975 Constitution of PNG attempts to clarify the definition of customary law describing it as … The customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.34 34 Constitution, Sch. 1.2, GovPNG (1975). INDIGENOUS CUSTOMARY LAW IN CONTEXT 17 This definition breaks with the common law tradition that to be recognized as binding a custom must be immemorial. For many years, indigenous people struggled for recognition of their own customary laws, non-state laws which they consider binding upon them (Tobin, 2011). It is their only source of law. For Jennifer Corrin Care (2000), the PNG Constitution elevates the status of custom and makes it clear that it will continue to develop and form part of the legal system. And in so doing, it recognizes and embraces the dynamic nature of customary law. PNG Constitution recognizes the continuing applicability of English common law but subordinates it to the customary law.35 In PNG, it is given recognition in the Constitution.36 It has been described as a body of rules, customs, or traditions, considered binding upon them by the people or community to whom they refer (Elias, 1962). The primary rule of deciding all questions that arise in most indigenous communities relating to the specified matters is that custom shall be applied where an applicable rule of custom exists and that enacted laws shall only be applied where no such custom or customary rule prevails. This does not presume that custom is to govern the parties to the exclusion of the ordinary law, but it prescribes that it shall govern them in certain matters in the first instance, except in certain cases where the custom contended for is so general that it may not be presumed to exist. The person who asserts a custom contrary to some precept of his personal law is prima facie bound to prove that custom and the regulation of this burden depends on a rule of procedure or evidence only in order to ascertain whether the special custom does or does not exist (Hamnett, 1975). The rule of decision remains the same, and its operation is merely suspended until the ascertainment of a fact, e.g., the existence of a custom (Hamnett, 1975). If a custom is proved, it must be applied to the exclusion of the personal law; it is the second limb of the rule which must then receive effect. And for the custom to be valid, it must not be contrary to justice, equity and good governance. For a custom to be declared invalid, it must be against equity, justice, and good governance or immoral or opposed to public policy. The significance of custom as the basis of customary law lies in the fact that the traditions established through social practice and usage become the essence and driving force of the customary law. The need to reform customary law is recognized in PNG.37 Customary law stems from the indigenous customs of various communities and its rules and norms are habitual practices of the general local community (Aleck & Rannels, 2011). It is obeyed by the people in their communities who are subject to it. It is distinctly different from the other sources of law. Recent efforts in PNG are for a consistent usage of similar custom throughout PNG communities, rejecting those which are against humanity (Jessep, 1998), keeping ones which are habitually obeyed throughout the communities and then getting the superior courts to declare and apply them so that they become judicially developed rules of what PNG calls “underlying law”.38 Role of Customary Law Custom plays a particular role in the context of PNG and is in fact recognized under Section 9 of the Constitution. However, its adoption, application and enforcement are subject to certain exceptions. Schedule 2.1 35 Constitution, Sch. 2.2(c), GovPNG (1975). 36 Constitution, Section 9(f), GovPNG (1975). 37 Madaha Resena and Others v The State (1991). PNGLR 174. 38 State v Kule (1999) PNGLR 404; Re-Wagi Non (19991). PNGLR 84; Re-Kaka Ruk (1999). PNGLR 105. 18 INDIGENOUS CUSTOMARY LAW IN CONTEXT of the Constitution provides for the recognition of custom through its adoption, and shall be applied and enforced, as part of the underlying law. Defining and characterizing customs or customary law would itself be the subject of an extended study. The article does not attempt to definitively define customary law’s boundaries but merely offers some general comments on its character which may be helpful. Few writers have said there had been no shortage of complaints about the lack of progress in developing an “indigenous jurisprudence” (the expression used in Section 21(1) of the Constitution), that is, the failure of custom to achieve its rightful place as a primary source of the underlying law (Sakora, 1982). Others believe this to be the courts’ responsibility and focus criticisms on the apparent ignorance and laziness or antipathy of the courts towards custom, and also failure of the Parliament in not acting soon enough to pass a law contemplated in Schedule 2.1(3) of the Constitution. This lack was remedied by passing the ULA. Others, in their analyses of the role of custom, thought the failure lay in technical problems of proving the existence of custom, and the lack of any consistent judicial methodology in dealing with issues of custom. This article has no intention of dealing with the criticisms; however, the points made on few of the issues raised may well be relevant and valid to this research. There are quite a number of decided court cases which have been through the National Court and Supreme Court (Jessep, 1998). However, analysis of some of the cases reveals a significant level of confusion and ambiguity that raises concerns for the operation of the statutory scheme. For example, the following questions (Jessep, 1998) are raised frequently: 1. What does it mean to say that custom is adopted as part of the underlying law (in Schedule 2.1(2)) of the Constitution)? 2. What tests must be satisfied before custom can be considered for adoption? Can custom be relevant in a case except as part of the underlying law? 3. What is the relationship between custom and common law as competing sources of the underlying law? 4. How are issues of inconsistency to be identified and resolved (for instance, between custom and statute, or custom and the common law)? 5. What are the implications and subsequent precedent value of a decision to adopt custom (or, conversely, common law) in a particular case? These are issues which cause difficulties in interpretation of Schedule 2 of the Constitution.39 Is there something wrong with the terms of the statutory scheme in Schedule 2 of the Constitution? Section 9 of the Constitution provides for the list of laws of PNG which consist of the Constitution and Organic Laws, Acts of Parliament, Emergency Regulations, Provincial laws, laws made or adopted by or under the Constitution or any of the above laws, and the underlying law and none other.40 The Customs Recognition Act 1963 sets out the application of custom. It provides that custom shall be recognized and enforced by, and may be pleaded in, all courts except where its recognition would result in injustice or would not be in the public interest or in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not be in the best interest of the child. 39 Some of the questions have been addressed in the Underlying Law Act 200, e.g., Section 17. 40 Constitution, GovPNG (1975). INDIGENOUS CUSTOMARY LAW IN CONTEXT 19 The customs remain an important part of the peoples’ lives41 and to maintain their livelihood people work as a team and respect one another. Three statements by village elders about what goes on in the local setting underscore these principles.42 Example 1: A group of people of Ninigo Islands of Western Manus (PNG) have lived for many years on the islands and strongly believe in what they do to survive on the atoll islands. Up to 100 populate or inhabited the islands, their custom is alive, and their survival depends on respecting each other’s views and working together.43 They hang on to their traditional customary norms and beliefs, practice them, and the village elders are the custodians of the traditional culture. Among the island people, a certain unfamiliar custom comes into play when a married man leaves for a fishing expedition and does not return within a reasonable time (three to four days). His wife can then “sleep” with another male member of her husband’s family, maybe with the husband’s brother, who by custom and its rules is allowed to do this. In case the husband does not return from a fishing trip, his brother has the right to do so as he would also assume the full responsibility to take care of the members of his brother’s family as well as his own.44 Whilst the custom is morally wrong and not right in modern law, the people are used to it because the situation they endure daily on the small atolls may warrant their custom. In the words of the village (traditional) leaders, Our customs consist of many things including practices and beliefs, that we recognized and share collectively on the Islands. We abide by the rules of our customs. It’s different with the written law. The people or local community are the custodian of the customs.45 Given the statement uttered by the village leader, customary law is a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by indigenous peoples and local communities. Customary law forms an intrinsic part of their social and economic systems and way of life. What characterizes customary law is precisely that it consists of a group of customs that are recognized and shared collectively by a community, people, tribe, ethnic or religious group. This contrasts with written law emanating from a constituted political authority, the application of which is in the hands of that authority, generally the State. However, in the current societal structure elsewhere that custom is not allowed unless there is a model of justice operating that obliges that custom to exist. The complexity of the customary practices (people on Ninigo Islands) means that neither the risks of promiscuity nor alternatives to it are obvious to the simple people. A high degree of illiteracy or mistrust of the communities’ authorities may mean that consent given orally is meaningless or even dangerous. In fact, decisions are usually based on considerations of customs, family ties, languages, land, and marriages, security, safety and what family or clan would do if the person dies when the fishing expedition fails.46 Among the family and the extended families, customs come into play and the clan members take the responsibility directly or indirectly of making that decision. The islanders strictly adhere to their customs as it is 41 Re Kepo Raramu. PNGLR 486. 42 Re Willingal (1997) N 1506. 43 Personal Communication With Village Elders and Ward Council, Ninigo Islands. Lorengau Manus. PNG (10 February 2018). 44 See Re Kepo Raramu. PNGLR 486. 45 Personal Communication With Village Elders and Ward Council, Ninigo Islands. Lorengau Manus. PNG (10 February 2018). 46 Ibid. 20 INDIGENOUS CUSTOMARY LAW IN CONTEXT their way of life.47 The people promote their traditional customary beliefs, opinions and adhere to them; they do more so in the village settings than in urban settings. We say that customary laws are central to the very identity of indigenous peoples and local communities, defining rights, obligations and responsibilities of members relating to important aspects of their lives, cultures and world views. Customary law can relate to use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage and knowledge systems, and many other matters. Example 2: There is concern about rights being breached by custom, there is also the sad fact that many of the traditional cultures have either eroded or do not exist anymore. For example; barter trade between different tribes has stopped. Large ocean canoes used for trading are not built anymore. The loss is enormous, canoe-making skills and exchange of traditional monetary items like clay pots and wooden dishes are gone, together with the loss of important relationships along traditional trade routes. What makes knowledge “traditional” may be the very fact that it is developed, maintained and disseminated in a customary, intergenerational context, and often that context will be defined and shaped by customary law (Tobin, 2013). So even the basic question in discussing protection of traditional knowledge—what does this term refer to?—may require an understanding of customary law. This is one reason why indigenous peoples and local communities have consistently argued that measures for the protection of traditional knowledge against misuse and misappropriation should be based upon and support enforcement of their customary laws. Customary law is thus one potential element of a holistic approach that may include customary and indigenous laws and protocols as part of a wider set of tools for protecting traditional knowledge (Tobin, 2013). Example 3: A particular area of concern is the changing value of “men” in PNG. Traditionally, men were valued on the basis of being initiated, the ability to build a house, and look after a family, make a garden, go hunting and fishing, have ability to perform customary dances, rituals and knowledge of land boundaries. In the modern setting, the value of a man is dependent on whether or not he has a university degree, the type of car he drives, how many houses he has, what school his children attend and how much money he has in the bank. This has totally disempowered men, particularly young men who live in towns and has resulted in, amongst other things, abuse of drugs, alcoholism, and domestic violence. Placing men back into the village would give them the opportunity to know that there is a different empowering system that recognizes their value as men and they need not be destructive both to themselves and their community to get that recognition. Accommodating “modern” aspirations, such as the above within the village context is a challenge in itself. Conclusion We set out in this article to define the delimitation of customary law, to perceive it within its proper context. We have endeavoured to achieve this by canvassing it as a system of first law for indigenous peoples throughout the world, in terms of its nature and characteristics, historic treatment of customs as its source and theoretical framing of customs in common law, its recognition and position in international law and within state constitutions and legal systems, and the advantages and disadvantages of codifying customs. We observe that, 47 See Re Kepo Raramu. PNGLR 486. INDIGENOUS CUSTOMARY LAW IN CONTEXT 21 although custom has long been recognized as a source of law by legal philosophers since the time of Plato, its formal recognition as such at both international and domestic laws is quite recent. Customary law emerges from what indigenous peoples believe they ought to do, rather than from what jurists consider they should do or believe, and what they ought to do, and do, is progressively transformed into a norm. It becomes their source of law, in fact their only law, governing their social rights and obligations, and rights to their ancestral lands, natural resources, languages, sacred sites and cultural artefacts. Although the diversity of indigenous peoples’ legal regimes militates against any attempt at harmonization or strict definition, there is a growing recognition that customary legal systems are dynamic, largely oral in nature and tend to promote community harmony rather than retribution. Nevertheless, the rights which these diverse legal regimes govern have crystallized, according to one writer, in customary international law as self-determination, land rights and cultural heritage. Maintaining customary laws can be crucial for the continuing vitality of the intellectual, cultural and spiritual life and heritage of indigenous peoples and local communities, who have also called for various forms of respect for and recognition of customary laws beyond the scope of their own communities, for example, in claims over land and natural resources. This can raise complex issues in national Constitutional Law. There are varying degrees of recognition of indigenous populations’ customary law regimes throughout Africa, Asia, Latin America, Pacific Islands and elsewhere. This recognition has not only solidified the rights of first nations but also necessitated re-casting of their relationships with the states and reconciling their often-unwritten customary laws with the written state laws. This is indeed true of PNG. In 1975, the autochthonous Constitution of the country declared the adoption, application and enforcement of the customs of the indigenes, as well as the rules and principles of English common law applying immediately before Independence on 16 September, 1975, as part of the “underlying law” which is enumerated as one of the laws of the country. The term, first used in the Constitution, refers to the corpus of rules and principles which the courts, especially the Supreme Court and the National Court, have to elicit from custom declare and apply where there is no rule of law applicable to the matter then before the courts. However, there are two significant restrictions—the custom must be consistent with the Constitution and other written law of the state and not be repugnant to the general principles of humanity. It was for reason of inconsistency with the Constitution, to the extent that a woman’s right to freedom (s. 32) and equality of citizens (s. 55) were infringed, that a long-practiced custom of an atoll island people in Manus Province was declared unconstitutional. There is no longer any question that customary laws of many indigenous peoples throughout the world, including PNG, had influenced state legal systems and in turn have received in recent years’ recognition both at international law (inclusive of customary international law) and domestic law. The recognition is not “en masse”. State constitutions and statutes have prescribed constitutional and legal rules for selection and application of customs, as is the case of PNG, and the Supreme Court and the National Court of the country conscientiously perform this constitutional legal responsibility. References Aleck, J., & Rannels, J. (2011). Custom at the crossroads. New Delhi: Sterling Publishers Private Limited. Anaya, J. (2004). Indigenous peoples in international law (2nd ed.). New York: Oxford University Press. Barsh, R. L., & Henderson, J. Y. (1980). The road: Indian tribes and political liberty. Berkley: University of California Press. 22 INDIGENOUS CUSTOMARY LAW IN CONTEXT Barsh, R. L., & Henderson, J. Y. (1997). The Supreme Court’s Van der Peet trilogy: Native imperialism and ropes of sand. McGill Law Journal, 42(1), 3-19. Bederman, D. J. (2010). Custom as a source of law. Cambridge: Cambridge University Press. Bennett, T. W. (1991). A sourcebook of African customary law for southern Africa. Johannesburg: Juta & Co. Ltd. Blackstone, W. (1759). Commentaries on the laws of England (Vol. 4). Oxford: Clarendon Press. Callies, D. (2005). How custom becomes law in England. In Orebech et al. (Eds.), The role of customary law in sustainable development. Cambridge: Cambridge University Press. Chanock, M. (2009). Customary law, sustainable development and the failing state. In P. Orebech et al. (Eds.), The role of customary law in sustainable development (pp. 338-383). Cambridge: Cambridge University Press. Chirayath, L. (2011). Customary law and policy reform: Engaging with the plurality of justice systems. In B. Tobin (Ed.), Why customary law matters: The role of customary law in the protection of indigenous peoples’ human rights. National University of Ireland. Chirayath, L., Sage, C., & Woolcock, M. (2005). Customary law and policy reform: Engaging with the plurality of justice systems. Background Paper for the World Development Report 2006. Retrieved from https://openknowledge.worldbank.org/handle/10986/9075 Corrin Care, J. (2000). The status of customary law in Fiji Islands after the Constitutional Amendment Act 1997. Journal of South Pacific Law, 4. Retrieved from http://www.paclii.org/journals/fJSPL/vol04/1.shtml Cuskelly, K. (2011). Customs and constitutions: State recognition of customary law around the world. Retrieved from https://portals.iucn.org/library/efiles/documents/2011-101.pdf Elias, T. O. (1962). British colonial law: A comparative study of the interaction between English and local laws in British dependencies. London: Stevens & Sons. Glen, H. P. (2000). Traditions of the world. Oxford: Oxford University Press. Green, M. S. (2007). Dworkin v. the philosophers: A review essay on justice in robes. Retrieved from https://scholarship.law.wm.edu/facpubs/22 Hamnett, I. (1975). Chieftainship and legitimacy. London: Routledge & Kegan Paul. Ibbetson, D. (2007). Custom in medieval law. In A. Perreau-Saussine and J. B. Murphy (Eds.), The nature of customary law: Legal, historical and philosophical perspectives (pp. 151-174). Cambridge: Cambridge University Press. International Council on Human Rights Policy (ICHRP). (2009). When legal worlds overlap: Human rights, state and non-state law. Retrieved from https://reliefweb.int/sites/reliefweb.int/files/resources/69BEA7340C43DCCEC125766A0045F49A-ICHRP_Nov09.pdf James, R. W. (2011). Equity and the law of trusts in Papua New Guinea. Port Moresby, Papua New Guinea: Melanesian Law Publishers. Jessep, O. (1981). The elusive role of custom in the underlying law of Papua New Guinea. Retrieved from http://www.paclii.org/journals/MLJ/1998/1.rtf Leslie, R. (1977). The repugnancy rule in African law and the public policy rule in conflict of laws. Acta Juridica, II, 117-127. Minei, A. P., Kaipu, S. O., & Minei, J. M. (2020). Culture within informed consent: Papua New Guinea perspective. Journal of Health Science, 8, 33-51. doi:10.17265/2328-7136/2020.02.001 Moore, S. F. (1978). Law as process: An anthropological approach: Classics in African Anthropology. London: Lit Verlag. Morgan, S. (2010). Customary law and human rights dialogue: Customary law, traditional knowledge and human rights. National University of Ireland Galway. Perry, R. (2011). Balancing rights or building rights? Reconciling the right to use customary systems of law with competing human rights in pursuit of indigenous sovereignty. Harvard Human Rights Journal, 24, 71-113. Pimentel, D. (2010a). Can indigenous justice survive? Legal pluralism and the rule of law. Harvard International Review, 32(2), 32-39. Pimentel, D. (2010b). Rule of law reform without cultural imperialism? Reinforcing customary justice through collateral review in southern Sudan. Hague Journal on the Rule of Law, 2, 1-28. Rattigan, W. H. (2007). Customary law, as at present ascertained. India: Universal Law Publishing Co. Pty Ltd. Rosenne, S. (2017). Practice and methods of international law. London, New York: Oceana Publications, Inc. (Published online by Cambridge University Press) Ross, S. (1991). Law, integrity, and interpretation: Ronald Dworkin’s law empire. Metaphilosophy, 22(3), 265-279. Ryan, J. (1995). Doing things, the right way: Dene traditional justice in Lac La Matre, NWT. Calgary: University of Galgary Press. INDIGENOUS CUSTOMARY LAW IN CONTEXT 23 Sakora, B. (1982). Judicial law-making under the Papua New Guinea Constitution. In P. Sack (Ed.), Pacific constitutions (pp. 257-270). Canberra: Australian National University Press. Sheleff, L. S. (1999). The future of tradition: Customary law, common law and legal pluralism. London and New York: Routledge. Simojoki, M. V. (2011). Unlikely allies: Working with traditional leaders to reform customary law in Somalia. Rome: International Development Law Organization. Sinha, N. (2011). Is codification of customary law desirable. In B. Tobin (Ed.), Why customary law matters: The role of customary law in the protection of indigenous peoples’ human rights. National University of Ireland. Stavenhagen, R. (2002). Indigenous peoples and the state in Latin America: An ongoing debate. In R. Sieder (Ed.), Multiculturalism in Latin America (pp. 24-44). London: Palgrave Macmillan UK. Svensson, T. G. (1999). On customary law and the Saami rights process in Norway. In T. G. Svensson (Ed.), On customary law and Saami rights process in Norway. Tromso, Norway: Centre for Sáami Studies Publication. Tobin, B. (2011). Why customary law matters: The role of customary law in the protection of indigenous peoples’ human rights (Ph.D. thesis, National University of Ireland, 2011). Tobin, B. (2013). The role of customary law in access and benefit—Sharing and traditional knowledge governance: Perspectives from Andean and Pacific Island countries—Jointly produced by the World Intellectual Property Organization (WIPO) and the United Nations University (UNU). Retrieved from https://www.wipo.int/export/sites/www/tk/en/resources/pdf/customary_law_abs_tk.pdf Ubink, J., & van Rooij, B. (2011). Towards customary legal empowerment: An introduction. In J. Ubink (Ed.), Customary justice: Perspectives on legal empowerment. Rome: International Development Law Organization (IDLO). Van Notten, M. (2005). The law of the Somalis: A stable foundation for economic development in the Horn of Africa. S. H. MacCullum, (Ed.). Asmara, Eritrea: The Red Sea Press. Von Benda-Beckmann, F., & von Benda-Beckmann, K. (Eds.). (2006). How communal is communal and whose communal is it? In Changing properties of property. New York: Berghahan Books. Woodman, G. R. (1999). Customary law and customary legal rights: A comparative consideration of their nature and of the relationships between laws. In T. G. Svensson (Ed.), On customary law and the Saami rights process in Norway 18-20. Tromso, Norway: Centre for Sáami Studies Publication. Woodman, G. R. (2004). Folk law. Arizona Journal of International & Comparative Law, 21(1), 64. World Bank. (2006). World development report: Equity and development. New York: World Bank and Oxford University Press. Zorn, J., & Corrin Care, J. (2002). Barava Tru—Judicial approaches to the pleading and proof of custom in the South Pacific. International and Comparative Law Quarterly, 51(3), 611-639. View publication stats

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