The National – Tuesday, December 7, 2010
By JULIA DAIA BORE
CHIEF Justice Sir Salamo Injia told the Constitutional and Law Review Commission (CLRC) conference in Alotau, Milne Bay, last Wednesday that the courts had not played an active part in developing the underlying law of PNG which was required by the constitution when the founding fathers developed it.
He however said to date the court had approached the issue by adopting “case-by-case” approach; and that the task had to date been left to individual judges to deal with case-by-case.
“This approach has produced a body of case law on the underlying law on various subjects that to a large extent is lacking in completeness and coherency, in a way that is not intended by section 20 and schedule 2 of the constitution, he said, adding: “In other words, the courts have not played an active part in developing the underlying law.”
Sir Salamo said this in Alotau at the conference of the Underlying Law Act enacted in 2000.
“This is not to say that the courts have not discharged their duty to develop the underlying law.
“A thorough research is necessary to establish the full extent of judicial development of the procedural and substantive body of the underlying law in this period.”
Sir Salamo added that the underlying law of PNG was the base law; and that where there was a gap in the written law on a particular subject, the underlying law applied.
He said that since the advent of colonisation, PNG had been governed by written laws of various kinds.
The written law makes provision for recognising custom and common law as the sources of the underlying law.
“Courts were entrusted with the responsibility of developing the underlying law. Whilst common law did not attract any conditions for its application, custom attracted stringent conditions for its proof and application in criminal and civil cases for the courts,” he said.
Sir Salamo said while this had been the case, he acknowledged that the higher courts were responsible for the role relating to the underlying law.
The reasons were that there was no adequately researched information on customary information base for immediate reference by any judge who was presiding over such cases.
Sir Salamo therefore suggested: “that in every case which involves determination on custom (at the district and land courts), that judgement should be published. Such information would be extremely useful for other magistrate and judge to have recourse to in deciding cases involving customs.”