A thoughtful book advocating the virtues of Melanesian law
10 February 2017
I HAVE always unashamedly taken huge pride in my beautiful and unique country, Papua New Guinea – the world leader in languages and cultures. And with a long tradition of law.
PNG was not in a legal vacuum when Europeans colonised its tribes. It already had customary laws governing its affairs.
The colonisers ignored these laws and imposed their own. So today about 98% of the legal principles governing PNG have their origin in English common law, which could adequately address problems back in England but not necessarily in PNG.
Our problems can be unique, but a Melanesian jurisprudence can adequately deal with them.
Indeed, our forefathers saw the weakness of English common law and duly made provision in our Constitution for us to develop our own version of it which is referred to as ‘underlying law’ or indigenous jurisprudence.
The underlying law, Melanesian Jurisprudence, is developed from two primary sources, customary law and English common law.
I strongly believe that Melanesian Jurisprudence is the way to go for this nation since it is PNG made law and I have been researching it for many years.
This research has culminated in the publication of the first ever book on underlying law entitled, The Underlying Law of Papua New Guinea, which is an inquiry into the adoption and application of customary law.
This book has just been published and is set to be launched soon. Copies will be made available at UPNG Bookshop.
It is imperative that we develop a Melanesian Jurisprudence. We have a huge bank of worthy customs at our disposal. They are like ores which we need to extract and refine in the courtrooms and apply to address our unique problems.
Take, for instance, land ownership issues in PNG. English common law cannot adequately address these because English common law does not recognise how traditional communities like ours in Melanesia collectively own land. In these cases you need a Melanesian law and not English common law to deal with the issues – often very complex - that are encountered.
English common law was not made for PNG; it was made for England. However, it was adopted at independence because we were in no position at the time to develop our own version of English common law.
Now we have come of age. We are capable. We can develop our own indigenous jurisprudence.
The Underlying Law of Papua New Guinea is dedicated to this cause.
Thanks countryman. I am happy to share your story of getting that book a success on my blog. http://kaulga.blogspot.com/
Posted by: Peter Kinjap | 02 March 2017 at 04:04 PM
Eh truya wantok Kris. Tasol displa nupla kain tokdave blo yu lo lukim pasin bilo nupla lida bilo Amerika em yet bihainim displa toksave blo mi olsem.
Yumi olgeta lukim kain pasin blo en na tingting olsem, em lomglong liklik aiting. Laga
Kain pasin blo ronim bisnes emi no kain pasin blo ronim strongpla nesion olsem.
Apologies to those who don't follow Tok Pisin. Em liklik tok save blo yumi yet PNG tasol.
Posted by: Paul Oates | 11 February 2017 at 05:48 PM
Posted by: Philip Fitzpatrick | 11 February 2017 at 05:39 PM
Phil and Paul, just because we are lapuns tru, we cannot necessarily claim to have acquired great wisdom from our life experiences.
I offer only one piece of irrefutable evidence that age does not automatically confer wisdom: Donald Trump, aged 70 at inauguration.
Nothing more need be said.
Posted by: Chris Overland | 11 February 2017 at 02:31 PM
I think that may be the point Paul.
We've made the mistakes and learned from them.
Logically, if we say, "Don't do that, it's a mistake," younger people should listen. But of course they don't and go on to repeat the mistake.
A mistake is a mistake, no matter how dressed up it is in high-tech and the latest fad.
I don't know about you but I get little satisfaction from saying, "I told you so."
Posted by: Philip Fitzpatrick | 11 February 2017 at 11:55 AM
we have become historical aberrations. As we recognise what is wrong with our societies and seek to correct it based on our knowledge we encounter younger people who believe they know better.
Of course we never made that mistake did we? Ha!
The only difference now seems to be that we have a wider platform on which to air our views. It doesn't mean the younger generation will necessarily listen to us.
In many ways, the traditional PNG village culture where the old men had standing and were listened to makes more sense that the 'Tweeting' of fools.
But then the society we grew up in had much the same respect for senior citizens. We are living witnesses to a current civilization in grave danger of decay.
Posted by: Paul Oates | 11 February 2017 at 07:58 AM
And you can't legislate for honesty Paul.
Re-reading that other post of mine about Sinaka and the cannibals made me realise that I'm an historic artefact.
Anyone else feel that way?
I've noticed that quite a bit lately. Younger people talking about things that happened in the 1960s and 70s as if it is ancient history.
Hang on kids - some of us are still alive, you know!
Posted by: Philip Fitzpatrick | 10 February 2017 at 10:05 PM
Phil, that's a bit like a Mafioso boss getting a string of Hail Mary's at confession and then going out and committing the same crimes again.
Honesty only works when people are prepared to be truthful, honest and transparent.
As soon as cash entered the PNG compensation equation, truth and honesty suffered. Melanesian custom will only work when there is a guarantee that everyone is truthful, honest and the transaction is transparent.
As soon as one person is able to escape the scrutiny of others, (read Swiss or Singapore bank accounts, Property in Australia, Secret kickbacks, a six pack, DSIP funds held in secret and non accountable bank accounts etc.), the whole concept falls over.
As Chris has rightly said, it's all been encountered and recognised many times before and the lessons learned the hard way. Human nature doesn't change no matter wherever it is located.
Greed and dishonesty has to be constantly countered by law enforcement and even handedness by authorities else we end up with the same problems that now beset PNG.
Posted by: Paul Oates | 10 February 2017 at 05:55 PM
That's pretty much how the village courts work Garry. A good system at that level.
The danger with compensation, of course, is when rich people are involved. A rich man could kill a rival and then pay compensation to his family. And he could do that to future rivals. A smart one could claim "assassination of rival" as a tax deduction.
Posted by: Philip Fitzpatrick | 10 February 2017 at 05:18 PM
Imprisonment, to the best of my knowledge, was not a common penalty in Melanesian cultures. Prison or Kalabus (Spanish "Calabozo" dungeon)is a costly and perhaps not effective way or restoring justice. One could also question its efficiency as a deterrent.
While "compensation" has probably got a bad press because of a tendency to turn it into extortion by demanding too much, the original meaning of compensation was simply to "restore the balance". (Com-pensare.)
Perhaps in PNG Law, at least for some crimes, there is the possibility for compensation to replace imprisonment.
Posted by: Garry Roche | 10 February 2017 at 02:42 PM
I think you'll find that it was Sir Hubert Murray who enshrined the principle of customary land ownership in Papua. The Germans had done something similar. When the administrations of New Guinea and Papua were joined Sir Hubert Murray's edict stood. He upset a lot of Queenslanders in the process.
PNG wasn't left with having to work out how customary land ownership would work. I was on a Commission of Enquiry into Land Matters in 1972 working for chairman Sinaka Goava. The land law, with a few amendments, that came out of that is still in force and quite workable.
Chips is right about common law and customary law. I was the arresting officer in the first post-war case of cannibalism in PNG and the seven men charged got off because, not having killed the man they ate, they were carrying out traditional initiation processes in eating human flesh.
As ex-magistrates you will know about the Customary Recognition Ordinance used at the time.
Most of the laws in PNG (that people like O'Neill haven't stuffed up) are very good pieces of legislation. Some of it, like the Environment Act, is better than what we've got in Australia.
The problem is the enforcement.
Posted by: Philip Fitzpatrick | 10 February 2017 at 02:33 PM
Actually, British Common Law did take into account native customary law wherever it was necessary to do so, as in
Nyali V A-G (1956) 1QB 16-17, when Lord Denning stated:
"The Common Law has many principles and manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over; but it has also, many refinements, subtleties, and technicalities, which are not suited to other folk. These offshoots must be cut away."
And cut them away I did, whenever it was necessary, using this case precedent as authority to do so, when I was a Magistrate in PNG. This precedent produced decisions of perfect balance between British Common Law, and PNG customary law. Even in Port Morresby, surrounded as I was by a multitude of lawyers, there was never a single appeal against any of my decisions made by applying this balance. This showed that British Common Law worked perfectly in PNG, when trimmed down to fit the PNG situation.
Posted by: Chips Mackellar | 10 February 2017 at 11:48 AM
I commend David Gonol for writing about a topic of major importance for PNG.
Paul Oates has described how British Common Law (BCL) was applied in PNG in a modified form, which endeavoured to take into account local customs, practices and traditions where ever this was reasonably possible.
BCL developed over a very long period of time and its origins go back to Roman times. Slowly, over the centuries, it has evolved into the very large and complex body of law that we see today.
While BCL confers important rights upon citizens, it is fair to say that much of it concerns the acquisition, use and disposal of real and personal property.
In short, it is a body of law that is intended to govern a society based upon liberal democratic and capitalist principles.
Traditional Melanesian societies were not based upon such principles, having more in common with some of the ideas associated with communist ideology, especially that of collective ownership and control of land.
As Paul has said, one of the earliest and most significant decisions of the colonial power was to recognise this fact and construct a body of law on land tenure that reflected the Melanesian tradition.
In doing so, it consciously flew in the face of the BCL, much to the great annoyance of those imperialists who were anxious to exploit PNG in much the same way as they had Africa and South East Asia.
It is hard to over estimate just how important that single decision was for PNG.
When Australia relinquished its power in PNG, it left behind a situation where about 98% of PNG's land remained firmly under the control of the traditional owners. Not many colonial powers can point to such an achievement.
Of course, this legacy also constituted something of a problem because it left it to a newly independent PNG to figure out how to reconcile traditional land rights with a desire and need to exploit PNG's abundant natural resources.
Right now, my sense is that PNG continues to struggle with this legal conundrum. David would do his country and his people a huge service if he could devise a transparent, fair and equitable Melanesian solution to this perplexing problem.
Hopefully, his book will ignite further useful debate within PNG about just how its legal system is going to square the circle between traditional law and the demands of a modern economy.
It took the British a mere couple of thousand years to develop the current BCL, so using this body of law as a starting point will hopefully reduce the length of time required to develop a genuinely Melanesian Common Law.
So, David, I say to you: good luck with that!
Posted by: Chris Overland | 10 February 2017 at 09:59 AM
Hi guys, thanks for your comments. Common law has done a great job here in PNG. However, we still need underlying law because most of our issues are unique.
Underlying law can address issues which common law cannot or fails to address.
Also as a patriot, I want to see a body of law developed from worthy Melanesian customs. In this way, I believe, we will immortalise some of our worthy customs.
These are the two burning reasons which have driven me to continue to speak and write about underlying law or indigenous jurisprudence.
Posted by: David Gonol | 10 February 2017 at 09:16 AM
Well done David. You have opened up the proverbial Pandora's Box as regards what body of law should be applicable in PNG.
No doubt others who are far more qualified than myself will feel like responding in detail.
Just a few thoughts however from someone who was there before most PNG people of today were around.
My understanding is that Territories Minister Paul Hasluck was particularly keen to ensure the rights of the PNG people were not expunged but in fact recognised under the law. That is why customary land ownership was recognised rather than accepting that all land simply belonged to the Crown. This meant that land couldn't be easily alienated or purchased and why now most land is still owned by PNG people.
Regrettably however, new laws introduced after Independence seem to have effectively undermined and subverted customary land ownership as in the operation of land clearing to grow oil palm and to extract timber.
In regard to PNG originally having a 'Common Law', this was debatable since there were hundreds of social groups and that no written or codified laws where available when Australia arrived. Given the contrast between the Australian administration and other colonial powers and how these other nations operated, how Australian law was introduced could well be seen as probably quite benign.
The Australian Administration recognised PNG customary law in as much as it could be 'commonally' applied across TPNG after the two colonies were administered as one.
The overarching principle of the rule of law is that it must be fairly applied and obeyed. The body of foreign law introduced to PNG applied to commonally held principles of a Judeo Christian culture. These laws simply reiterated a code of conduct that most nations use today, albeit sometimes applied in an arbitrary way elsewhere.
Since land ownership in PNG was ultimately based on the ability to defend tribal land, the Australian Administration actually helped many PNG people rather than hindered since it basically stopped tribal fighting.
Secondly, the application of law was applied in a common manner across PNG. Local customary laws were followed where they didn't conflict the Territory's codified body of law.
Laws against theft, malfeasance and corruption were rigidity and fairly applied and followed. Laws to prevent these anti social actions are fairly common throughout the world. These laws were introduced to prevent criminal behaviour and were applied in a common and impartial manner.
Can this be said of today's PNG?
Posted by: Paul Oates | 10 February 2017 at 07:43 AM
Although I had no time to read it, I had a feel of this milestone book at the UPNG Bookshop early this week. John Kasaipwalova, the new manager who took over from Dr John Evans showed it to me among other books the university has just published.
Mr Kasaipwalova said PNG writers can consider publishing with UPNG.
Also, PNG authored books already published with Createspace through Pukpuk Publications can be republished as a second edition.
UPNG Bookshop is the only bookshop in Port Moresby or PNG that I know of which sells PNG authored books.
Those of us who've published with Creatspace can consider republishing with UPNG as a second edition. It is up to individual authors to try and get some copies of our books on the self there.
The UPNG Bookshop continues to sell two of my books REMEMBER ME and I CAN SEE MY COUNTRY CLEARLY NOW. Those interested readers in Port Moresby can grab their copies there.
I certainly will get UPNG to republish my two books as second editions soon.
Posted by: Daniel Kumbon | 10 February 2017 at 07:01 AM
Congratulations, David. It's a worthy cause, indeed.
Posted by: `Robin Lillicrapp | 10 February 2017 at 06:10 AM