Mismatched law (& the law bringers who made it fit)
11 November 2021
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 book had a long gestation and combines original historical and legal research along with interviews, and personal observations and experiences.
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.
It would be interesting to know when this event took place Joe.
The Customs Recognition Act didn't come into force until 1963 (and is still law as far as I know).
The section of the Act pertinent to this case is Section 4:
Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of–
(a) ascertaining the existence or otherwise of a state of mind of a person; or
(b) deciding the reasonableness or otherwise of an act, default or omission by a person; or
(c) deciding the reasonableness or otherwise of an excuse; or
(d) deciding, in accordance with any other law 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 thinks that by not taking the custom into account injustice will or may be done to a person.
I would have thought that the customary reaction to the assault on Yandapae's cousin would have been to seek compensation rather than carry out direct retaliation. Had the assault been reported to the kiap he probably would have arrested the offenders and then not only tried them for assault but also ordered them to pay compensation.
In the event the retaliation had occurred and he had to deal with it as a criminal matter. He would also have been mindful of curtailing what could have spiralled into a series of retaliatory acts on both sides.
As far as invoking the Customs recognition Act, he might have done that in terms of the sentence he gave Yandapae.
Posted by: Philip Fitzpatrick | 15 November 2021 at 08:32 PM
I am interested in Joe Herman's comment.
In the case as described, the kiap was caught between his duty as a law officer and his insight into the cultural norms of the people involved in this case.
Once the theft of the pig had been formally reported and a complaint laid, the law required him to act. If no-one had formally reported the matter he could have avoided taking any action even if he knew about it at an anecdotal level.
This case neatly illustrates the way in which a kiap could be forced into acting when, privately at least, he may have been quite sympathetic to the defendants.
I would hope that the defendants were not sentenced to lengthy prison terms because this was one area of the law where the kiap could use his knowledge of cultural norms and expectations as a mitigating factor. The Supreme Court frequently did this, as did most kiap courts.
The over arching policy requirement placed upon all kiaps was to ensure good order and good governance in the areas over which they exerted control. This definitely included the suppression of physical violence even if that was part of the prevailing tradition and culture.
Indeed, this was and is one of the basic and enduring objectives of the British legal system upon which the colonial era laws of both Australia and PNG were based.
Thus in a contemporary Australian context, the suppression of violent behaviour is a primary objective of police forces and taking retaliatory action for the criminal conduct of another person will rarely be accepted as a defence or even a mitigating factor in sentencing.
So I think that the kiap in this case arguably acted correctly even though Joe and others may think otherwise.
Posted by: Chris Overland | 15 November 2021 at 01:39 PM
This was my family’s felt experience in the pursuit of justice.
The word arrived quickly that Pambene, a cousin in neighboring Pumas Village had been assaulted by his tribesmen over a land dispute resulting with severe bodily injuries.
As expected, Yandapae, my oldest brother, and two cousins retaliated and forcibly took a big pig from the culprits as compensation. It was slaughtered at Kepelam and the meat distributed among our tribesmen.
Retaliatory actions were normal. Any subsequent outcomes would have been addressed between the two tribes.
However, by this time the colonial administration had decreed that such practice was unacceptable behavior, the owner of the pig reported the matter to the police. Yandapae and the two cousins were taken to Laiagam station and were charged with assault and theft.
The Kiap disregarded the fact that Yandapae and the cousins’ conduct under such circumstances was culturally acceptable. Had they not carried out the dawn raid and taken the pig, Yandapae as the elder of Pambene’s maternal cousin would have been regarded as pisirii pyapae, a coward, by the clan members. He felt he had to live up to the expectations and follow the footsteps of my father who had the reputation as fearless, well known for conducting raids singlehandedly. The ability to fight, conducting raid, and shrewd economic dealings were all part of the attributes of an ideal Enga man.
My father found himself in an agonizing predicament. On the one hand, he was the Tultul who played a junior role in the penetration of the colonial power and pacifying the area. On the other hand, he felt obliged to defend Yandapa’s action. His reputation was at stake. He found the ordeal and the effect of the colonial power striking home and the imprisonment of Yandapae quite devastating.
Being a Tultul, and a paramount chief, should he had been accorded the courtesy to make an input in his son’s charges? Should he had been? Who knows? Carrying out his most recent role, as Tutul, took precedent over a role he played effectively resolving conflicts and preserving harmony for years. This was the beginning of increasing instances where colonial influence and the traditional norms came into direct conflict.
During the court hearing, we stood outside and peeped through the cracked louver blade windows. A policeman kept us at bay and we could not hear anything inside the courtroom. Ultimately a couple of policemen led away Yandapae and the cousins to serve their prison time. They glanced at us as they were led away.
Eventually we learned that Yanadapae told the Kiap that he was responsible for the dawn raid and getting the pig and the cousins were mere accomplices. Therefore, he was sentenced longer than the two cousins.
When they were released from prison, they had a hero’s reception at Kepelam. This gave a different meaning to imprisonment. Pambene and his clansmen felt remorseful so they made some restitution presentation of pigs to Yandapae and the two cousins. The spirit of mona auu puu katenge, reconciliation, one of the hallmarks of Enga life was preserved in this incident.
Posted by: Joe Herman | 15 November 2021 at 03:32 AM
Something that I didn't mention in the review and which I should have done is that by the late 1960s many kiaps were Papua New Guineans, as were senior public servants in other fields.
In the case of local kiaps it can hardly be said that they were ignorant of Papua New Guinean culture and lacked understanding.
Posted by: Philip Fitzpatrick | 13 November 2021 at 07:45 AM
Academics have always given kiaps a hard time. I tried to cover this ingrained attitude when I wrote 'The Northumbrian Kiap' but still can’t explain it.
Perhaps they think they have secured a monopoly on cultural sensitivity?
Perhaps they think bush stained kiaps were intellectual barbarians?
Perhaps in the late 1960s there was a pre-woke woke-like abhorrence of any system or structure which smacked of colonialism?
Perhaps the authors of 'Making Law in Papua New Guinea', who are each from the United States which chopped off British imperialism as early as 1776, have absorbed ingrained cultural abhorrence of any system, like kiap government in pre-independent PNG, which carried hints of Westminster based colonial taint?
Perhaps Professors Otley and Weisbrot, who held UPNG positions in the mid to late 1970’s could not avoid being swept up by the tide of anti-kiap sentiment which dominated Waigani thinking at the time?
Former kiaps can however speak from personal experience and the anecdote I have selected to challenge the contention the kiap system was fundamental to the imposition of an insensitive legal structure that was brutal in its approach to village mores is this.
It covers a High Court murder hearing that took place in Minj in the Western Highlands sometime in 1972.
The defendant, on his bed in the middle of the night, had been overcome by a sorcery laden nightmare, woken up suddenly, and axed a kinsman who had responded to him shouting in his sleep and was standing over him.
He had thought his would-be helper was a sanguma with evil night time intentions. His remorse was profound and no one among his wan-toks, including clan leaders like Councillor Mek who were present in the court, thought his action had been pre-meditated or malicious.
The judge had of course acquired the bulk of his case knowledge within an entirely different social structure and was examining the case through restraints outlined by Section 301 of the Queensland Criminal Code as well.
There were no eyewitnesses so the defendant was asked if he had anything to say in his defence.
The man launched a torrent of tok-pisin that only someone familiar with village thinking could have understood.
The kiap interpreter did his best and the judge was unusually pensive. After tugging at his chin, and asking supplementary questions which provoked yet more anguished response, the judge found the defendant guilty then sentenced him to be detained until the rising of the court.
In other words the defendant was able to return to his village, and the security of his wan-toks, immediately after the judge had stood the court down, removed his wig, climbed into a vehicle and left.
So much for the accusation that colonial law was consistently administered without cultural empathy and was routinely overbearing.
Emeritus Professor David Weisbrot AM is a dual Australian-American citizen - KJ
Posted by: Robert Forster | 12 November 2021 at 07:30 AM