Making Law in Papua New Guinea: The Colonial Origins of a Postcolonial Legal System by Bruce L Ottley, Jean G Zorn and David Weisbrot, Carolina Academic Press, Durham, North Carolina, June 2021, 526pp. ISBN: 9781531005504. Editions: Kindle AU$68.90; Paperback AU$144.75. Kindle edition available from Amazon here
TUMBY BAY - The period just before and just after independence in Papua New Guinea was a time of optimism and promise.
That Pax Australiana - the institutions built by the colonial Administration - would remain intact, as stable and progressive as they were, was never assumed.
For example, it was acknowledged that the inherited Westminster system of governance, including its legal systems, would be modified to better suit the new nation and its people.
This adaptation was envisaged as a softening of the fiercely adversarial nature of the Westminster system through the adoption of traditional Melanesian communal systems, including consensus decision-making and dispute resolution.
Indeed, following independence in 1975, a few valiant efforts were made to make this happen, particularly in the legal sphere, but a uniquely Melanesian jurisprudence never eventuated.
Instead, PNG’s politicians and other leaders became almost totally preoccupied with economic matters. The authors of this new book see this neglect of the law as a significant mistake.
They suggest that, had the leaders addressed the political and legal systems first, the conditions necessary for orderly, stable and sustainable economic development would have prevailed and most of the problems with law and order, corruption and social dislocation would not have occurred.
The authors also suggest that the development of PNG’s immense natural resources would have proceeded in a much more equitable manner.
The book is an exploration of the legacy of these failures and the implications of the retention of colonial style law and politics for modern PNG.
Each of the authors was involved in either teaching law or advocating for law reform during the 1970s. One of them was also a magistrate during this period.
The authors’ conclusion that a uniquely Melanesian jurisprudence never transpired, and that this is a grave failure, will ring true to many Papua New Guineans and others, but the context in which the book presents this is problematic.
This is because the material is placed within a framework of critical race theory, which maintains that, while those in power control and enforce the law, it will be next to impossible to develop a system of social equality.
This is a theory that has obtained popular currency in the last few years, mainly in the USA. It is based on the idea that race and white supremacy is a social construct that advances the interests of white people at the expense of other races.
The authors set out how they believe this theory is applicable in their discussion of the development of law and society in PNG, beginning with the perceived attitudes of the colonisers which are described in these words:
“Papua New Guineans are here to serve; their hospitality and forbearance are eminently exploitable; they do not deserve equal rights, nor should they be accorded equal dignity; their quaint culture and traditions are ‘dying’, which is a bit of a pity; the interventions of the West are well motivated, if sometimes naïve, but in any event are ultimately benign; and such aspects of Melanesian culture that are worth preserving should be done so in European museums.
“This view also shaped the attitudes and actions of almost every Australian colonial administrative officer, from the higher level officials to the patrol officers, as evidenced by their own reports and memoir."
As a former ‘colonial administrative officer’, as are many readers of PNG Attitude, I have a great interest and some knowledge of this idea.
In the first instance, I have suspicions about its simplistic ‘woke’ manifestation and, in the second, I am sceptical about its relationship to actuality.
Journalist Zaid Jilani defines the word ‘woke’ as referring to a social media fuelled, left wing political ideology derived from the state of being awake to or conscious of structural inequalities in society.
He writes that, “someone who is ‘woke’ is constantly inspecting every institution in society, looking for the presence of racism, sexism, and other forms of pervasive prejudice”.
In many ways the authors of this book fit into this category.
That said, no one can dispute that Australian colonialism didn’t have its faults. But it must also be acknowledged that there was much that was good in the way colonialism was conducted.
When comparisons are made with other colonial regimes, the Australian narrative stands out for its measured and benign nature.
There were no large scale atrocities committed in PNG by the Administration, as it was called; no one was enslaved; there was no extensive land confiscation; customary practises were largely left intact (although not necessarily by the churches); and the transition to independence was almost seamless without the necessity for any form of bloody rebellion.
Critics of critical race theory point out that it relies on social constructionism – the idea that many matters viewed as normal in society - such as understandings of gender, race and class - are socially created, and not an accurate reflection of reality.
They argue that this idea diminishes concepts of truth and merit by placing myth and narrative over objective evidence.
In that sense, one must be wary of the theory underlying the arguments in this book and the perceptions it offers.
As most patrol officers will attest, the bringing of the law, and its application, was quite different in the bush. Kiap courts often bore more resemblance to traditional moot courts than to formal court procedure.
What appeared and what didn’t appear in kiaps’ official reports were often circumspect, to avoid unwanted intervention from deskbound senior colonial officials. Other former kiaps and I have written elsewhere about not relying on the veracity of such reports.
Here’s my ‘No need for a patrol report, old chum’, Robert Forster’s ‘Those old patrol reports’ and Ross Wilkinson’s ‘Those old patrol reports II’, all from PNG Attitude in 2019. They tell quite a story.
Kiap bashing has always been a popular sport amongst the academic community, and judging by this book not much has changed.
Too frequently in both the historical material and in the analysis derived from it, the recurring characterisation of kiap ‘ignorance’ and ‘indifference’ to the Papua New Guinean people and their customs is as tedious as it is flawed.
I offer just a few extracts that show this predilection. Although the academics around at the time are either very aged or have already sauntered fashionably late into that great seminar in the sky, their often misconstrued and intellectually lazy ideas survive:
"Patrol officers expected to be both obeyed and respected.”
“Kiaps never asked villagers what the village might need; instead, they ordered villagers to do what the patrol officer decided was good for them. It was a totally top- down, authoritarian form of rule. It brooked no opposition, and every divergence from the patrol officer’s orders, no matter how small or sensible, was viewed as opposition and an affront to the patrol officer’s authority.”
“Part of this attitude came from the kiaps’ lack of education for their demanding roles. With little preparation, they were thrown alone into what to them must have seemed a forbidding wilderness, where they were told to keep order over hundreds, maybe thousands, of people, most of whom spoke languages they could not understand and had customs they could not fathom.”
“Despite outward braggadocio, most patrol officers must have been frightened a lot of the time: frightened of losing control, frightened of being killed, or just frightened of being laughed at and ignored. Their only safety, as they saw it, was in insisting on obedience from these people at all times.”
"While the existence of field regulations that covered almost every eventuality a kiap might meet probably kept many a youthful, inadequately trained kiap from committing acts even more outrageous than many of them did, the plethora of rules, combined with the top-down public service that they supported, also prevented independent spirits, especially those from within the local population, but also those in the colonial service itself, from doing the kinds of innovative things that would have brought to Papua and New Guinea an earlier, less officious, and more human-centred kind of development.”
That selection is probably enough, but it is worth noting that among the copious references accompanying each chapter of the book there are few, if any, relating to material written by kiaps themselves.
This is strange because in recent years there has been much written, not just in the ‘boys own adventure’ genre that the authors take pains to disparage but by well-educated people seriously analysing their role in Australia’s colonial past.
Taken as a group, kiaps have been prolific, knowledgeable and astute witnesses of the impact of Pax Australiana on the legal and many other fields of administration. One outstanding example is Bill Brown’s series, A Kiap’s Chronicle, serialised in PNG Attitude and available free here.
No fair-minded person reading Brown’s epic account of the role of these officers could be anything other than impressed at the instrumental role of kiaps in building the nation we now know as Papua New Guinea.
In the latter part of ‘Making Law in Papua New Guinea’, the authors consider ways in which it may still be possible “to infuse national institutions with real meaning and legitimacy in Melanesian eyes” while retaining aspects of value in the inherited systems.
In this endeavour they extol the work carried out by the late Bernard Narokobi in relation to the Constitutional Planning Committee (CPC) and the PNG Law Reform Commission.
They particularly rue the fact that Narokobi did not have more input into drafting the Constitution, which they describe as a dry and heavily detailed document produced as a “project for expatriate bureaucrats — legislative drafters, who approached the task as if fashioning a complicated piece of tax legislation”.
Narokobi, on the other hand, wanted a Constitution that was transformational and which would “set out the highest ideals and standards for the Legislature, the Executive and the Judiciary”.
As chairman of the Law Reform Commission, Narokobi often pointed out that “the CPC had strongly recommended severing the legal link with the law of Australia, requiring that all of our present laws … be carefully reviewed, and inconsistent laws repealed or amended as is appropriate”.
The authors point out that “Narokobi proved to be an indefatigable advocate for establishing a new legal order built on Papua New Guinean ways, but augmented by the finest ideas, laws and procedures from the West, believing that consciously melding the best of different traditions would produce the strongest society”.
Unfortunately Narokobi’s recommendations were largely ignored.
The only notable development that came to fruition was the passing of the Village Courts Act in 1973, which ironically shares many similarities with the old kiap style ‘courts’, notably where decisions are based on “a mixture of common sense and custom”.
The authors support the wider integration of customary law as described by Narokobi but they acknowledge that the “legacies of colonial history” and “the associated institutions, power relations, dependencies and attitudes that linger long after independence” are now almost impossible to surmount.
This may seem esoteric but ‘Making Law in Papua New Guinea’ is easy to read and presents a useful, albeit well-trodden, imagining of Papua New Guinean history as it applies in both a general sense and in relation to the state of the law.
It is unfortunate that both the digital and hardcopy versions of the book are too expensive to obtain general distribution, especially in Papua New Guinea, because there is much of value in it, as well as plenty to debate.
That said, the digital copy that I received for this review was a technological marvel and absolutely delightful to work with.