PNG-made: The development of Melanesian law

DAVID GONOL

THE IDEA OF THE UNDERLYING LAW is a constitutional idea. The Papua New Guinea Constitution and the Underlying Law Act provide for the development of underlying law or indigenous jurisprudence, which I call Melanesian Jurisprudence.

Underlying law or Melanesian Jurisprudence refers to that body of law which the PNG Constitution charges the National and Supreme Courts to develop using customary law and common law of England.

In other words we can say that it is a PNG-made law.

The situation today is that most of the legal principles governing PNG have been borrowed from England and Australia. As a matter of fact about 98% of our legal principles have their origin in England.

So the current legal system is almost a photocopy of English common law. That is good to some extent but most of our problems are Melanesian in nature, so English common law does not adequately address them.

Thus we desperately need a Melanesian law to deal with problems which are unique to us – an underlying law or Melanesian Jurisprudence.

 

Since we have yet to fully develop this underlying law which will reconcile customary laws and modern laws, at the moment we are maintaining two different legal systems running parallel to each other - our customary legal system and our modern legal system.

The customary system is being administered by individual customary groups throughout the country whereas the modern system is being administered by the courts.

Take for instance the crime of murder and how it is dealt with by the two different systems. Murder is a universal crime. You find it in civilized societies as well as uncivilized societies. In traditional Melanesian societies and modern Melanesian societies.

Traditional Melanesia had its own laws to punish those who committed such crimes. Foreigners ignored our traditional laws and went ahead and imposed their laws, which sometimes are not effective.

Melanesian customary law stipulates that, unless revenge is contemplated, we pay compensation to the relatives of the deceased and absolve the culprit of culpability and bring about communal harmony to society.

The modern criminal law stipulates that a death sentence or a term of years be imposed on the culprit.

Traditional law aims to bring about peace and harmony to the whole society but modern law seeks to punish.

Modern law is individual-oriented whereas customary law is community-oriented. Melanesian societies are communal societies. We live in tribes and our tribal and communal bond is so strong.

But we now live in a modern era in which modern laws are applicable. So you can see there are two different systems of laws with different goals running parallel whilst competing to deal with the same matter.

The doctrine of underlying law appreciates the two regimes but goes on to say that the courts should develop the principles of underlying law using custom and the common law of England.

Unlike all other legal principles applicable in the country which have foreign origin, underlying law principles are purely of Papua New Guinean origin. Our own National and Supreme Courts develop them. So it is right and fitting to say the underlying law is PNG-made.

If underlying law is PNG-made law, it can easily identify and address problems which are unique to Papua New Guinea. So we should do what we can to help develop our underlying law or Melanesian Jurisprudence in accordance with the Constitution and the Underlying Law Act.

Yes, PNG, we will not go to sleep until we see a new day dawn bearing Melanesian Jurisprudence over the horizon.

Please legal eagles, give us a hand in developing an indigenous Melanesian Jurisprudence suitable for the prevailing 21^st Century Papua New Guinea. Our founding fathers charged us through the Constitution to develop our underlying law and we should not continue to fail them and our Constitution.

To comment to David personally on the subject of Melanesian Jurisprudence, please email dzgonol@gmail.com or call 3245845. God bless PNG and its legal system

Comments

[Neil Yamelu]

It seems that our legal system is following too much of England's law to make good decisions on crimes and other related issues.

This seems not right because we have our own customary law to decide on these issues, not only common law.

Therefore using both laws to make decisions is better for the good of everyone.

[Bernard Yegiora]

Wonderful comment by Paul.

A major challenge.

[Talsha Bannick]

All the laws including the rules and regulations that we are abiding by in Papua New Guinea today are made and proccessed in a distant place in Great Britain.

Those people who passed those laws for us to follow doesn't understand our traditional and customary laws. There is a great diversity in our approach to the law.

Therefore, for the good of everyone, studies should be carried out to fully undersatand the Melanesian Way and then new laws can be made in accordance to the customary and the British Law.

[Bernard Yegiora]

You might want to read my UPNG Honours Sub Thesis.

It is about us following the Chinese way of thinking demonstrated in the Economic reforms intitated by Deng Xiaoping.

I suggested amendments to our organic law on National and Local - Level Government Elections (OLNLLGE) in particular Section 84 and 85 to mirror the Chinese economic reforms and its success.

In essence, I recommended a guided form of democracy for PNG by restricting the right to stand for public office (Section 50 of the National Constitution) to only the educated elites.

We can use this understanding to help us test the viability of the Melanesian way of thinking in the 21st Century.

If the Chinese can do it, PNG can do it as well.

My email(byegiora@dwu.ac.pg)if you are interested.

[Paul Oates]

If I may throw my twopenneth worth in: The essence of developing a 'Common Law' is to first have a common basis for it. Common Law was developed and codified after many hundreds of years of practice. During the time it was codified, the national culture and ethics continued to evolve.

The issues that will have to be primarily considered are what common benchmarks are there throughout the nation? Religion can be a unifying force or it may not unless the majority follow and accept similar practices.

Given the huge number of traditional cultures in PNG, the first aspect I'd imagine would be the isolate and codify what are common ethics and standards throughout the land.

That would be a good starting point. The second is to establish where any common law may fit into the current or future justice system.

When I lived on Cocos Islands there were three levels of law. Australian mainland law, The laws of the Colony of Singapore in 1966 (when Cocos was transferred to Australia )or now the laws of Western Australia and Muslim customary law as it applied to the Cocos Malay community should they so wish it.

Is there a registry of decisions made by local magistrates and village courts that could be assembled and cross referenced by computer? The first step would be to agree on the way any information and past decisions were filed and cross referenced.

Perhaps the Law Society could sponsor a discussion blog and have the considered views of junior and senior judiciary posted for consideration?

[David Gonol]

Thanks for the comments. Yes, a holistic approach is needed but we must start somewhere.

I am coming from the legal point of view. Others should come from history, philosopy, anthropology, etc points of view so that together we should develop our Melanesian jurisprudence.

[Bernard Yegiora]

A good suggestion by Jeff.

When I was studying history and philosophy in UPNG our lecturer Mr Willaim Ferea taught us dialectical philosophy. The difference between Melanesian and Western philosophy is clearly outlined in your article.

In order to do what you want us to do we have to look at this issue from different perspectives. Study Melanesian philosophy, culture, history, politics, conflict resolution and a range of other areas in order to develop a Melanesian jurisprudence.

In short, we must take a holistic approach.

[Jeff Febi]

Thank you David. Educational indeed. Perhaps you should start a series to raise awareness of loopholes if any in our laws.

Cheers.