PAPUA NEW GUINEA is a unique country in terms of traditional customs and cultures.
According to records, PNG alone accounts for a quarter of the world’s languages and/or cultures. To be specific, there are 700 plus languages and a thousand plus tribes in the country. Each tribe has its own customary laws to govern its affairs.
The Constitution and the Underlying Law Act stipulate that customary law should take precedence over common law and equity in the development of the underlying law, or what I call Melanesian Jurisprudence.
But there is a real problem. Our Melanesian customs are not codified and as such are not readily available for reference as are the common law and equity of England.
Therefore, a careful study of character and nature of Melanesian customary law could help us understand the unique nature of the law and see how best we can the courts adopt and apply it in the development of the underlying law.
I intend here to examine the unique nature and character of Melanesian customary law with the ultimate aim of understanding the rapid changes it is undergoing due to globalization and western influences.
There is diversity of custom in Melanesia. PNG is known to have more than 800 languages. That is almost one-third of the world’s languages. Certain Melanesian customs have a character that is flexible and adaptable - so flexible they can easily adapt to the changing circumstances in this 21st Century.
The custom of bride price, for example, is still being practiced. The mode and materials have changed but the purpose and substance remain the same. Had it not been for its flexibility and adaptability, it would have long been extinct.
However, not all Melanesian customs and cultures are adaptable. Many are rigid in nature and as such they have become extinct or are gradually becoming extinct.
Like Charles Darwin’s theory of natural selection or survival of the fittest, the customs and cultures which are not adaptable will be swallowed up by the onslaught of western influence. About three quarters of our customs fit this model and are simply dying.
The custom of arranged marriage was very rigid. It was not flexible enough to adapt to changing circumstances. The western style boy-girl relations seemed so attractive to the younger generation that they abandoned the custom of arranged marriage completely. This trend is experienced all across the country.
Melanesian customary law is community oriented. Everyone lives for the traditional society they belong to. Everything they do, they do for society. Everything they own, they own for society, including land. They live and they die for society.
Since everyone lives and dies for their tribe, the tribe takes charge of everything. This includes success as well as mischief. The individual is mostly safe under the canopy of the tribe.
Unlike English common law, customary law is very community oriented. If one member of the community commits a crime, then Melanesian customary law stipulates that that person’s tribe or clan be punished instead of the perpetrator himself.
If one of my tribesman kills a man from another tribe, though I am in Moresby and do not know anything about it, I will still go into hiding because the men from the deceased’s tribe will come for any one of us.
If the other tribe chooses not to take revenge, then my tribe is expected to pay compensation. The whole tribe will come together and contribute to compensation. The perpetrator from my tribe will not be punished personally unless we hand him over to police and law courts.
Similarly compensation will not be paid directly to the immediate family members of the deceased but to their tribe. Their tribe will then share it amongst its clans, and give to the immediate family members their share. This is Melanesian customary law at its best.
Resources ownership in Melanesia is the single most important threat to development. Landowners in major project areas are a real problem for the government to deal with. They come asking for royalties, seed capital and other entitlements for development taking place on their customary land.
If the government and developers do not meet their demands, then they do so at the risk of destruction, disruption and closure of major developments.
Despite landowners thinking they own resources on their land, the law provides otherwise. In particular, section 5 of the Mining Act 1992 and section 6 of the Oil and Gas Act 1998 vest ownership of mineral, petroleum and gas resources in the State.
But landowners’ claim of ownership comes from customary law, which stipulates that they own the land and everything found on and under it. And so there are two regimes of law and they are in conflict.
The independent State of Papua New Guinea and its provinces and electorates are a pure creature of modern law. Their life comes from statutory law. Papua New Guinea is established by the Constitution whereas provinces and electorates are established by the Organic Laws.
But the vast majority of the people do not understand this. They forget they belong to a country. They treat their provinces as big tribes. They expect their provinces to submit to traditional law. They even try to impose customary law on the province thinking a province could be punished for a crime which has been committed by its members.
The law provides that custom is recognised and, as such, that it should be adopted and applied as part of the underlying law. However, in practice, custom is rarely pleaded or applied in courts.
There may be a number of reasons for this but lack of understanding of the nature and character of customary law could be one that causes lawyers not to plead custom and instead resort to common law.
We think we know custom but we don’t. And we tend to ignore customary law which has governed our societies since time immemorial- and are so quick to adopt modern laws and western influences.
The big failure on our part is that we fail to appreciate that PNG is a mixed society where both customary law and western influences are active and applicable.
Our understanding of our customs will put us in a better position to assist the courts so they can adopt and apply customary law as part of the underlying law.
The onus is upon us to assist the courts to develop underlying law. If this generation fails to do something to help develop underlying law, then nobody else will.
This is an edited version of a paper presented on 17 October 2013 at the Underlying Law Conference in Port Moresby. The conference was organised by the Constitutional & Law Reform Commission. For comments email David at email@example.com