Melissa
Demian (University of Kent)
The double life of Papua New Guinea's repugnancy clause:
separating the criminal from the customary
The aim of constitutional repugnancy clauses, especially in relatively new or postcolonial states, is generally to establish a hierarchy of laws or institutions. Used in this way they are a straightforwardly technical instrument: by declaring that one level or category of law is repugnant to another, the clause helps jurists know which kind of law is appropriate to apply in which circumstances. But in the legally pluralistic environment of Papua New Guinea, the repugnancy clause in the Constitution serves an additional purpose. In Schedule 2, Section 18 of the Constitution, ‘custom’ is adopted as a component of the ‘underlying law’, that is, the body of law that is anticipated eventually to replace the common law to which Papua New Guinea is an heir. But the Constitution goes on to state that this provision ‘does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity’.
Since the adoption of the Constitution in 1975, this particular wording of the repugnancy clause has been embraced by judges throughout the country as the means by which to separate out those items of ‘custom’ that may continue to be practiced, from those that are unacceptable to judges’ conception of the modern state that Papua New Guinea aspires to be. This happens almost exclusively in criminal law proceedings. Whether particular acts pleaded as customary are seen as illiberal, un-Christian, or simply backwards, they are ejected from the domain of the modern by means of the repugnancy clause. In so doing, criminal courts in Papua New Guinea are actively engaged in a project of purging the future life of the country of practices that are deemed to have no place in that future. The repugnancy clause has become one of the most powerful tools at their disposal to effect this separation, and in so doing to create a future custom that will be sufficiently modern to become the basis of law.
