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17 April 2017

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Dave's article is surely a thought provoking piece and I marvel at the enormous responses here. Thanks Dave and keep up the good work, countryman.

It can be noted that the “Customs Recognition Act of 1963” already acknowledged the importance of custom in legal matters.

And the PNG Constitution contains over 20 references to ‘custom’ or ‘customary’.

Furthermore Schedule 2.1.1 of the PNG Constitution states with regard to recognition of custom that “ 1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.”

In many ways the PNG Constitution is certainly seen to be encouraging the adoption of custom where useful and just. It is up to the PNG legal fraternity to implement this.

Well said, Ross, Phil, Paul and Chris. I agree.

One of the most important points that is missed in this and previous discussions on the operation of the law is the understanding that native customs existed and drove the way village people behaved and had to be considered at some point of the eventual legal determination.

Chris alluded to the knowledge and use of native custom by kiaps applying the law and Phil stated how the formal court system and native custom application were entwined when determining on cases involving nationals.

There was, however, legislation enacted and known as the Native Customs Recognition Ordinance that directed that this had to happen.

As young kiaps, part of our on-the-job learning was a requirement to sit in on court hearings to observe and learn.

Occasionally, we were thrown in at the deep end and instructed to prosecute criminal cases. We were told to read the old patrol reports and when on patrol, either with a senior officer or by ourselves, to listen to what the village elders told us and to ask questions.

At an appropriate time we were sent to Port Moresby to undertake advanced training in law, legal practice and other field requirements. On successful completion of the training, certification of competency by our ADC and then by our DC, we would be gazetted as magistrates.

Magistrates had to know that certain things existed before they could proceed with any hearing whether civil or criminal and these revolved around dealing with the various indigenous people of Papua New Guinea. These critical points included communication and customs.

Firstly, we had to ascertain that the participants were able to communicate in a common language with the Court, either with or without an interpreter.

This meant that the parties to the proceedings could communicate freely at the appropriate times and that they could understand what was going on in relation to any relevant laws. In particular, in criminal cases, a defendant had to know and understand what he/she had been charged with to properly plead to the charge.

This has been brought into relevance with a recent appeals case in Western Australian where an indigenous Australian has been released from conviction for manslaughter because he could only communicate in his local language and no interpreter had been provided for the original trial where he did not understand what he was pleading to.

Next we, as magistrates, had to know if there was a relevant local custom applicable to the facts of the case before us.

If so, then in a civil case the magistrate had to be strongly guided by the custom in his decision, but, in a criminal case, the magistrate only had to assess the impact that the existence of the custom had on the defendant when arriving at a decision based on the facts of the case. In other words, was it a mitigating factor?

The only relief that a magistrate had under the Native Customs Recognition Ordinance was to determine if an applicable custom existed, whether it was abhorrent or not. If abhorrent, the magistrate could determine on the facts alone and ignore the existence of the custom.

The attached link provides access to an enlightening paper prepared by John Greenwell that explains the Justice Department’s considerations for the extension of the courts into the villages to accommodate customary issues.
http://www.johngreenwell.id.au/papuanewguinea.html

Before Independence in 1975, the government responded to issues in the Courts system including a backlog of cases and a need to respond to village level matters by creating a Village Courts system.

The Village Courts Secretariat was established within the Department of Justice but was made up of a group of kiaps who were also magistrates under District Commissioner Ian Holmes. Ian subsequently retired and was replaced by national magistrate Andrew Maino.

Village Courts were sponsored by local councils who, once assessed and approved by the Secretariat for the establishment of courts in their areas, became responsible for the management of those courts.

The Councils would nominate appropriate village people to be trained as either Village Court Magistrates, Constables or Clerks. Secretariat officers would deliver training courses on the law as it applied to Village Courts (to a maximum penalty of 50 Kina), legal principles and legal practice. I spent two years in the Secretariat as a Training Officer.

However, to look at the examples you have given or alluded to, I will respond with examples of situations that occurred in my time in PNG involving customary situations.

You refer to marriage occurring when agreement is reached between the families and the bride price is exchanged.

I am aware of areas in PNG when this occurs when the young bride-to-be is only 13 years of age but early puberty makes her eligible for marriage.

Under the Native Customs Recognition Ordinance this arrangement would be considered abhorrent because of the age of the child and the fact that her mental age would not give her the capacity to have her consent legally recognised, if it was sought at all.

Two young village girls were “deflowered” by two young adult men of the village. It was alleged that custom of the area encouraged this activity. The men were convicted of unlawful sexual intercourse (rape) because the magistrate ruled that the acts were abhorrent. The girls were four years and six years of age. The parents of the girls congratulated the magistrate after the hearings. I was the magistrate.

It is all very well to suggest that traditional law and government law are incompatible but to suggest that the incompatibility is because of colonial law is a long bow to draw because your nation has been in existence as an independent nation for 42 years and has had the chance during that time to make its own laws that better reflect the integration of customary law.

If you remove moral responsibility from law, all that remains is technical administration - CS Lewis

David, with respect, yours is a view typical of many Papua New Guineans born shortly before or after independence.

This view has it that the colonial era in all its manifestations was somehow inherently bad and that Australia had some sort of devious plan to subvert everything traditional.

You should go talk to some of your elders who were around before 1975. They will tell you that the Australian administration bent over backwards to protect, enshrine and maintain traditional law and customs wherever possible.

There never were two sets of laws in PNG, customary and introduced. Instead they complemented each other into one comprehensive system, which still largely exists in PNG.

Refining this system is a fine thing but scrapping it and starting again is a kind of Utopian madness.

The sad thing about this particular debate is that when Chris and I are no longer around as eyewitnesses to tell it how it was, those who are just starting out on their factual road of discovery may well, for all the right reasons, take the wrong turn.

Mi gat belhevi lo displa olsem.

In this article, David Gonol proposes that the current PNG legal system must be completely reviewed to create one comprehensive system which is consistent with the prevailing circumstances in the country.

I have no view about the desirability or otherwise of such a review, nor do I disagree with David's stated objective. However, I believe that the reasons he offers to support his proposal are based upon a somewhat romanticised view of how things worked in pre-colonial times and a misunderstanding of what the colonial administration actually did to institute the rule of law as they understood it.

Firstly, David asserts that during the time Melanesian customary law applied, 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, he says, minimal rape, corruption, robbery and violence except where disputes or isolated savage acts triggered tribal warfare.

I think that the evidence compiled by the earliest colonial explorers of PNG does not support this assertion. On the contrary, the societies they found were unusually prone to violent disputes, with assault, theft and murder being relatively common events. Melanesian customary law was applied inconsistently and only when convenient, with the rule of thumb being that the powerful dominated the weak.

In short, pre-colonial Papua New Guineans were not living in some sort of Arcadian paradise. Rather, life without a consistent, codified and enforceable body of law frequently was, to quote Thomas Hobbes' famous aphorism, "solitary, poor, nasty, brutish and short".

David also states that the colonial masters ignored customary law and applied their own, so that PNG now has two conflicting legal regimes.

In fact, the British and Australian colonial administrators went to considerable lengths to reconcile customary law with the legal framework they were charged with introducing. So, for example, customary law in relation to land tenure was not merely recognised but actually embodied in the land tenure laws applying, firstly in the Territory of Papua and then in New Guinea. This made PNG's land tenure laws very different to those applying under the contemporary British law.

In relation to matrimony, a marriage recognised as valid under customary law was deemed to be valid in law, including polygamous marriages which were and remain illegal under British law. Similarly, inheritance rights under customary law were also recognised even when they conflicted with British common law.

The colonial magistrates enforcing the law were, in making their decisions, required to take into account the traditional customs and practices of the people coming before them. Thus, the penalties applied for various offences would, as far as reasonably possible, reflect the way in which such offences were handled through customary law.

As I understand it, many Patrol Officers, in their capacity as magistrates, often preferred to resolve disputes or fix penalties using customary law. They did so because this sometimes provided a more acceptable, just and enduring resolution to a dispute than was achievable under formal British law.

With respect to the ownership of mineral rights, there never was any customary law that explicitly covered this. However, I agree with David that it is implicit in customary law that ownership or control over a defined area of land necessarily included what lies under the land as well. Consequently, the modern law which confers ownership of resources like gas and minerals upon the State can be said to be in conflict with customary law.

So, while a review of the existing body of law in PNG may well be justified for various reasons, a lack of consistency between customary law and that inherited from the colonial era is probably not the most pressing one.

It is worth noting that British common law is a marvellously flexible thing. It is, as I understand it, readily susceptible to judicial interpretation according to new or changed circumstances. Thus, it is already possible for PNG's own judges to remake the common law to better reflect the country's traditional customs and practices if they deem this desirable and necessary.

David, your article raises some excellent discussion points. But I have both brickbats and bouquets for you.

The very essence of the Australian administration (as opposed to other regimes), was to complement traditional laws wherever it was possible to do so. That meant that at Independence, most traditional laws were still in place and were therefore not lost.

It is true that tribal warfare was outlawed and for good reason. It is true that murder and rape were outlawed although in many cases, murderers were judged by accepting local laws at the time had some relevance.

If Australia with nearly 100 years of control in some areas and far less in others, had extinguished local laws and customs PNG would at least be now a lot easier to govern. QED, that did not happen.

The classic example was in land ownership where western law was not introduced and that has left today's PNG with the quandary that you now refer to over the ownership and control of natural resources.

You are quite correct is drawing attention to the duopoly of legal concepts that still exist in PNG. The problem is seriously holding back PNG for moving forward and until someone can come up with an effective compromise, nothing much will change.

The compromise the Australian administration used was fair but firm control over what was considered important matters but to basically leave the operation of local laws to continue to operate wherever they didn't contravene the national laws.

The compilation of British Common Law took many hundreds of years of practice and operation and written evidence. In many cases, the basis of the law evolved over many centuries and incorporated the body of law that evolved with the nation.

To combine local PNG laws into a 'common law' would take a huge effort and who would determine which law from which region and which tribe would be followed? The PNG Parliament hasn't even started on that task.

So who will start the necessary and essential work? Maybe you have already begun?

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