Melanesian jurisprudence needed to clarify PNG’s laws
30 January 2013
DAVID GONOL
THERE IS A DESPERATE and overdue need to develop a Melanesian jurisprudence.
Our wise founding fathers saw the need for this, and made provision under sections 20, 21 and Schedule 2 of the Constitution to develop our own jurisprudence which they referred to as ‘underlying law’.
Melanesian jurisprudence would be a body of law using worthy Melanesian customs, the common law of England in force prior to independence and legal rules formulated using certain provisions of the Constitution.
It appears to me that the constitutional fathers felt the urge to make such provision in the Constitution because 99% of the legal principles governing our country have been borrowed from our colonial masters.
Most of these borrowed legal principles are ineffective in PNG as the majority of our problems are foreign to English law. Therefore there is a desperate need to develop a Melanesian jurisprudence to successfully address problems unique to PNG.
Our Constitution uses the term ‘indigenous jurisprudence’ to refer to the underlying law, but that term is very broad so I have decided to use ‘Melanesian jurisprudence’ as specifically referring to Melanesian law.
Underlying law is a Papua New Guinean version of English common law and is a body of law developed where no legal rules are available to deal with cases before the courts.
For instance, if there arises a legal issue for which there exists no Act of Parliament nor principles of common law, the PNG National and Supreme Courts would be empowered by the Underlying Law Act to develop legal rules using custom first and then the common law of England to deal with the case.
Any legal rule that the court develops then would form part of our underlying law, or Melanesian jurisprudence.
Therefore, underlying law would be ‘PNG made law’, developed by our own National and Supreme Courts and readily applicable to the prevailing circumstances.
PNG’s legal system at present is a photocopy of English legal system. This is good to some extent but most of these legal principles are not readily applicable across the country.
This does not that mean that our people live in a legal vacuum because they have at their disposal customary law to deal with issues.
Sometimes borrowed laws conflict with customary law and at other times they run parallel. In most cases, neither borrowed law nor customary law submit to one another.
This is obvious in PNG today and costs our government hundreds of millions of kina each year.
One example is landownership conflict issues which we read about every day in the media. They are bound to happen because there are two different regimes of laws governing land ownership.
On the one hand you have English property law and laws derived therefrom, and on the other hand you have customary law.
Borrowed law says the state owns all the mineral and petroleum resources found anywhere in PNG. But this idea is totally repulsive and unacceptable to our Melanesian culture.
It is a common custom in Melanesia that no man - even a king - has the right to do his business on somebody else’s land unless he is permitted to do so.
But the state, in the name of extraction of mineral and petroleum resources, allows exploitation of the land, as the Melanesian landowners watch and cry.
The government’s current approach in addressing landowner issues poses a serious threat to even the most celebrated mining projects such as PNG LNG.
The government is handing out cash to keep the landowners’ mouths shut not knowing that, after swallowing the money, like pigs they will growl again for more.
If the government does not respond swiftly, the landowners will threaten to shut down projects. Out of fear, the government will continue to stoop low even if it means the prime minister flying into a village to enter the hut of the landowner, sit down with him and offer him more money to keep his mouth shut for a short while.
Is feeding the landowners with money the only option available to the government? No, there are other ways, but the government is not exploring them.
One way is to develop Melanesian jurisprudence. We have to develop the underlying law which will be consistent with the Constitution and with the current circumstances of the country.
Let’s develop our underlying law to give landowners equal footing with the government and any resources developer. That is, let landowners enter into joint venture agreements.
Many of the legal principles adopted at independence are of English origin and they do not adequately address many of the problems unique to PNG.
Even our customary law has its limits – and, in some instances, it fails to address problems which are foreign to customary law.
We need to develop our underlying law according to the Constitution and the Underlying Law Act so as to cater for the rapid changes taking place in PNG.
Until specific underlying law principles are developed to address the problems facing PNG triggered by rapid socio-economic development, we will continue to struggle to adequately address them.
Using handouts to keep landowners’ mouths shut is not a lasting solution. There is a desperate need for a Melanesian jurisprudence.
The writer is an Assistant Registrar of the National Court and is based in Port Moresby. This article is an excerpt from a paper presented at a recent Law Reform Commission conference in Alotau on development of the Underlying Law. Comments to [email protected]
The Australians left you with a set of laws which had grown and developed slowly over thousands of years and go back to the old Ten Commandments.
They had been tried and tested over and over, altered and refined. I'm no lawyer but I know a good law from a bad law.
You were left with a lot of good laws. You, no doubt, have added many more over the years, as a result of many court cases.
At the moment we have people coming to live in Australia who come from a great diversity of cultures with a great diversity of laws.
Some of them are wanting to try and change our Australian laws to fit in with their own culture/religion. Many of us say if you are not happy with the way we live then go back to your own country, with its constant bloodshed and strife.
On the whole, Australia is a relatively peaceful country, and our laws (these laws that we left with you) play an important part.
As David says, there is probably no "common law" in the many Melanesian cultures which make up PNG culture.
This English Common Law that we left with you has been tried and tested. Anyone who starts playing around with it should be closely scutinised.
I hear that certain parts of the USA are suffering from people who are playing around with English Common Law and it looks like they are doing it for their own benefit.
If you start altering the Land Laws and the laws regarding the ownership of minerals in the grounds you will soon find that it has disadvantages for many.
But I respect Phil's comments and there does seem to be a need to bring in the land-owners when mining ventures are in their planning stages.
In fact, I thought that was already part of the laws that we left with you.
Posted by: Mrs Barbara Short | 31 January 2013 at 06:46 AM
I read that article with interest having been born in Moresby in the early 60s.
I wonder if PNG concentrates on fair and proper governance of its people first, using say the Westminster system as a basis, the debate on the changing of its legal system may be simple.
Posted by: Vincent Mycoe | 31 January 2013 at 05:25 AM
Is there such a thing as "common law" in the Melanesian/PNGan context?
In a very broad sense, there are some common methodologies of conflict resolution but the actual nuances may vary quite significantly across different communities.
For example, while compensation might be generally accepted throughout a majority of Melanesia/PNG as an acceptable form of conflict resolution, the extent and form may not necessarily suit everyone.
While the highlanders usually hold large and overtly excessive compensation ceremonies, most coastal communities would normally be content with a token gift and a show of genuine show of remorse.
I think there might be a problem with a one-shoe-fits-all solution.
Posted by: David Kitchnoge | 30 January 2013 at 04:54 PM
With regard to the issue of land and development "ownership".
In every situation there is the potential for sacrifice and benefit. Give up your right to absolute freedom (abide by a legal system) and you expect to gain protection against those who would harm you.
Individuals cannot operate in the international arena but rely on their national government. They do however have a right to expect their national government will deliver justice to them.
Posted by: Laurence Quinlivan | 30 January 2013 at 03:03 PM
Nice article, David. I totally agree with you.
Yes, most of the laws were made based on British common law. And therefore, most of the laws do not go well with the diverse Melanesian cultures in Papua New Guinea.
Unlike other countries, our people live in thousands of small clans with varying cultures and traditions, thoughts and beliefs.
The foreign laws adopted from England and Australia are not compatible with most of these societies in PNG.
The colonial masters pre-independence did not have much knowledge about our societies and their motive was to bring these varying societies together by adopting and establishing laws that they thought were suitable for us.
Even our forefathers after independence had little knowledge of the future of PNG in the next 30 years despite being the founders and architects of the constitution of this country.
They failed to critically look at some aspects of the Melanesian context. For example, resource development.
With changes in aspects of the lives the people, there also needs to be a change in some of those important laws. They need to be either altered or amended based on Melanesian custom.
Posted by: Joe Wasia | 30 January 2013 at 11:17 AM
The example that you give is a very apt one David.
When the offer of money doesn't work the government brings in the big guns - the riot squads. When that happens it usually indicates that the scope for further negotiation has gone.
Mandatory joint venture agreements between the landowners and the developers is a good solution. 'Joint' meaning something more than the 5/95 split proposed in the amendments to the Mining Act.
Most of the resource developers adhere to the law. The law is their fall back position.
If the law is changed they will either follow it or pack up and leave but there will always be someone to take their place.
Posted by: Phil Fitzpatrick | 30 January 2013 at 09:18 AM