Getting down to business: developing the underlying law in Papua New Guinea

Abstract

At Independence, Papua New Guinea's Constitution gave customary laws a prominent place in the country's legal system. However, for many years Papua New Guinea's courts largely ignored customary laws and fashioned the underlying law almost entirely along the lines of common law. In 2000, the Papua New Guinea Parliament enacted the Underlying Law Act 2000, which requires the courts to look first and foremost to customary laws in developing the underlying law. This paper analyses the Act, describing its aims and the methods it employs to ensure that the courts will use customary laws in developing the underlying law. It considers whether Papua New Guinea courts are following the Act's mandates, and, indeed, whether this is possible. The paper considers possible ways forward for Papua New Guinea to create a legal system based firmly on Melanesian values, beliefs and customary laws.