Introduction to Our Laws: Outcomes Edition for Papua New Guinea Gr. 11&12 Legal Studies Student Book

By James Litai

This book introduces the basics of law in Papua New Guinea, and it targets upper secondary legal studies teachers and students. Everyone in this country, including the educated, other than lawyers needs to know and understand our own laws.

The National Education Departments motto is Prosperity through self-reliance; thus, this project is one out of many the department is yet to accomplish.

No recommended text was available at the time when the new course, legal studies, was introduced in 2010 to be taught as an examinable subject.

Newly elevated secondary schools in the country are facing reference material problem. The problem of rare stock of resource material is truly a considerable physical and psychological stress suffered by most teachers in the country.

This book was written exactly in line with Upper Secondary Legal Studies syllabus as a text material to be used across the nation in all secondary schools in which Legal Studies course is offered.

The subject itself is fundamentally interesting. I enjoyed teaching law for the last six years. I gained the insights of basic introductory law while in the process of teaching and writing this book.

Hope you enjoy reading this book, Introduction to Our Laws and gain the insights of law.

• Language: English
• Publisher: Xlibris AU
• Release date: Dec 14, 2015
• ISBN: 9781503509948

James Litai

The author has been a graduate of economics and social science with bachelor’s in education from the Papua New Guinea University of Goroka in 2002. Hails from Sakarip Village in the Wabag District of Enga province. He has been teaching all upper secondary social science courses at Kopen Catholic Secondary School, St. Paul’s–Pausa Lutheran Secondary School, and Sir Tei Abal Secondary School for the last thirteen years in the Enga province. He now resides at Sir Tei Abal Secondary School, survived by his wife, Ronny, and his four children, namely, Archie Litai, Jilla Litai, Leah Litai, and Wallen Litai.

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Copyright © 2015 by James Litai.

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ISBN:      Softcover         978-1-5035-0993-1

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All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

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Rev. date: 09/15/2015

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Legal Studies class of 2015, Sir Tei Abal Secondary School.

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TABLE OF CONTENTS

Preface

Acknowledgement

Prologue

Unit 11.1 What is Law

Unit 11.2. The Legal History of PNG

Unit 11.3 The Laws of Papua New Guinea

Unit 11.4 The Structure of Government

Unit 12.1 The Courts of Papua New Guinea

Unit 12.2 Court Practice and Procedures

Unit 12.3 Protection of The Law

Unit 12.4 Natural Resouces and The Law

Unit 12.5 The Law and You

Unit 12.6 Current Issues and The Law

Glossary of Legal Terms

Reference

PREFACE

It is my pleasure to introduce to teachers, students and any lay person this book; Introduction to Our Law. This is my third book written while teaching at these schools for the last 13 years. I have also written two upper secondary History text materials;

1. "Insights Into Modern World History" exactly in line with upper secondary history syllabus published together with this book.

2. "Modern World History Made Simple with Chronicles and Glossary", study guide for students. Yet to be published.

The National Education Department’s motto is "prosperity through self reliance," thus this project is one out of many the department is yet to accomplish.

Frankly speaking, this is my own initiative. I have been digging through scraps to get this book completed. No recommended text was available at the time when the new course; Legal Studies was introduced in 2010 to be taught as an examinable subject by the National Department of Education.

Newly elevated secondary schools in the country are facing reference material problem. The National Education Department has executed its decision in introducing many new courses such as Legal Studies and others. The problem of rare stock of resource material is truly a considerable physical and psychological stress suffered by almost all the teachers in the country.

However, the subject content is fundamentally interesting to the students and the teachers because it is PNG oriented.

I really loved and enjoyed teaching law for the last six years. I gained the insights of basic introductory law while in the process of reading, writing and teaching.

I have included a lot of recent newspaper articles in line with the context itself. If I am not correct, some one, preferably a lawyer can correct me in the second edition of this book.

I have come across a lot of grammatical errors in the books that I researched. If I happen to create a kind of error in this book, I am solely responsible.

Hope you enjoy reading law, eh!

1.JPG

James Litai

B. Ed, Economics/ History

18th April 2015

ACKNOWLEDGEMENT

I owe too much and am grateful to the following for their advice and donation of research materials. Firstly to the former principal of Kopen Secondary (2010) and District Administrator for Wapenamanda district (2011 & 2012) in Enga province and now First Secretary to the Minister for Foreign Affairs and Immigration, Mr. Henry Kapao for buying few legal studies material for use in the classroom.

To my grade 12 legal studies class of Kopen Secondary 2011, especially to Eric Esoa and Philip Sakian for the donation of very special PNG law reference material for use in the classroom as well.

To my special friends; thank you so much, the Public Prosecutor for the Wabag National Court, Late Mr. Michael Ruari for supplying me the information from PacLII. To you, Peter Nent, the Assistant National Court Registrar at Wabag for your special advice and, not forgetting you, the Public Solicitor for Wabag, the late Mr. M. Mawasi for donating the invaluable material on HAMP Act 2003. Pitz Murphy, the guy from the National Department of Environment and Conservation, Port Moresby, who supplied me the statutes of the natural resources all in one package Thank you brother for your support.

This book is a brainchild of the principal of Wabag Secondary School, Mrs. Kisam Tare, when in 2006 advised me; Such young person like you can write books from then on I started my manuscripts on the History text material. Brother Jose Kurian (Principal) and Brother Jeet Mashi of Kopen Secondary, the Montfort Catholic Brothers have seen the need for this book and allowed provision of funds to purchase reference material.

A very special thankyou to the father of free education, the Action Governor Grand Chief Sir Peter Ipatas for his tireless efforts in the development of human resources in Enga Province. He was the only Governor standing while the rest of the governors in PNG were sleeping. He started his career in 1997, where I am one of the beneficiaries of his free education policy. Without his vibrant and visionary leadership, I wouldn’t have published this book. Free Education was his policy adopted by the National government in 2012 because it was successful at all levels.

My own family needs a very special mention here as well because they always appreciate my work. To my children, Archie, Jiah, Leah and Wallen Litai, they are in elementary and lower primary schoolswhen I completed the writing. Hope they will read this material in the future. To their step mother Ronny Litai, she has been too patient and respectful when I sit in front of my computer to get this material completed.

Special thanks to Rob Mercado of Xlibris publishing for extension of the 50% discount promotions and to Joy Daniels for walking me through the process of publishing.

PROLOGUE

This book; Introduction to Our Laws is a material that uses an interpretative approach to Papua New Guinea’s legal system exactly in line with the newly introduced syllabus for upper secondary grades 11 and 12 under Outcomes Based Education (OBE) curriculum.

The aims of this book is that students, teachers and any lay person:

• Have an appreciation of law and its role in society;

• Have an appreciation of the customary law as part of PNG’s laws and its role in society;

• Be aware of their legal rights and responsibilities;

• Recognize and appreciate the interdependence of a diverse range of legal issues at the local, national and international level;

• Be innovative and rational thinkers in their response to legal issues;

• Be responsible citizens and contribute meaningfully to the community.

Included in this book are four (4) grade 11units:

• Unit 11.1 What is Law?

• Unit 11.2 Legal History of PNG

• Unit 11.3 The Laws of PNG

• Unit 11.4 The Structure of the Government

and six (6) grade 12 units:

• Unit 12.1 The Courts of PNG

• Unit 12.2 The Court Practice and Procedures

• Unit 12.3 Protection of the Law

• Unit 12.4 Natural Resources and the Law

• Unit 12.5 The Law and You

• Unit 12.6 Current Issues and the Law

A total of 10 chapters or units in which upper secondary social science students can study for them to qualify for the National Examinations.

There should be five grade 11units but I decided to combine units 11.3 and 11.4 in the "Laws of PNG" because these two seemed to explain similar legal concept. Therefore, unit 11.5 becomes unit 11.4 in this book.

Unit 12.2 "Court Practice and Procedures" is not a recommended unit in the outcomes based legal studies syllabus. I purposely included this topic in this book because there has been a lot of queries and questions being raised by the students in the classroom about court practice and procedures in the court room. It is also helpful to any lay person who doesn’t know the court practice and procedures.

This book is also recommended to be used by first and second year law students of the University of Papua New Guinea because most of the contents studied are included in plain simple English.

This book also serves as a text material for PNG history. Every change in the government from colonial era beginning 1884 to 1951 (First Legislative Council) to 1964 (First election) to 1973 (Autonomy) to 1975 (Independence) to present. Most important details about PNG’s legal and political trends are all included in this book.

What is Law?

A Law is a rule, or norms of accepted behavior, which regulate human activity in a society established by authority. Laws in Papua New Guinea are made by the government or are the product of custom. In Papua New Guinea, we have informal and formal laws:

• Informal laws are not written; they are laws that have been passed down from one generation to the next for many years. It is the customary law which is recognized by the constitution which forms part of the underlying laws.

• Formal laws are written down for everyone to see and behave accordingly. It is the constitution and other laws subordinate to the constitution such as organic \laws, Act of Parliament, emergency regulations and other statutes of this country.

The functions of Law in society

Laws are created to help control society so that people are not hurt, cheated or mistreated. Laws in our country, provinces, cities and villages guide people’s behaviors and protect us and help our society work peacefully. Laws also protect our natural and national resources in our country and stipulates how they can be utilized.

Laws may seem to be telling us that you cannot do things, but they are really telling us that we must all if our society is to work well. It is important to remember that the laws that citizens are expected to obey are only fair when they apply equally to everybody. This means that a rich man cannot commit a crime and get away with it just because he is rich. Same thing applies to a prominent politician or even the judges and prime ministers of a country. Just as all people are entitled to full protection of our laws, all people must be made to obey the laws.

When the law achieves its purpose, as put Forward by Kekeya (2007) the people at all levels benefit because there will be peace and harmony in society. When people know they will be safe, their lives are much easier because they are not afraid or angry. Other organizations such as government departments, business, investors, donor agencies and Non-Government Organizations (NGO) also benefit as they can then deliver better goods and services without the disruptions of crime.

Society needs rules to function smoothly. These rules state what can be done and what cannot be done. Rules also state what will happen if they are broken. Members of society are appointed to see that rules are obeyed

The functions of law are:

• preventing disputes and crimes;

• solving disputes and crimes;

• maintains peace and good order;

• sets limits and rules within which members of society can behave themselves;

• provides a good environment for societal activities to be conducted;

• guarantees and protects our rights and freedoms;

• protects individual or group rights;

• provides mechanisms for enforcement of breach of rights and freedoms.

Law and Rule - Difference

A law (legal rule) is made by a law making authority. In Papua New Guinea, the National Parliament has the authority to make laws.

Rules such as school rules or club rules are not law because they are not made by Parliament. A legal rule applies to everyone in Papua New Guinea. A school rule only applies to students of that school or members of a particular organization.

The table below lists the main differences between non-legal rules and legal rules.

If a legal rule is broken, courts will decide upon punishment. If a school or club rule is broken, the school or club will take action against the person concerned.

Categories of Law

The following are the five categories of law:

1. Public law;

2. Private law;

3. National and International law;

4. Civil law;

5. Criminal law.

1. Public Law

Public law concerns the relationships both within a government and between governments and individuals. Criminal law is a branch of public law. In civil law countries, separate administrative courts adjudicate claims and disputes between the various branches of government and citizens, and many lawyers specialize in public law. In France, Germany, and Italy, still other courts handle constitutional issues.

Laws concerning taxation and the regulation of business are in the public area, as is criminal law, which involves the exercise of governmental power by way of enforcement and punishment. Historically, according to the (Encyclopedia, Encarta, 2006), criminal law in the United Kingdom included crimes defined by the courts. The public law nature of the area is further emphasized by other constitutional protections such as the presumption of innocence, protection against self-incrimination, and the rule against double jeopardy (whereby a defendant cannot be tried twice for the same crime). Debate has been continuous regarding the legitimacy of government intervention in areas where moral attitudes are in significant conflict, such as in matters of sexual practices, pornography, birth control etc.

2. Private Law

Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves. The part of the law that concerns individual people and their property.

Civil law is a branch of private law but not necessarily in nature, public law sometimes taken into account where need arises. The most important areas of private law are the following:

• Land Law - deals with the buying and selling of land by the government and individuals, registration of land, mortgages etc.

• Commercial Law – deals with business transactions such as hire purchase, insurance and any legal matters connected with commerce or trade.

• Company Law – very important part of the law and deals with the law relating to companies operating in Papua New Guinea and how a company ceases to operate.

• Family Law – deals with legal matters relating to the family such as marriage, divorce, separation, custody of children, adoption of children and maintenance.

• Tort Law – deals with civil wrongs committed by persons to other persons, such as character defamation, nuisance, negligence etc.

An important area of private law concerns the welfare of children; the courts have wide powers to intervene in family life to protect minors.

The area is concerned with rules and principles pertaining to private ownership and use of property, contracts between individuals, family relationships, and redress by way of compensation for harm inflicted on one person by another. Historically, according to (Encyclopedia Encarta, 2006) government involvement was usually minimal. Private law has also operated to provide general guidelines and security in private arrangements and interactions in ways that are complementary to morality and custom but that are not necessarily enforceable in a court of law, such as non-contractual promises and agreements within an association of private individuals.

The relative significance of purely private law has decreased in modern times. Public law dominates in government-controlled societies; democratic societies increasingly have a mix of public and private law. The private sphere includes individuals and a vast array of groups, associations, organizations, and special legal entities such as corporations and limited companies. They compete with one another and with government for control of resources, wealth, power, and the communication of ideas and values.

3. National and International Law

National Law

Law can be divided into national and international law. National law is referred to as state legal system or domestic laws such as the Constitution, Organic laws, Act of Parliament etc. According to (Kimuli 1996) National law is also referred to as state, municipal or domestic law. National law applies within the boundaries or a state, and governs the internal affairs of the state.

International Law

On the other hand, international law is the legal process that concerns relations among nations. It also extends to international organizations.

Belief and experience in some form of international law dates from at least the days of the Roman Empire. Such law differs greatly from national legal systems. No court has the authority or power to give judgments backed by coercive sanctions. Even in its most modern developments, international law is almost wholly based on custom.

A discernible body of rules and principles is observed or at least acknowledged in international relations. The United Nations Organization is one of the international body that articulate and create international law. The General Assembly and other agencies of the UN bring a combination of diplomacy, negotiation, and propaganda to bear on world affairs in ways that produce effective international treaties and affect world opinion. Some examples of international laws are;

• use of the high seas;

• boundary violation law, nations not allowed to extend into someone else’ territory;

• limits on war, e.g., ban on use of poison gas, ban on unrestricted U-boat campaign or the use of nuclear weapons;

• telecommunication;

• diplomatic and Consular Exchange;

• use of air space;

• International Labor Laws, ILO was set to ensure child labor strictly forbidden, for better work hours and wages, workers have the right to unions, full social security provided for all workers (such as unemployment, health and maternity benefits);

• International copy right laws, companies and individuals forbidden to copy some else’ product;

• International immigration law;

• Climate change law;

• Human Rights Law, free from slavery, discrimination, arrest and imprisonment without trial.

The major sources of international law on these matters are multilateral treaties, international custom, and such general principles are recognized by civilized nations.

Certain courts also have indirect impact, including the International Court of Justice located in Hague, Holland and the International War Crimes Tribunal. Domestic courts in various nations at times also engage in the articulation of international law.

Civil and Criminal Law

The laws in Papua New Guinea fall into two major types: Civil Law and Criminal Law. Under each type there are many smaller laws that deal with many things. Courts in Papua New Guinea deal with both civil and criminal law.

4. Civil Law

Civil means to do with people. Civil law deals with disputes between individuals that are not necessarily criminal. The cases that fall under civil law are known as civil cases. Civil law is used to help individuals who suffered some loss because of the actions of the other individuals. The procedure in the civil cases in the National Court is rather more complicated and the hearing is conducted in much the same way as criminal case.

Many civil disputes are settled out of court, which means that the individuals concerned or their lawyers will come to an agreement about compensation without taking their disputes to court to have the judge or magistrate decide.

Some of the civil cases that could be brought before the courts include;

• Character defamation ; (spoiling someone’s reputation)

• Breach of contract; not honoring a contract agreement

• marriage disputes; separation, divorce, child custody, child maintenance etc.

• personal conflicts about land or other property;

• rights to inherit properties or property succession upon death.

Any person must be certain that civil cases are brought to court by private individuals, not by the police. Criminal cases are handled by the police and the state prosecutor.

5. Criminal law

Criminal law is a branch of public law. It deals with crimes or offences committed against Papua New Guinea society, including activities that break existing laws. Under criminal law, the police detect the crimes and bring the people believed to have broken the law (the accused) before the courts to be tried, if the accused is found guilty, the court will punish them in a way that is appropriate for the crime committed. What amounts to a crime is set out in piece of legislation known as the Criminal Code.

In England, crimes were called Breaches of the King’s peace. A crime was anything which upsets society and caused people to be afraid that they might be attacked and their property damaged or stolen. Crime then affected the whole of society and there would be no peace in the King’s land. So crimes were punished by the King. Today too, a criminal court case is brought in the name of the Queen, although she does not actually appear, she is represented by a lawyer.

In Papua New Guinea, a criminal case is brought by the State of Papua New Guinea executed by the State prosecutors. Therefore, crimes committed by people in this country are committed against the independent State of Papua New Guinea. That’s where the lawyers representing the State (public prosecutors) come in to prosecute the offender.

Some of the cases that can be dealt within criminal law include;-

• murder;

• rape;

• theft;

• armed robbery;

• assault (including wife beating);

• forgery;

• break and enter.

When a crime is committed, criminal proceedings will be initiated. Police will do the arrest and a state prosecutor represents the state, will prosecute the accused. The magistrate or judge will give a verdict whether the accused is innocent or guilty of the offence. Criminal proceedings are not intended for the victims of crime to receive compensation from the wrongdoer.

When a civil wrong is alleged to have been committed, the victim of the wrongdoing himself takes the matter to court for a remedy. The police and the state prosecutor do not involve. If the parties are to engage private lawyers, they may do so.

The proceedings taken by the victim of the wrong are known as civil proceedings. If the complainant satisfies the court that the legal wrong has been committed, the court will give judgment for the complainant and order the defendant to pay compensation or damages to the complainant.

The main differences in remedy for both criminal offences and civil wrongs is that; imprisonment for criminal offences, not compensation, whereas compensation is the remedy for civil wrongs, not imprisonment

It should be noted that certain breaches of the law may be both civil and criminal. Bodily assault is an example, or a rape case would be another. This means the victims have two options open to them and these are civil actions or criminal proceedings. If in the case of an assault or a rape, the victims decide on the options. To solve the problem at village or community level is civil and mixing customary laws to deal with it, and the remedy is compensation.

If on the hand, the victims wanted the problem solved in the court of law, then the case is pursued in criminal proceedings. The distinction between a crime and a civil wrong lies in the nature of the proceedings taken.

The table below lists the main differences in remedies for both criminal offences and civil wrongs. The result of breaking the criminal law is different from the results of breaking the civil law.

The judges or magistrates when handing down verdicts and rulings, they look into three main areas of importance for both civil and criminal law and they are:

• substance – kind of law; what law shall suitably be applied to, either be criminal or civil law, or even both;

• procedure – how the court deal with cases; the verdict and the ruling for both criminal offence and civil wrong

• remedies – what the court decides, it is imprisonment, fine or placed on good behavior bond if the accused is guilty, if not guilty, the accused is acquitted. For civil proceedings, the remedies are compensation and those mentioned in the table above. If the court ruling is in favor of the defendant, then no civil remedies to the complainant, instead the court may order the complainant to pay the legal expenses incurred in the civil court proceedings to the defendant.

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Review Questions 11.1.1

1. What is law? Explain!

2. Identify the role and functions of law in our society?

3. Identify the categories of law and explain each briefly?

4. Compare and contrast rule and law?

5. Identify the legislations?

6. Explain why every nation must have a constitution?

7. Explain statute law?

8. Identify and explain the important areas of private law?

9. Identify the three main differences in remedies for both civil and criminal law?

10. Identify and explain the three main areas of importance when judges and magistrates hand down verdicts and rulings?

11. Explain Private law, public law and international law?

12. Compare and contrast civil and criminal law?

13. Identify some examples of international laws?

14. Which international organization articulates much of the international law?

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Review Questions 11.1.2

1. Explain the following legal terms in legal language

a. Crime,

b. Offences,

c. Defendants,

d. Constitution,

e. Family Law,

f. Land Law

g. Commercial Law

h. Company Law

i. Customary law,

j. Nation building

2. In no more nor less than two pages, write an essay on Why we have Laws in our country.

3. Find out about some of the customary laws in your area by research. Write about those laws and present the information to class.

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Document study 11.1.1

Read the article by Todagia Kelola of the Post Courier, September 19th 2011 and answer the following questions.

Former MP Arrested

A former Member of Parliament has been arrested and charged with allegedly misappropriating K6.6million from the controversial K125 million, Sovereign Community Infrastructure Treasury Bill, issued for development purposes in Kopkopo District.

Police Commissioner, Anthony Wagambie had issued a strong warning to three other leaders who were formerly requested to make themselves available in relation to other allegations but have absconded, that their continuous failure to attend the interviews may force police to employ other measures.

The former Madang MP Alois Kingsly was formerly arrested and charged in Kokopo last week for misappropriation. He has been denied bail….

Meanwhile the three leaders Commissioner Wagambie was referring to in his appeal for them to cooperate with police are member for Komo Magarima Francis Potape for allegations of fraud in his District Treasury of Komo. The member for Pomio, Paul Tienstin is wanted for certain allegations in the National Planning Department’s payout of monies. The governor for East Sepik Peter Wararu is wanted for attempted murder and false pretence…

"They have however frustrated the process by not turning up as requested to them as leaders to come in and help police with our investigation

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Document Review Questions 11.1.1

1. Identify the former Member of Parliament arrested by police, why was he arrested?

2. Identify the three other current Members of Parliament who are wanted by the police?

3. What allegations have been labeled against them? Identify and explain respectively!

4. What does it mean in the article; "they have however frustrated the process? Who really has said that?

5. Define the term ‘abscond’ in your own legal language?

6. What is misappropriation and allegation?

7. Analyze all the allegations by these MPs, what offence have they all committed, civil wrong or criminal offence?

8. Explain why this nation should not tolerate such actions by such people?

9. In groups of five, you recommend your own penalties supposed to be imposed on such actions by such people?

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