Papua New Guinea, in the southwestern Pacific Ocean, is the world’s third largest island country; it includes the eastern half of the island of New Guinea, where over 85% of the population resides, and 600 smaller islands. Papua New Guinea is the most linguistically diverse country in the world, with 840 languages spoken. English remains the language used by governmental institutions. The country’s constitution was enacted in 1975 when the nation declared independence from Australia. Remnants of Papua New Guinea’s British and Australian colonial heritage include its Westminster system of government and common law legal system. Customary law is practiced in many regions of the country and is recognized as an integral part of the legal system.
The Underlying Law
There are three principal sources of law in Papua New Guinea: the constitution, legislation, and the “underlying law” – uncodified customary and colonial-era common law. If there is no applicable legislation or constitutional provision to guide a particular case, the Underlying Law Act of 2000 requires courts to invoke customary law norms before turning to common law doctrine. This legislation was enacted to expand the use of indigenous customary law.
There are four tiers of courts in the country’s formal legal system: the Supreme Court, the National Court, district courts, and village courts.
Supreme CourtThe Supreme Court of Papua New Guinea is the final court of appeal with original jurisdiction over constitutional matters. The Court is made up of the Chief Justice, the Deputy Chief Justice, and all judges of the National Court. Judges typically spend three weeks on the National Court and one week on the Supreme Court. Cases are decided by a rotating panel of three or five judges.
National Court of JusticeThe National Court has first-instance jurisdiction over the more serious civil and criminal cases and hears appeals from the district courts. It includes the Chief Justice, Deputy Chief Justice, and forty-two judges.
District CourtDistrict courts hear less serious civil and criminal cases. There are district courts in all provincial centers and most district centers; Papua New Guinea has fifty-seven district courts, with eighty-eight magistrates.
Village CourtsVillage courts primarily hear cases involving customary law disputes between villagers but also have jurisdiction over small civil claims and minor criminal offenses. The Minister for Justice appoints at least three magistrates from the local village to each village court.
Papua New Guinea’s judicial system also includes military courts, taxation courts, Mining warden courts, traffic courts, committal courts, and grade five courts that hear serious criminal cases.
The Judicial and Legal Services Commission oversees the judicial appointment process. It is an independent commission chaired by the Minister for Justice; its members include the Chief Justice, Deputy Chief Justice, Chief Ombudsman, and a representative of parliament. To be eligible for appointment, citizens of Papua New Guinea must be graduates of a qualifying law school with at least four years of legal experience and two years of other postgraduate experience. Noncitizens interested in joining the judiciary must have at least five years of experience as a judge or a lawyer in a country with a similar legal system.
The constitution allows the appointment of “acting judges” to fill a vacancy, substitute for a judge’s absence, or serve as needed if there is a higher-than-normal workload. An acting judge is subject to the same appointment requirements as permanent judges. They may be appointed for a maximum twelve-month term that is renewable only once.
District CourtMagistrates are appointed by the Judicial and Legal Services Commission. The commission appoints the Chief Magistrate, two Deputy Chief Magistrates, and Principal Magistrates. Each province has a Senior Magistrate and District Court Magistrates. District court magistrates must have a Bachelor of Law degree and at least four years of experience as a barrister or solicitor.
Village CourtThe Supreme Court of Papua New Guinea is the final court of appeal with original jurisdiction over constitutional matters. The Court is made up of the Chief Justice, the Deputy Chief Justice, and all judges of the National Court. Judges typically spend three weeks on the National Court and one week on the Supreme Court. Cases are decided by a rotating panel of three or five judges.
Customary Law in Village Courts
The 1973 Village Court Act created a system of village courts to implement customary village law and procedures. Informally, there are two types of village courts: area court and full court. Two village magistrates meet in area court to mediate a dispute. If unsuccessful, a “full court” of three or more magistrates convenes to hear the case.
Village courts serve two-thirds of the Papua New Guinea population and hear minor civil and criminal cases including disputes over property, allegations of battery and insult, public drunkenness, and sorcery. The Sorcery Act of 1971 criminalized sorcery and false accusations of sorcery. The legislation was repealed in 2014, but village courts continue to hear cases involving attacks on suspected sorcerers.
Criminal sanctions in village courts are limited to fines and community service; court judgments can be appealed to the district courts. Although village courts use customary law, their institutionalization represents a significant departure from traditional dispute-resolution mechanisms. The expanded state involvement in customary justice has been controversial. Critics argue that a lack of community involvement has resulted in harsher court decisions with little opportunity to build consensus among community members. Some village court decisions have been criticized for enforcing traditional women’s roles and making divorce difficult to obtain.