Legal Pluralism in the Criminal Law: Overseas Experience

404. The United States. Indigenous Indian law and customs have been recognised in the United States largely through the recognition of tribal sovereignty, and the corresponding exclusion of State and federal law.[68] However this sovereignty has been modified or affected by legislation over a long period of time, so that it is now of a residual and limited character. This is especially true in the context of criminal jurisdiction. There, Indian tribes remain free to apply traditional rules or ways of dispute-solving over crimes only in restricted cases.[69] A good example is the case of crimes committed on ‘Indian territory’ where the defendant is an Indian. Until 1885, Indian tribes retained jurisdiction over all such cases to the exclusion of State and federal courts. In 1883 the Supreme Court made this clear in quashing a federal court decision sentencing to death one Indian for the murder of another on their own reservation. Such a decision, the court held, subjected Indians to trial:

not by their peers, not by the customs of their people, nor the law of their land, but by superiors of a different race according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.[70]

But Congress was unwilling to accept Indian settlements of serious offences, and the decision led to the passing of the Major Crimes Act 1886.[71] That Act extended federal jurisdiction to seven (later increased to fourteen) specified ‘major crimes’, even though committed by Indians in Indian country. It is still unclear whether jurisdiction over major crimes is exclusive to federal courts, or is retained concurrently by tribal courts.[72] Within the area of residual jurisdiction, it remains the case that ‘ Indian tribes have power to enforce their criminal laws against tribe members’.[73] This power is subject to a maximum penalty of 6 months imprisonment or a $500 fine, as a result of the Indian Civil Rights Act 1968.[74] Only in a relatively minor way, therefore, do the remaining Indian tribes retain criminal jurisdiction, and in practice this is not often used to apply distinctive aspects of Indian custom or traditional law. Nor is there any explicit recognition of Indian custom in the criminal law of the United States or (to the extent that it applies) in State criminal law.

405. Papua New Guinea: The Present Position. In a number of ways in criminal cases, local customary law has been taken into account by the courts in Papua New Guinea, whether pursuant to or independently of specific statutory provision.[75] However no consistent pattern has emerged. The general criminal law has been adapted to take account of local customs and conditions, for example, in determining the ‘reasonableness’ of a defendant’s reactions in the context of provocation;[76] in sentencing, where local custom has been taken into account as a mitigating factor, and also as a factor of aggravation in some cases;[77] in determining whether conduct was ‘indecent’ or ‘improper’ and within the terms of Code offences[78] and in assessing the criminal responsibility of a child acting on her mother’s orders.[79] On the other hand, the courts have declined to take customary law into account in other contexts. For example:

  • the crime of incest was held not to be committed between a man and his customarily adopted daughter. The term ‘daughter’ in section 226 of the Criminal Code 1974 (PNG) was held not to include a daughter adopted by custom, even though customary adoption is recognised by law, because to do so would contravene the Constitutional requirement that a person should only be liable for an offence defined by a written law.[80] Chief Justice Prentice said:

Is the Criminal Code’s provision as to incest to take effect in the different societies and villages according to what may be proved as the particular adoption process and its particular local effect in each particular case? Such a possibility would render the operation of the Statutory Criminal Law and its administration quite uncertain. Findings of guilt in each case, would depend not upon the terms of the Statute, but upon the evidence as to the particular ‘law’ in each case. Availability of witnesses as to such ‘law’, and the variable enthusiasm of prosecuting counsel and of police, in procuring their attendance, would surely prove an unsatisfactory basis for finding the law.[81]

  • a customary law defence to unlawful assault was rejected on the ground that such a defence was not recognised by statute;[82]

  • defences based on belief in sorcery have been rejected (whether based on provocation, self-defence or mistake of fact).[83]

A good illustration of the ambivalence often expressed by the courts in criminal cases involving customary law is a decision of the Full Supreme Court, Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis.[84] During a dispute over a compensation payment the defendant killed the victim. The defendant and his line subsequently paid the victim’s line 160 pigs and K1102 as customary compensation. The trial judge took into account the compensation and deducted a year from the sentence he would otherwise have imposed, resulting in effect in a 3 year sentence for murder. The Full Court on appeal agreed unanimously that this method of deduction was wrong in principle, and that the sentence was too lenient: by majority (Justice Pratt dissenting) they increased the sentence to 6 years. Chief Justice Kidu said:

As the learned trial judge had accepted that the money and pigs paid by the respondent and his clan was required by their custom, the payment was properly taken into account. A word of caution is required however. Those who rely on compensation as a mitigating factor have the duty to prove, as a matter of fact, the existence of such custom in a proper manner. Evidence from the Bar Table is not the proper manner. I would myself, in future, refuse to accept such ‘evidence’. I say this because it is not every society in Papua New Guinea that requires payment of compensation in cases of homicide or death ... However it is undesirable that a specified period be deducted from an appropriate sentence for any offence ... If the payment of K1000 and 160 pigs means now the deduction of twelve months from a sentence, should the court deduct ten years if the payment is K10,000 and 1,000 pigs? What happens if an accused only pays K500 and 80 pigs? Do we deduct only six months? I do not consider that this court should encourage the concept that rich people can receive lower sentences and poor people higher sentences.[85]

Justice Pratt (who would have imposed an even longer sentence than the majority) was even more cautious about the desirability of taking customary compensation into account.

I do not wish to be regarded as accepting in principle that compensation payment in homicide cases is necessarily a factor of mitigation. I agree that many judges have done so over the years and outside of compensation paid for homicide, the area does not present any insuperable problems provided evidence of custom is properly adduced. I have often wondered whether the grafting of customary compensation onto the introduced requirement of sentencing to imprisonment for a term of years in homicide cases may not contain an inherent incompatibility of concepts which can never be really resolved. The assumption that compensation is a mitigating factor was clearly made both in counsel’s submissions during the present case and by each of us sitting as the members of the Court. It is an assumption however which has never been the subject of proper investigation and detailed submission.[86]

He went on to refer to some of the difficulties involved in taking into account customary compensation in sentencing. These included, in his view:

  • possible discrimination against defendants from poor or weak clans;

  • the difficulty of having to impose a longer sentence on defendants whose groups have no custom of compensation for death;

  • the danger of encouraging continued disputes over the amount of compensation;

  • the difficulty of compensation where the defendant is far from his own territory and family (with consequent lack of traditional protection);

  • the absence of deterrent effect of compensation payments due to their continual use.[87]

406. The Customs Recognition Act (PNG). The application of local customary law in Papua New Guinea is to some extent directed or required by statute. The Customs Recognition Act (formerly the Native Customs (Recognition) Act 1963, a pre-independence Act continued in force by the Constitution) provides in part:

6.(1) Subject to this Act, native custom shall be recognised and enforced by, and may be pleaded in, all courts, except in so far as in a particular case or in a particular context —

(a) it is repugnant to the general principles of humanity:

(b) it is inconsistent with an Act, Ordinance or subordinate enactment in force in the Territory or a part of the Territory;

(c) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(d) in a case affecting the welfare of a child under the age of sixteen years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child ...

7. Subject to this Act, custom shall not be taken into account in a criminal case, except for the purpose of-

(a) ascertaining the existence or otherwise of a state of mind of a person;

(b) deciding the reasonableness or otherwise of an act, default or omission by a person;

(c) deciding the reasonableness or otherwise of an excuse;

(d) deciding in accordance with any other law in force in the Territory or a part of the Territory, whether to proceed to the conviction of a guilty party; or

(e) determining the penalty (if any) to be imposed on a guilty party, or where the court considers that by not taking the custom into account injustice will or may be done to a person.

It will be seen that, in addition to the broad restrictions on recognition of native custom imposed by section 6, section 7 further restricts the issues in respect of which custom can be recognised in criminal cases. Indeed the 1963 Act seems to have been used more to deny recognition of native custom than as a basis for recognition.[88] The Papua New Guinea Law Reform Commission has proposed the repeal of section 7, to ‘enable a more comprehensive account to be taken of customary law, traditional perceptions and beliefs’ than was possible under that section in criminal cases.[89]

407. Recognition under the Constitution. The 1963 Act is apparently reinforced by the Constitution itself, which adopts custom as part of the ‘underlying law’.[90] This is spelt out in Schedule 2:

(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) Subsection (1) 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.

(3) An Act of the Parliament may:

(a) provide for the proof and pleading of custom for any purpose; and

(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and

(c) provide for the resolution of conflicts of custom.[91]

According to BM Narokobi:

The purpose of these provisions is to assist in the development of our indigenous jurisprudence adapted to the changing circumstances of Papua New Guinea, and on the face of it they appear generous to the customs of our people. In truth, however, the scope of their application is rather limited. First, they are made subject to the odious ‘repugnancy to the general principles of humanity’ provision. Second, they are limited by the Constitution itself and by numerous Acts of parliament. Third, the positive way in which the provisions adopting principles of common law and equity are expressed makes it very easy to apply English law on the ground that a custom is inapplicable or inappropriate. Fourth, custom is not included as a source of criminal law.[92]

These limitations have been reflected in the jurisprudence of the Supreme Court since independence. It is difficult to point to a decision which would have been different under a sensitive application of the common law.[93]

408. The Papua New Guinea Law Reform Commission’s Report No 7. In its Report No 7 on the role of customary law in the legal system, the Papua New Guinea Law Reform Commission proposed quite extensive changes to the general law to recognize custom and to encourage the courts to develop a genuinely indigenous underlying law. These included an Underlying Law Bill which would make custom the basis of the underlying law rather than a subsidiary element of it.[94] The Papua New Guinea Commission also considered in more detail the role of custom in the criminal law, proposing a considerably greater role for custom in determining criminal liability and in sentencing. Three main proposals were made.

  • A customary law defence for minor offences. In respect of offences other than homicide and certain serious assaults, the Commission proposed an absolute customary law defence. This was expressed in the following terms:

(1) Subject to Subsection (3), except where the act or omission is absolutely prohibited by statute, a person is not criminally responsible for an act or omission if on the information available and on the balance of probabilities the court is satisfied that:

(a) the person when he did the act or made the omission was acting under customary law and traditional perceptions and beliefs: and

(b) the act or omission was justifiable under customary law and traditional perceptions and beliefs of the customary social group to which the person belonged; and

(c) the customary law was followed and traditional perceptions and beliefs were held at the time of the act or omission by a number of the members of the customary social group to which the person belonged; and

(d) the person at the time of the act or omission was living in similar circumstances or was subject to similar social, employment or other experience as those members of his customary social group.[95]

  • A new offence of diminished responsibility killing for certain homicides (excluding revenge or payback killings). The Commission proposed a new offence of diminished responsibility killing, akin to manslaughter but with a maximum penalty of 3 years imprisonment. An important exclusion, on public policy grounds, was payback or revenge killings, where the defence would not apply.[96] The new offence would apply to ‘a person who by an act or omission unlawfully kills another person in circumstances in which the killing would have been justifiable according to the customary law and traditional perceptions and beliefs of the customary social group to which he belongs’, and would be available where the defendant was charged with wilful murder, murder, infanticide or manslaughter. However the court would first have to be satisfied on the balance of probabilities that the defendant was ‘acting under customary law and traditional perceptions and beliefs’, and that the same conditions applied as were proposed for the customary law defence in minor cases.[97]

These proposals, if enacted, would constitute by far the most extensive incorporation of customary law in the criminal law in any comparable jurisdiction. However Report No 7 has not been presented to or debated in Parliament, and no steps have been taken to implement its recommendations.[98] The Papua New Guinea Law Reform Commission’s project on customary law continues. It is understood that implementation of the proposals in some form remains a possibility, although problems with urban crime (which raise distinct issues) have become even more prominent since 1977 and are tending to overshadow the earlier proposals.[99]

409. Canada. In many respects Canadian Indians and Inuit experience the same difficulties with the criminal law as do traditionally oriented Aborigines in Australia, and for many of the same reasons.[100] But while there has been a degree of recognition of Indian and Inuit customary marriage and adoption, there has been no equivalent recognition in the area of the criminal law. Rather, possible conflicts have been ignored, or accommodated through non-prosecution, ‘jury equity’ or the exercise of discretions in sentencing.[101] In this respect the situation, involving a basic rule of non-recognition in the field of criminal law, is similar to that in Australia, although the need for greater sensitivity to and recognition of Indian and Inuit custom in the criminal law is now being expressed.[102] However, few measures have yet been taken to create official mechanisms to allow Indians and Inuit to deal with their own law and order problems. The James Bay and Northern Quebec Agreement concluded in 1975 between the Governments of Canada and Quebec, the Cree Indians and the Inuit is perhaps the most significant development in recent years. The Agreement resulted from lengthy negotiations with the native people of the area who were to be affected by the building of a large hydro-electricity project. The Agreement contains specific provisions (s 18, 19, 20) dealing with the administration of justice in the area and imposes obligations on the governments of Canada and Quebec, in consultation with the native parties, to adapt the criminal justice system to the circumstances, usages, customs and way of life of the native parties. Although the Agreement has now been in existence for 8 years, little has been done to implement these provisions.[103] Some attempts have also been made, again only in recent times, to make the general system more sensitive to the special needs and difficulties of the native people. Largely this has involved Indians being made more aware of their legal rights and the working of the legal system by such measures as the appointment of Indians as paralegals and ‘native court workers’, special recruitment into police forces and special entry provisions for Indians into University law schools.[104] Some recognition of native law and custom has come from the courts themselves, or more particularly, certain judges sitting in certain courts.[105]

410. Other Countries. Although customary law has often influenced the content of criminal codes or laws, the Commission is not aware of any jurisdiction where indigenous customary law is incorporated to a significant extent in the general criminal law. On the contrary, in many countries a much greater degree of recognition is accorded to customary law in civil than in criminal cases.[106]

411. Conclusions. There appear to be no significant precedents in comparable jurisdictions for the recognition of indigenous customary laws in establishing or excluding substantive criminal liability. Great caution seems to have been exercised in this respect, even in jurisdictions where customary law has received a considerable measure of recognition in other contexts such as family and civil law. One reason for this is the concern about pluralism and equality in the criminal law, which was discussed in Chapter 9.[107] Another explanation may be that the issues have not usually had to be squarely considered, because it has been the practice to avoid difficult cases arising through techniques of accommodation such as non-prosecution or prosecution for lesser offences, the exercise of procedural discretions (eg, not proceeding to a conviction despite sufficient proof), or the use of sentencing discretions to minimise or avoid imprisonment. These techniques seem to be very common. But this situation may not continue. Moves are being made, in some jurisdictions, for a more careful consideration of the impact of indigenous customary law in the substantive criminal law. The recommendations of the Papua New Guinea Law Reform Commission are a significant example of this, as is the prominent place accorded to criminal law issues in this Commission’s Terms of Reference.

412. Issues to be Considered in this Part. Against this background, therefore, four broad areas will be discussed in this Part:

  • The impact of Aboriginal customary laws on liability for what would otherwise be criminal acts, both in terms of the existing law (requirements of intent and defences) and of a possible partial or general defence based on Aboriginal customary laws (Chapter 18);

  • The question whether breaches of Aboriginal customary laws should be a further basis for criminal liability (ie, should there be Aboriginal customary law offences?) (Chapter 19);

  • The recognition of Aboriginal customary laws in criminal cases through procedural means as distinct from the substantive law (which could be cumulative or alternative) (Chapter 20); and

  • The relevance of Aboriginal customary laws in sentencing offenders (Chapter 21).

One difficulty is that the issues are very much interrelated: for example, whether a partial customary law defence (reducing murder to manslaughter)[108] is desirable depends to a considerable extent on the approach taken to sentencing issues. There are al so important connections between questions of criminal liability and sentencing on the one hand and questions of evidence and procedure on the other.[109] The latter questions will be discussed in Part V and Part VI of this Report, but these interrelations hips must continuously be borne in mind.

[68]See para 784-5.

[69]cf RN Clinton, ‘Criminal Jurisdiction over Indian Lands: A Journey Through the Maze’ (1976) 18 Ariz L Rev 531; FS Cohen, Handbook of Federal Indian Law, Michie, Bobbs — Merrill, Virginia, 1832, esp ch 6; G Hall, An Introduction to Criminal Jurisdiction in Indian Country, American Indian Lawyer Training Program Inc, 1981.

[70]Ex parte Crow Dog 109 US 556, 571 (1883).

[71]See now 18 USC para 1153 (1978).

[72]The Supreme Court has been careful to leave the point open: Oliphant v Suquamish Indian Tribe 435 US 191, 218 n14 (1978); United States v Wheeler 435 US 313, 314 n 22 (1978).

[73]id, 322.

[74]25 USCS para 1302.

[75]See D Weisbrot, ‘Integration of Laws in Papua New Guinea: Custom and the Criminal Law in Conflict’, in D Weisbrot, A Paliwala & A Sawyerr (ed) Law and Social Change in Papua New Guinea, Butterworths, Sydney, 1982, 59; BM Narokobi, ‘Adaption of Western Law in Papua New Guinea’ (1977) Melanesian LJ 52; S Frost, ‘The Use of Customary Law in the Criminal Justice System’, in The Use of Customary Law in the Criminal Justice System, Australian Institute of Criminology, Training Project No 23, 1976, 11. See also PNGLRC, Report No 7, The Role of Customary Law in the Legal System, Waigani, 1977.

[76]But Weisbrot concludes that ‘the factor actually taken into account is rarely ascertained and recorded custom, but rather the relative degree of sophistication or westernization of defendants’: id, 76.

[77]PNGLRC 7, 57-8; Weisbrot, 76-8 and cases there cited.

[78]R v Nobi-Bosai [1971-2] PNGLR 271; PNGLRC 7, 54-5. cf Weisbrot, 67-8, 80-1.

[79]R v Iakapo & Iapirikila [1965-6] PNGLR 147; PNGLRC 7, 53-4.

[80]Constitution of the Independent State of Papua New Guinea, s 37(2).

[81]Sangumu Wauta v State [1978] PNGLR 326, 332-3, affirming State v Misimb Kais [1978] PNGLR 241; Weisbrot, 64-5.

[82]R v Misam Wapet (1970) No 602; Weisbrot, 77.

[83]PNGLRC 7, 55-6 and cases there cited. cf RS O’Regan, ‘sorcery and Homicide in Papua New Guinea’ (1974) 48 ALJ 76.

[84][1982] PNGLR 299. The case involved sentencing principles rather than substantive criminal responsibility, but if anything this gives additional emphasis to the doubts expressed, since courts have always been more prepared to tare customary law into account in sentencing than in determining liability.

[85]id, 301-2. Kapi DCJ agreed: id, 302-3.

[86]id, 305. For discussion of the specific problem see also R Scaglion (ed) Homicide Compensation in Papua New Guinea. Problems and Prospects, PNGLRC, Monograph No 1, 1981.

[87][1982] PNGLRC 299, 305-7. It is interesting to compare a decision of the Supreme Court of Fiji, in R v Lad (Review No 1 of 1982, unreported, 5 January 1982). The respondents assaulted a Christmas visitor to their village. In consequence they were reprimanded and given three strokes of the cane by a village elder at a village meeting. Action was also taken to achieve a reconciliation with the victim’s village in accordance with custom. On the respondents’ subsequent trial for assault the magistrate imposed fines of 60 and a suspended sentence of nine months. The Supreme Court revised the decision on the ground that the magistrate did not ‘give sufficient credit to the customary sanctions which from time immemorial have always been available within a village community ... Though these have no legal force as such they are nevertheless entitled, in a suitable case, to recognition by the courts in such a manner so as to uphold their sanctity and moral force within the Fijian society. As observed above all the respondents had been dealt with appropriately in the Fijian customary way and whatever potential strife that might have resulted between the two villages because of the incident had also been taken care of appropriately in the Fijian customary way. One could not wish for a more civilised way of sorting out a potentially explosive situation’. (Judgment, 2-3). The Chief Justice substituted twelve month good behaviour bonds.

[88]cf PNGLRC 7, 46, 57, 64; Weisbrot, 68, 70.

[89]PNGLRC 7, 83. It also proposed the replacement of section 6 by a more positive and general Underlying Law Bill: id, 11.

[90]Constitution of the Independent State of Papua New Guinea, s 9(f), 20-21.

[91]Constitution, sch 2.1. The English common law is adopted by sch 2.2, but only to the extent that it is consistent, inter alia, ‘with custom as adopted by Part 1’.

[92]Narokobi, 57, citing on this last point Sangumu Wautu v State [1978] PNGLR 326.

[93]Local custom is however applied more extensively and informally in Village Courts: Village Courts Act (Revised Laws ch 44), s 26-7. The operation of Village Courts in Papua New Guinea is discussed in more detail in para 769-79.

[94]PNGLRC 7, 19.

[95]PNGLRC 7, 77. The offences excluded by sub-section (3) are: homicide, attempted murder, grievous bodily harm, poisoning, and disabling or stupefying to commit an indictable offence.

[96] id, 59. But customary law considerations could still be taken into account in sentencing for such a killing: id, 76.

[97]id, 78. The same would apply to attempts to murder: id, 79.

[98]ibid. See also the note by D Weisbrot, (1977) 5 Melanesian LJ 164.

[99]This is especially the case with the minimum penalties legislation of 1983-4.

[100]cf DA Schmeiser, The Native Offender and the Law, Canada LRC, Background Paper, 1974, esp 81-2; Alberta Board of Review, Provincial Courts, Report No 4, Native People in the Administration of Justice in the Provisional Courts of Alberta, 1978, esp 46-64; P Havemann, K Couse, L Foster, R Matonovich, Law and Order for Canada’s Indigenous Peoples, Department of the Solicitor General of Canada, Ottawa, 1984.

[101]cf WG Morrow, ‘Law and the Thin Veneer of Civilization’ (1972) 10 Alberta L Rev 38; WG Morrow, ‘A Survey of Jury Verdicts in the Northwest Territories’ (1970) 8 Alberta L Rev 50; WG Morrow, ‘Women on Juries’ (1974) 12 Alberta LRev 321; WG Morrow, ‘Riding Circuit in the Attic’ (1974) 58 Judicature 236; HW Finkler, Inuit and the Administration of Justice in the Northwest Territories: The case of Frobisher Bay, Department of Indian and Northern Affairs, Ottawa, 1976, 16-20.

[102]D McCaskill, ‘Native People and the Justice System’ in IAL Getty and AS Lussier, As Long as the Sun Shines and Water Flows, University of British Columbia Press, Vancouver, 1983, 288; Havemann, Couse, Foster and Mantonovich, esp ch 5.

[103]Minister for Indian Affairs and Northern Development, James Bay and Northern Quebec Agreement Implementation Review, Ottawa, 1982, 77-9.

[104]B Morse, ‘Lessons from Canada?’ (1983) 7 ALB 4-6.

[105]In this regard the decisions of the Northern Territory Supreme Court should be compared with the decisions of Justices Sissons and Morrow in the Territorial Court of the North-West Territories (Canada). See the works cited in n 100.

[106]eg Customary Law and Primary Courts Act 1981 (Zimbabwe), s 3 of which applies customary law in general terms to appropriate civil cases, but makes no provision for criminal cases. Instead community courts are given limited criminal jurisdiction over specified offences: ss 44, 15.

[107]See para 168-9.

[108]See para 451-3.

[109]See para 488, 543, 844-80.