Law of Papua New Guinea
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 judge-made law .
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The Constitution is " imperial parliament as in the case of the Constitutions of Canada and Australia). It is "entrenched," meaning that its provisions overbear any ordinary statutory enactments which the courts find to be inconsistent with it, in accordance with the constitutional authority of Marbury v. Madison, the case which established the principle of judicial review in the USA, the first modern state to have an entrenched constitution.[citation needed ]
The Constitution contains a select number of human rights:
During the period of parliament, functions as a de facto non-executive president[citation needed]. Criminal proceedings are brought in the name of "The State" rather than "The King" or "R."; the King's effigy does not appear on banknotes or coins; apart from a few institutions having a royal warrant, such as the Royal Papua New Guinea Constabulary and the Royal Papua Yacht Club, the formal link with the monarchy is largely invisible, and there is little general awareness of it.
"Underlying law"The Constitution declares the "underlying law" — that is, the separate English courts up until Papua New Guinea's independence are[citation needed ].
The " common law of England (that law which was "common" to the whole country) had done prior to 1189, deemed to be "time immemorial" in English law. In practice the courts have found great difficulty in applying traditional custom in a modern legal system and the development of the customary law according to indigenous Melanesian conceptions of justice and equity has been less thorough than may have been anticipated in 1975. In 2000 the National Parliament enacted the Underlying Law Act 2000[1] which purports to mandate greater attention by the courts to custom and the development of customary law as an important component of the underlying law. Thus far the statute appears not to have effected such a result.
StatutesStatute law is very largely adopted from overseas jurisdictions. For example, the CourtsThe magistrates courts, which remain the only court remaining the administrative responsibility of the executive branch, district courts in urban centres presided over by stipendiary magistrates, the National Court which is the superior trial court and the Supreme Court which is functionally an appellate division of the National Court: it is not separately constituted, its Chief Justice is also the Chief Justice of the National Court and its bench consists of National Court judges sitting as an ad hoc appellate tribunal. The Supreme Court is the final court of appeal: an appeal lay from the pre-independence Supreme Court to the High Court of Australia (but not directly to the Privy Council); this was abolished at independence. The Supreme Court also has jurisdiction under the Constitution to give advisory opinions, called "references," on the constitutionality of legislation. In addition to its function as a trial court, the National Court also functions as a court of disputed returns hearing "Electoral Petitions" by unsuccessful candidates for Parliament; Leadership Tribunals hearing cases of alleged misconduct in office referred by the Ombudsman Commission consist of one National Court judge and two District Court magistrates .
The Supreme Court has a special responsibility for developing the "underlying law," i.e. the common law of Papua New Guinea, having resort to those rules of local custom in various regions of the country which may be taken to be common to the whole country. The responsibility has been given additional express warrant in the Underlying Law Act, 2000 which purports to mandate greater attention by the courts to custom and the development of customary law as an important component of the underlying law. In practice the courts have found great difficulty in applying the vastly differing custom of the many traditional societies of the country in a modern legal system and the development of the customary law according to indigenous Melanesian conceptions of justice and equity has been less thorough than may have been anticipated in 1975; the Underlying Law Act does not yet appear to have had significant effect. Advocacy follows the conventions of the German law was wholly displaced by Anglo-Australian law in the former German New Guinea after 1914 when Australia seized the Territory and there are no traces of it in modern Papua New Guinea.[citation needed ]
The Chief Justice of Papua New Guinea is The Honourable Sir Gibbs Salika, KBE .
Despite attempts to incorporate customary law, the writ of the 'National Courts' is felt less keenly in the more remote villages. Victims of crime can choose to have their cases heard in the national courts but this means transporting all those involved to the nearest town. Additionally, national courts hand down sentences that do not generally compensate the victim directly. provincial governments, with senior officer requiring gazetting at the national level through the Village Courts and Land Mediation Secretariat. The Village Court Act establishes the court's jurisdiction, but includes general jurisdiction over any events that would disturb order in the community. In practice, the Village Court's accessibility, especially in remote areas, creates tremendous pressures for actors to exceed their jurisdiction in order to provide some justice to isolated communities that would otherwise be isolated from assistance.
In remote restitution when they receive the fine, reducing the risk of subsequent fighting. Having paid the fine, the transgressor's family usually make very sure that he behaves and may well make him slowly work to pay them back. The Committee Man is paid a fee for his time, generally by the person bringing the case .
In a remote environment with no police to back up and enforce his decision, the Committee Man needs considerable wisdom and diplomacy to make his verdict stick. Good Committee Men are impressive individuals and valuable sources of information about their local communities. The "Rooney Affair": An early crisis in relations between the executive and judiciaryThe independence of the judiciary has been a particular problem in developing countries, though it was confirmed early in Papua New Guinea. Papua New Guinea's Constitution purports to adopt the principle of the separation of powers, enunciated in US jurisprudence in an environment where the three branches of government are indeed separate, the executive not being responsible to the legislature. In PNG as in Australia, the principle is in fact somewhat artificially defined simply to mean that the judiciary is independent from executive interference, as established by the English Bill of Rights, 1689; however, the principle does not extend, as was established in Australia during the early years of the Australian federation, to preventing the courts from rendering advisory opinions to the executive; nor are there any implications with respect to the quasi-judicial function of administrative tribunals, also an issue at one time in Australia (see Separation of powers in Australia). The principle was quickly tested in Papua New Guinea. In 1979, four years after Independence, the then-Minister of Justice, Mrs Chief Justice promptly resigned, a fifth having previously resigned over a related matter.
The vacancies were, after a period of some uncertainty, filled by the first national justices, the new Chief Justice Buri Kidu, Mr Justice Mari Kapi (who eventually succeeded Kidu CJ), and Acting Justice Bernard Narokobi, together with expatriate justices who had had long experience in Papua New Guinea as trial lawyers or magistrates. Three considerable ironies emerged in the long term from the Rooney Affair: (1) The vigorous criticism of the Bench by a member of the right of freedom of expression .
(2) Notwithstanding the immediate departure of the old guard of colonial-era expatriate justices and their replacement by national justices, the Supreme Court did not then undertake any radical new departures by way of indigenising Papua New Guinea jurisprudence and indeed has been notably cautious in undertaking judicial law reform by way of implementing social policy. And (3) Since the Rooney Affair members of the Executive have been notably timorous in articulating criticism of the Bench, notwithstanding extensive overseas freedoms to those contained in the Constitution of Papua New Guinea.
On the other hand, it must be said that legal commentators in the neighbouring common law countries of Singapore and Malaysia are — to the extent that they are aware of events in Papua New Guinea — somewhat admiring of the extent to which Papua New Guinea's judiciary has maintained its independence as this is unusual in their political environments. In 2006 the independence of the judiciary was briefly challenged when Sir Chief Justice of Papua New Guinea, who was in the process of inaugurating a post-judicial political career, launched a series of articles in the Malaysian-owned newspaper The National in which he politically challenged the deliberations of the court over which he had formerly presided with respect to a capital case which was then sub judice. The newspaper was smartly reminded by the court that such challenge was likely to result in severe sanctions , and Sir Arnold withdrew.
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