CONTRARY to popular theory, Papua New Guinea was not in a legal vacuum when first colonised.
Papua New Guinean societies were well organised and effectively governed by Melanesian customary law.
During the time Melanesian customary law ruled, there were no formal police services, defence forces, courts of law and prisons but crime rates were low compared to the present time.
There was minimal rape, corruption, robbery and violence - except where disputes or isolated savage acts triggered tribal warfare.
If you go back to your roots and exhume your history, I guarantee you will be amazed at the way our societies were governed by Melanesian customary law.
But our colonial masters ignored this and imposed their own law above it. So we now have two conflicting legal regimes – customary law and modern law – governing the same issues.
All regimes of law should have one primary goal - to serve justice. In general, I don’t see this happening in our nation.
It appears as if the two legal regimes are constantly at loggerheads. For instance, in a motor vehicle accident, modern law stipulates that the victim is compensated by way of insurance whereas customary law demands that the owner or driver pays compensation regardless of who is at fault.
In a rape case, modern law seeks to send the perpetrator to jail whereas customary law seeks to retain the perpetrator in the community and pay compensation or resolve the issue by imposing other customary sanctions.
In matrimony, modern law stipulates that a marriage is valid when you exchange vows and sign legally binding documents. These things are immaterial as far as customary law is concerned. It stipulates that marriage is valid and binding if there is payment of bride price or exchange of valuables witnessed by family and tribal members.
In terms of ownership of mineral and petroleum resources, modern law states that it is vested in the State whereas customary law says it is vested in traditional landowners. This is why our friends in Tari think they own the gas in their land, and so they can shut down the LNG project anytime they wish unless their demands are met.
I liken our two conflicting legal systems to a story I heard while growing up.
Two blind men planned to paddle a canoe to an island. Both of them got into the canoe with a paddle each. They thought they were facing the same way but were facing opposite directions.
One of them started paddling towards the island. After a while his arms grew tired. He asked his friend to paddle so he could rest. His blind friend, facing in the opposite direction, paddled the canoe back towards the shore. This routine went on day and night non-stop for two solid days until they were discovered and rescued by a fisherman.
The two legal regimes are those two blind men in the story. The boat is PNG and its people. The island is the national goals and directive principles enshrined in our Constitution. The rescuer is underlying law – a law developed by PNG courts using customary law and English common law.
One legal system is trying to lead us towards the accomplishment of our principles whereas the other the legal system is undoing good faith attempts by the former system.
I conclude that PNG’s legal foundation is in shambles and as such needs a complete revamp and overhaul as soon as possible.
Unless and until we get our legal foundation right, the advancement of this country to first or middle-income status will be delayed by half a century or more.
I believe the current legal system (mostly based on introduced English common law) must be completely reviewed with the aim of unifying the two conflicting systems into one comprehensive system which is consistent with the prevailing circumstances of this country.
Thanks and God bless PNG!