Law, custom & compensation in Melanesia: restoring the balance
20 April 2017
THE word ‘compensation’ has at times taken on a negative connotation in Papua New Guinea.
This is due in part to the occasional behaviour of victims or relatives of victims demanding disproportionate compensation for injuries or deaths.
However, before rejecting claims of compensation or actions relating to compensation, it is useful to more carefully examine the concept and the legal processes underpinning it.
The word ‘compensation’ is derived from ‘com’ meaning together, and ‘pendere’ meaning to weigh. So the original meaning of the word is to evaluate or to restore a balance. The Pidgin phrase ‘skelim na stretim’ provides a good parallel.
So compensation is not meant to be a type of extortion but rather a careful weighing of matters, a restoring of balance in the community, an evaluation and action to as far as possible remedy the harm done. “Mipela i skelim na stretim”.
When dealing with disputes that involve the killing or murder of a person, English common law procedures usually conclude with the decision regarding guilt or innocence of the accused and the imposition of a sentence if the accused is found guilty.
But common law does not explicitly concern itself with reconciliation of the parties concerned. The process normally confines itself to deciding whether or not the accused is guilty and, if the accused is guilty, it then decides on the punishment.
In most Melanesian systems of justice, however, the process is directed towards achieving reconciliation between the parties and restoring harmony in the community.
In other words, even after guilt and punishment has been clearly established the parties to the case try and reach some reconciliation and harmony.
I have seen rival tribes await a court decision outside Mt Hagen court house, and then having heard the evidence and decision come together to see how they can arrive at reconciliation taking the court decision into consideration.
I recall the clan of Raphael Doa giving pigs to another clan as a result of a court decision.
Historically, Saxon and Germanic law were much closer to the Melanesian system. If a person was killed, the families of the criminal and the victim would meet and decide on the amount of ‘bote’ (compensation) to be paid.
In ancient Anglo-Saxon and Germanic law, ‘wergeld’ was a price set upon a person's life on the basis of rank and paid as compensation by the family of the slayer to the kin or lord of a slain person to free the culprit of further punishment or obligation and to prevent a blood feud.
Later, with the introduction of Roman law and in English common law, murder came to be seen as an offence against the state and the victim’s rights were overlooked and practically ignored.
It is perhaps ironic that many modern legal systems are returning to a greater recognition of “victim compensation”. One needs only to type “victim compensation” into an internet search engine and note of number of web sites dealing with the concept.
We cannot bring back the life of someone who has been murdered. No amount of compensation can adequately make up for the loss suffered by the murdered person’s relatives.
However, the clan of the offender can make genuine efforts to express their sorrow and regret, to try and achieve some reconciliation and contribute to victim compensation.
The danger is of course that wealthy people from a wealthy tribe may commit murder and think they can avoid punishment or personal sanction like imprisonment.
The challenge then is to be able to combine adequate punishment for the crime with acknowledgement of the need for victim compensation and the reconciliation of the parties concerned.
Thanks Fr Garry, interesting article. I will share it with our international law students.
Posted by: Bernard Singu Yegiora | 21 April 2017 at 11:07 AM