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Legal Theory in Melanesia: Pluralism? Dualism? Pluralism Long Dualism?

Ian Fraser* 

 

Introduction: Where the Law has no Politics

This article has three themes, one of which was its inspiration: Why, exactly, is it difficult to teach Western legal theory, or jurisprudence, in a Melanesian context? In answering that, the other two emerge. Custom (or 'kastam') constitutes a peculiarly Melanesian legal pluralism; and, with the formal law, custom produces a peculiarly Melanesian legal dualism.1

In the Faculty of Law of the University of Papua New Guinea jurisprudence is taught at undergraduate level with a fairly orthodox orientation in the Western tradition. In 1998, the course was based on the law's supposed 'autonomy' from other social and political forces. This was intended to support a study of the most interesting schools of legal philosophy: legal positivism, Marxism, law and economics, legal realism, critical legal studies, feminism, deconstruction's heirs. These schools flowed from the doubts thinkers and movements have had about the law's remove from the attitudes and experience of ordinary life. Each does contain worthwhile points of view from which to study Papua New Guinea law.2 However, it is doubtful whether the edifice stands.

Generally, inspirational Western jurisprudence brings out the social alternatives to pure law, producing insights whatever one's conclusion as to the real degree of autonomy. Should the law be conceived of as part universal and part civil, the one ordained by God and the other a product of ephemeral human preferences? May legal norms only be evaluated as such in their own terms, so that a bad law may be a valid law? Does equality before the law commodify individuals just as the market commodifies their labour, both to the benefit of capital? Do judicial decisions merely rationalize already-predictable economically efficient outcomes? Is law anything at all more than politics, and administration, with robes on -- is it even meaningful to speak of rules or rights constraining choices? Suppose, however, that law was not seen as autonomous, independent, and distinct in the first place, and if, given the particular law, that that was quite reasonable. What if the only sort of law which, reasonably, seemed to be autonomous, independent, and distinct was Western law, the very sort of law in which these jurisprudents are labouring to make plain the politics? This seems to be the case in Papua New Guinea. The law/politics distinction, the kind of symbiosis (or 'relative autonomy') which founds Western jurisprudence, is pulled apart into one unproblematic distinction and one unproblematic identity. Law is distinct from politics, where 'law' term is the formal law. Law is an aspect of politics, where the 'law' term is custom. How this is maintained is the subject of this article.

The maintenance of this position is, it is suggested, a policy of Papua New Guinea's judiciary. In critiques of Papua New Guinea law, much has been made of its judiciary's supposed 'positivism'. The courts have been attacked for their adherence to foreign precedent, their unimaginative application of orthodox rules of statutory interpretation, and their refusal to 'integrate custom'. More generally, they have been accused of shying from a creative role in the new world of 'Melanesian jurisprudence' that the Independence Constitution clearly wrote for them in 1975.3 The critiques' logical contradiction emerges in that last clause.

The Constitution does indeed direct the courts to forge new law beyond colonial and foreign common law, and to do so imaginatively. With obsessive care it describes, first, how judge-made law is to be produced, and second, a set of rights and remedial powers novel to the common law. Applied as written, it could not help but invent law generally free of the inherited precedent.

A hierarchy of laws is laid out, in which the highest source of law, after the Constitution itself and legislation, is custom. The common law is adopted as subject to custom and, like custom, subject to a judicial evaluation of suitability to the country's needs. Where neither custom nor common law is applicable and appropriate, a jurisdiction to create new law is carefully described. From these three springs, an 'underlying law' is to flow through the National and Supreme Courts, as Papua New Guinea's own common law.4

To insist on all this, however, is to press a particular interpretation upon the criticised judiciary and to deplore a body of case law for infidelity to legislative text. It is to criticise the courts for not being positivist.

The courts are indeed positivist in some senses. The 'declaratory theory' of common law is taken seriously. The problem of English common-law rules which have been changed by English courts since Papua New Guinea's Independence, for instance, is dealt with by distinguishing between decisions that 'supersede' earlier ones and those that correct them. If the post-Independence decision holds that the earlier precedent was 'wrong', then that earlier one is not regarded as part of the law adopted by Papua New Guinea under Sch.2.2, however clearly it was the law in 1975.5 This approach buttresses a tendency to 'slavish adherence' to foreign precedent.6

More fundamentally, as Jean Zorn points out, in the work referred to above, only state law is taken to be true law. Indeed, for evidentiary purposes custom is not Papua New Guinea law at all; it must, like foreign law, be proved as a matter of fact. Moreover, in In re Michael Somare, the Supreme Court judgment entrenching this doctrine, Kidu CJ suggests that for adoption as 'underlying law' under Sch.2.2, custom must be proved to obtain in 'at least a majority of the nineteen Provinces'. Kapi J declares that, on points of general application, it must be 'common to all societies throughout the country'.7 The requirements of proof and quasi-universality have been accepted ever since, naturally rendering common law far more accessible than custom, to judges and even to counsel.

There is another, equally fundamental, sense of positivism. Not only should 'law' be restricted to the positive statements of law, but the judicial role should be restricted to the application of those statements of law. In the work mentioned, Zorn deplores the 'mechanistical' interpretative style used by the courts with the Constitution. However, no positivist, however mechanistic (or slavish), could read Schedule 2 to the Constitution as putting custom and common law on an equal footing. This is at least as imaginative as the US Supreme Court's invention of a right to abortion within the American right to liberty. Yet such is the general approach of the Papua New Guinea courts: the common law and custom 'exist side by side...the dual system'.8

It is fair to say the courts have not 'taken up the challenge' handed to them by the Constitution's drafters. They have sought certainty in the same fashion that judges in the positivist tradition would seek it, and with the same fixity. Yet in the Papua New Guinea legal context, to decry this is to decry judicial activism. The challenge the judges of Papua New Guinea have taken on is one they themselves set: to maintain a vision of the law free of political taint, including that of the particularly topical, controversial, and bold politics that, on a plain reading, imbues their constitutional mandate. They do not integrate custom into the introduced law. They do not formulate standards of substantive justice and balanced policy for Constitutional rights. They do little to develop a distinctive jurisprudence, Melanesian or otherwise, out of the Constitution's injunctions to do justice or out of their 'underlying law' jurisdiction. This is as true now as it was in the earlier years of an all-expatriate bench. The judiciary could not, of course, do any of these things without accepting the political face, and responsibility, that makes US Supreme Court decisions notoriously interesting, even with the legitimacy, unquestionable in positivist eyes, afforded by the Papua New Guinea Constitution's terms. Instead they manage a feat which is slipping out of the reach of their colonial models: an active role in the politics of their country which is not seen as 'political'.

 

Politics and the Formal Law

What enables this feat is that quality which the most penetrating critic of legal formalism has to concede as autonomous: the form of legal institutions. Even in Papua New Guinea's culture, rich in masks, judges' wigs make an effective disguise. The judicial system, the bar, and the form of legislation (including the Constitution) are all, of course, introduced to Papua New Guinean societies from common-law models. 'Introduced' is the usual term for these structures, and for the body of case law and principle associated with them.9 In this discussion the best term is 'formal', as the legal institutions of bar, bench, and legislation retain their identity, whatever the substance of the law they generate, and however they are used by other social actors and institutions.

This matters because of its contrast to the national political system, which is equally 'introduced'. The significance of the political system does depend upon its substance. What it produces, as law and as policy, does determine popular perceptions. The formal political system needs the participation of people from outside its bounds as a system, and they are not compelled to accept its terms. Nothing in the parliamentary system prevents voters from ignoring legislative proposals, or compels candidates to make them, or identifies Members of Parliament with political parties or the latter with policies. Nothing, indeed, requires the legislature to legislate. But without these thoroughly substantive features the political system is not recognisably the introduced one; and these features have faded in Papua New Guinea.

This is not the case with the courts. The legal system requires little participation from outside itself, and that participation can be admitted strictly on the system's terms. Indeed 'terms' is all the system need comprise. It is arguable, as a general proposition, that the common law is fundamentally formal, wherever it is found. But clearly, that appropriate form suffices to maintain the Papua New Guinean system's 'introduced' quality. This maintains a very convincing law/politics distinction. Litigation and lobbying in Papua New Guinea are not the isomorphs they appear in the countries to which they are indigenous.

Subjects of widespread and perennial social debate do not on that account emerge in the law, even to the extent that they do in formal politics. There is no case law on ethnic discrimination, and little on the status of women (none in an urban context). A decade of drastic internal security measures in Bougainville left little trace in law. Indeed the Constitution's rights generally remain almost wholly unexplored. The contentious subjects that do have a legal profile are political corruption, electoral misconduct, police abuse of power, and the punishment of criminals. They specifically concern the operation of the introduced systems as such, political and legal, as opposed to general social interactions and trends.

Much of this law/politics disjuncture is an inherited feature. The evolution of law in Papua New Guinea was channelled by the lack, distinctive on a world scale, of constitutional 'rights'-mandates within its institutional ancestors in England and Australia. But much results from post-Independence developments, much of which is a product of the judges.

In the Independent State, what is formally law has little organic connection to formal politics. Apart from the Constitution, Papua New Guinea's law is not generally a product of Papua New Guinea's political system. There is even very little of the obvious legislative link across the law/politics distinction, that is, 'legal' instruments created by 'political' legislatures. Legislation is overwhelmingly adopted colonial legislation, itself simply transferred from Australian statute books (notably including the Criminal Code). Case law innovation, when it occurs, is usually attributed by the courts, and seems genuinely due, to the inspiration of foreign example. The Constitution, although the occasion of elite debate and considerable popular consultation a generation ago, was never actually voted on in referendum or election. In a legal sense it was the Constitution that produced the current political system, not vice versa. Moreover, few people, perhaps 20%, speak the language in which all of this is written, fewer still can read it, and very few can find it to read. Its connections to current politics in popular imagination are necessarily limited simply by its most basic formal features: that it is written, and written in English.10

Papua New Guinea's judicial system does play an important role in national politics. It is integrated into political society notwithstanding the deus ex machina origin of most of the law it deals with. Generally, that role is not the review of Parliament's products. The courts rarely face the rhetorical challenge of disagreeing about policies on non-political grounds. Rather, the courts review the persons of politicians rather than their policies. Adjudicating disputed election results, ruling on points of parliamentary procedure, and hearing criminal or quasi-criminal charges against politicians and officials: these issues form the courts' main visible contact with the political system. These are eminently tasks for the law. They involve law at its most technical and aloof. Whether there was a valid quorum for a parliamentary vote of confidence in a newly appointed Prime Minister is an issue of a different sort from women's access to abortion, for example, or the funding of schools. Further, they clearly oppose introduced (exotic) standards of constitutional or criminal law to local and very political values.

The distinction runs straight down to local levels of politics. Disputes, whether among ordinary people or the elite, even when considered legal matters, are rarely brought to the superior courts, or, more to the point, to lawyers. However the introduced law influences the evolution of popular norms, it is not by trials in the courts or by the legal disposition of local issues. Instead, the introduced legal institution that is most prominent in village, settlement, and town life is the police. The courts are inevitably associated with the police, but this association is limited to a minimum by three features: the police routinely inflict coercive sanction without judicial involvement (to a great extent this is the role of the police in the community); the courts' own rulings dissociate themselves from that conduct;11 and trial-work concerns witness credibility and sentencing almost to the exclusion of norm-defining law.12

The element of the judicial system that is closest to local politics is the Village Court, a set of tribunals statutorily endowed with both customary law jurisdiction and some 'introduced' powers, and staffed by local notables rather than lawyers. Provision for Village Courts is made by the Constitution. They were intended to sustain custom by a unity of law and politics (and of law and morality, and so on). Although subject, by Supreme Court decision, to judicial review, their decisions are not subject to appeal to the formal system.

Village Courts quickly achieved prominence in village and even urban-settlement law, despite irregular and inadequate government funding. Their outstanding feature, especially as compared to the village assemblies they effectively replace, seems to be the introduction of the sanctions associated with the superior courts' law, rather than any conceptual hybrid of the two species of law.13 The Village Courts demonstrate how different 'courts' and 'law' are from the institutions and normative content of custom, even when explicitly directed to the service of custom.

The Faculty of Law at the University of Papua New Guinea does emphasise the Constitutional imperative, and the desirability, of combining the introduced and customary laws.14 But the message, in context, is not entirely coherent, meeting interference at several levels. First, within the University curriculum, stress on the impossibility of truly integrating custom 'in practice' seems to be hardening into the same sort of shibboleth as the impossibility of truly individualised justice in the common-law educational tradition. As students elsewhere learn that the need for 'certainty', regrettably, must compromise equity, students in Papua New Guinea learn that the 'inaccessibility' of custom must compromise the laudable goal of an indigenous legal system. This involves acceptance of the view that nineteenth-century Chancery cases are more accessible than customary norms. Due to the carefully tended isolation of the formal law, this is indeed so.

Second, the university environment of a student's life reproduces the same distinction as between current politics and the courts. The intellectual enterprise of library, classroom, and residence room is surrounded by a campus society in which political division is invariably ethnic, politics are confrontational and informal (despite the student union's elaborate formal structure), and the threat of violence, particularly for women, is pervasive.15 The introduced law's promise of an introduced stability, rationality, and discipline is seductive to the extent it remains distinct. The typical University of Papua New Guinea law student is only a law student, having come directly from high school; he or she studies exclusively that seductive promise.

Third, there is the anticipated professional environment. Papua New Guinean lawyers are generally the 'access to justice' of their wantoks in the villages, replacing the legal aid no government could afford.16 That justice is perceived as foreign.16A Australia remains the standard, not as Australia, or even as 'the West', but simply as quality. From the content of legal rules to the manner and amount of lawyers' billings, foreign practice is expertise.

The same, of course, could be said for a host of other 'introduced' activities (and with regard to many other countries small in their context).17 However, few other such activities embrace politics so closely. That hopes of custom's integration into law amongst academics and Constitutional drafters appear so readily as professional compromise is a deep feature of Papua New Guinea public life, and the corresponding fissure runs deep.

 

Politics and Customary Law

The point that law and politics, and law and morality, economics, and rhetoric are not disjoined in customary Melanesian orders needs no labouring. What does warrant emphasis here is a sociological aspect to this, and a legal-theoretical one. First, 'tradition' is a living social fact. Secondly, the particular qualities that most actively maintain the unity of legal and other ordering are the nature of authority and of entitlement.

The customary orders are still strong, even in elite, university minds, in normative assumptions and in actual social relations. The small-scale solidarity known as 'wantokism' (supporting one's relatives) is sincerely decried where it conflicts with the introduced norm of national-scale equality. Its practical value, however, under a government that provides neither social nor physical security, is unquestioned.18 It remains difficult to entertain the notion of sexual equality seriously, even as an intellectual exercise, except in the sense of the equal importance, to a group, of the different gender roles. The philosophical individualism of tort and criminal doctrine is strange both in the fault notions and in the measure of loss or harm as effects upon an individual; the critique of rights takes odd turns when the available 'property model' is communal. Perhaps most profoundly of all, the mission of law in any form, even overtly reformist legislation, is understood at a deep intuitive level to be social harmony. This operates with the nature of legal entitlement, whether to property or to immunity from harm, which is, notoriously, communal. It may be worth emphasising that this is not just a doctrinal proposition, a basis for calculating compensation or securing title. It is felt, again deeply intuitively. Every loss or wrong is a community's loss or wrong, whether the community be a family or a tribe of thousands of families. A death is not the loss of a life so much as the loss of a person — a woman worker, a man warrior, an 'elite' earner.

Yet the response is not so much to make good the loss in the sense of replacing it (the common law's indemnity). It is, more precisely, to assuage the community's reaction. 'Compensation' is the term universally used for the payments that an aggrieved group demands under custom, but this is a truly unhappy misnomer. It is easy to overlook how different making people happy is, as a principle, from giving them what they deserve.19 Every legal issue is thus literally a social issue — overtly, not implicitly or in the final analysis, political.

Likewise the mission of leadership generally, on all scales, is harmony. Leadership is the prevention of disputes. Neither law nor politics is about driving 'development'; they are about adjusting to it. For authority in the customary context is notoriously consensual. This should be understood without illusions about 'consensus'. This term, after all, opposes not just majority-decision but 'unanimity'.20 However, there is no masking the politics in a law whose primary sanction is not physical but psychological coercion, and whose physical sanctions are in any event inflicted not by specialists but by community members or leaders at large.

 

Politics: Adoption by Adaptation

If an 'activist-positivist' view characterises the introduced system, and custom's views unify all social control, the result in Papua New Guinea is not binocular vision. Rather, one takes one view or the other. If in discussing a legal issue in one context one raises the other, the response is either a shrug or a new discussion.21

In formal terms, this is manifest in the doctrine, apparently current in the Supreme Court, that Papua New Guinea has a 'dual' system of custom and common law.22 Only statutory law is mandatory and universal. In a sense this is a product of the introduced system's independence. The expertise it fosters is, precisely, in the manipulation of foreign concepts and institutions. This is reinforced by the active roles of literally foreign bodies. There remain three expatriate judges on the National/Supreme Court bench, and a number of public lawyers and much of the private bar are Australian, as individuals and as firms. The formal law has been 'introduced', but it is not quite one of the family.

The government as administration, on the other hand, is 'tambu'.23 No one recalls its 'introduction' except in the most abstract sense, yet it is as foreign as the courts in origin (and indeed includes many expatriate staff). It helps to look at exactly how the administration is foreign. Bernard Narakobi wrote of the modern state set up in Melanesia 'with gun and electric chair in one hand and pen in the other'.24 Narakobi rightly found a state monopoly of violence to be dramatically alien to traditional Melanesia. However, that monopoly has only ever been a concept; it certainly does not obtain now. Current government in Papua New Guinea is not a centralised, irresistible power of the sort that no-one on the islands could imagine before European contact, the sort of power, whether tyrannical or bureaucratic, that looms over every debate in Western jurisprudence. Papua New Guinea students in jurisprudence do not know such a threat, or ideal, from experience.

The nature of Papua New Guinea police power is not the discipline, resources, ubiquity, and surveillance connoted by the 'monopoly of force' concept. Police power is simply armed force. In the villages it is quite literally military: the police operate on the basis of roadblocks and punitive, illegal raids. The criminals they seek to suppress tend to operate on precisely the same basis, especially when the crime itself is military (tribal fighting). In this context, this coercive arm of the state is 'another gang'. It is more or less successful, at different times and places, but successful or not its manner of operation does not set it radically apart from non-state violence.25

What characterises the state as something alien in origin is its economic significance. The leader was once he who had garnered enough support, through gestures of generosity and demonstrations of spirit and by the appeal of the blood relative, and who was marked by the privilege of redistributing the people's produce to the people. Now he is the man who garners votes in much the old fashion, but whose distinctive privilege is to distribute wealth arriving from outside.

It is not always truly from outside: but whether aid from foreign governments and non-governmental organisations, proceeds of the sale of natural resources, or government credit ultimately based on those resources, it is wealth which as such was never in the people's hands. Income taxation is not a large part of government revenue in Papua New Guinea, and what there is consists of tax withheld from government employees. Until 1999 there was no national or large sales tax. The government's primary role is creator of wealth. It is neither the traditional leadership's funnel of existing wealth nor the taxation-with-representation of the Western tradition.

This appears to be why policy and legislation are unimportant in elections. Members of Parliament are not representatives in the Westminster sense, nor rulers in the state or even chiefly sense, but leaders in the Melanesian sense. Government is the executive, and its politics are mainly about the disbursement of funds, directly and by employment. This explains the indispensability of the 'Electoral Development Funds', money issued to Members of Parliament to be spent essentially at their discretion. In this respect Members of Parliament act as administrators rather than legislators. The strain of this substance against the forms of a parliamentary and bureaucratic system generates much of the formal law's treatment of politics.

The means of achieving the leadership of such an enterprise are not much different from those of the traditional system. Ensuring that supporters are provided for, getting votes in elections, and showing up at funerals is a long way from 'the law'.26 There is a legal element to this type of politics, but it is almost entirely customary. 'Showing up at funerals', for example, covers a considerable complex of obligations and protocol.

 

E Pluribus Duo

There is a Papua New Guinean pluralism. It is not the liberal pluralism lauded and derided by different currents of mainstream jurisprudence in the West; it is not the acceptance that society is made up of knots of people aware of their opposing interests and/or opinions. Papua New Guinean society is not that, at least in a comparably obvious way. Papua New Guinean pluralism is two things, corresponding to interest and opinion.

The first is a kind of class pluralism, the material side of wantokism. Those joined by class interests, in an objective sense, in fact direct their material means to co-operation with people of different, even opposing, class interests. 'Grassroots' do not simply look up to 'elites' with the deference remarked upon above; they also seek services. The elites indeed respond. Love, though relevant (and common), is not the point. The relationship partakes as much of insurance as of fellow feeling. Willing all-purpose helpers and an available village home, and sustenance, are assets to elite people in even the crassest sense.

The second is the universal rule of customary law, for there actually is one: custom's jurisdiction is personal. Enough serious differences of opinion, that is, differences whose consequences are incompatible norms of behaviour, can be characterised as contrasting customs, that no resolution is required.27 The norms will be observed in separate social contexts: different customs for different folks. This is facilitated by the country's division into nineteen provinces, which reflect ethnic distinctions about as precisely as is feasible.28

Unlike Western 'multiculturalism', there is no need to rub the edges off the awkward shapes, so that all fit into the one container of a general law of social conduct. There is no such general law. The law that is general does not attempt to guide conduct much beyond the Criminal Code, which prohibits acts that the common law of 1897 found intolerable. The law that does guide conduct in detail only applies to relationships within its custom.

On this pluralism the country bases a legal dualism, common law and custom 'side by side'. The model can only be the colonial system, providing separately for 'Europeans' and for 'natives', while permitting the latter access to the introduced regime, upon the use of Christian rites, the attainment of education, or legitimate urban employment.29 Just as the colonial system turned a blind eye to the prospect of independence, so now does the independent system avoid the grand issue of a coherent Melanesian law.

But one need not see an apartheid lurking in this dualism. Very few people are in a position to avail themselves of the common law, but most people have a wantok among those few. Given the material aspect of Papua New Guinean pluralism, this matters. Given the cultural aspect of Papua New Guinea's pluralism, the introduced legal system serves well as a formal law because of its carefully maintained foreign quality. Like the English language, whatever its clash with the general culture and situation of the country, it is neutral as among the various cultures within Papua New Guinea.

The jurisprudential tradition of the West, based upon a denied identity of law and politics, does not strike chords in Melanesia. The informal, or law-in-action, element of legal ordering is sufficiently formalised here, as custom, to be both law and politics. The introduced law, while remaining articulated closely enough to the well-rooted formal political system for survival, is sufficiently disjoined from society to be pure. In Tok Pisin, 'long' is the preposition. It means, among other things, 'of', 'from', and 'to'. It describes the relationship of this pluralism and this dualism.

 

 ENDNOTES

* Ian Fraser joined the School of Law of the University of the South Pacific in September 1999. He has been a lecturer at the University of Papua New Guinea Faculty of Law since 1997, a position he also held between 1990-92 before completing an LLM at Dalhousie University.

1. By 'Melanesian' it is meant to generalise from Papua New Guinea. This amounts to a limitation, but it is suggested that the generalisation is a plausible hypothesis, given the cultural and material variation within Papua New Guinea, and given the emphasis here on modern circumstance.

2. The theoretical framework is built from the heritage of 'jurisprudence' as understood in the (English-speaking) West, portrayed in a light that would permit useful comparison with both Melanesian customary law and with the laws and legal institutions of present-day Papua New Guinea. Variations on the theme were legal autonomy from morality, from economics, from politics, from rhetoric: This has been taken to be a golden thread running through modern jurisprudence, from Jeremy Bentham to Stanley Fish. Is the law truly distinct from these other forces and enterprises, as we both lay and professional so earnestly pretend it is, and how is it really related to them?

3. See Zorn, J, 'Common Law Jurisprudence and Customary Law', in James and Fraser (ed), Legal Issues in a Developing Society, 1992, University of Papua New Guinea: Papua New Guinea, 103.

4. This is detailed in Schedules to the Constitution, separated from the latter's body because the Constitution assigns the primary duty to create law, including a policy concerning custom's integration into the underlying law, to Parliament. In particular, the Schedules are to guide the courts until Parliament legislates on custom's integration: Constitution of the Independent State of Papua New Guinea, c.1, s.20(2). Parliament has taken no steps toward doing this.

By Sch.2.1, 'custom is adopted, and shall be applied and enforced, as part of the underlying law', subject to national legislation and to 'repugnancy to the general principles of humanity'. (The latter is the 'repugnancy test' carried over from the colonial Native Customs Recognition Act, itself adopted—without the term 'Native' —as Independent State legislation.) Sch.2.2 provides:

'the principles and rules that formed, immediately before Independence Day [16 September 1975],

the principles and rules [sic] of common law and equity in England are adopted, and shall be applied and enforced as part of the underlying law, except if, and to the extent that, [they are inconsistent with national legislation or inapplicable or inappropriate to the country or] in their application to any particular matter they are inconsistent with custom as adopted'.

Even on the sort of contrary reading requiring a definition of 'principle' (supplied in Sch.1.6), the priority of custom is clear enough. New law, for cases where 'there appears to be no rule of law that is applicable and appropriate', is to be made by the superior courts under Sch.2.3, which includes a set of acceptable sources. The bill of rights covers the usual broad topics, complete with a complex formula for evaluating legislation that entrenches upon them. Not stopping there, the Constitution makes these rights justiciable as between individuals, not just as claims against the state, and adds judicial discretion to suspend laws and block administrative actions in the name of 'justice', creating novel remedies as appropriate.

5. State v Pokia [1980] PNGLR 97: Kapi J, in the first year of his appointment as the first Papua New Guinea-born judge. (The quoted words are his.) As Kapi DCJ he reinforced this view, speaking for a Supreme Court majority, in Mount Kare Holdings and Dibusa v Akipe et al and Papua New Guinea [1992] PNGLR 60: what Sch.2.2 borrows are 'the pure principles of judge-made law'. In Mount Kare this preserved the torts of maintenance and champerty despite their abolition in England by the Criminal Law Act 1967. (The point is unaffected by the airiness of such debates—the House of Lords, subject to that Act, has used maintenance and champerty to precisely the same effect nonetheless: Giles v Thompson [1994]1 AC 142.)

6. The quoted term was introduced by the current Chief Justice, then Amet J, criticising Papua New Guinea case law in Kekedo v BP (PNG) Ltd [1988-1989] PNGLR 122.

7. [1981] PNGLR 265 at 272 and 288. Miles J, the other majority member, seems in agreement (see note below). Kapi and Miles JJ did point out that 'analogy with' custom is a permitted source of the Sch.2.3 power to invent underlying law, and that custom for this purpose would not be subject to the strictures applied under Sch.2.2 (at 292 and 304), but this has been ignored since, notably by Kapi himself in Madaha Resena v Papua New Guinea [1991] PNGLR 174.

8. Per Kapi DCJ in Madaha Resena v Papua New Guinea [1991] PNGLR 174 at 180. Thus plaintiffs, if they have recognisable (and provable) 'customs', may choose from two discrete sets of causes of actions and remedies. There is a subtlety: the common law is as adopted under Sch.2.2, filtered for inconsistencies with custom. Amet J opposed Kapi's view in this case, but the third judge on the Supreme Court bench, Los J, accepted the dual system for the time being, on the ground that the courts were not yet ready to decide such a momentous issue (the matter not yet being 'settled'). Los J's opinion (at 195) contains a recognition of the enormity of reading Sch.2 plainly.

9. The formally correct term is 'adopted'. An attractive alternative could be 'exotic', as in imported species of living things.

10. Cf. (of course) the Bible, widely available in Tok Pisin, and in a rapidly increasing number of indigenous languages. It is doubtful the 'autochthonous' Constitution could ever have been drafted in Tok Pisin, especially in the brief interval between the serious mooting of independence and its reality, but there is no technical reason why the government could not have issued a translation since. A missionary priest has done a Tok Pisin translation. I do not know of any attempt, even unofficial, to render the Criminal Code into Tok Pisin, let alone into any indigenous language—or into Hiri Motu, Papua New Guinea's third official language (the term, ironically enough, means 'police-Motu', a Papuan language as spoken in the colonial police).

11. There was a period of rulings excluding illegally obtained evidence from criminal trials, as a constitutional remedy (at least a dozen in the 1980s, compared to handfuls in the 1970s and 1990s). Most are unreported, but see State v Joseph Maino [1977] PNGLR 216 and State v Evertius and Kundi [1985] PNGLR 109). More recent times have seen a spate of civil suits obtaining damages from the state for police abuses of power (on a basis combining tort and constitutional right): see, e.g., Helen Jack v Karani and Papua New Guinea [1992] PNGLR 391 (execution) and Komaip Trading v Waugulo and Papua New Guinea [1995] PNGLR 165 (shop-burning).

12. It should be noted that Papua New Guinea's criminal law is based on the Griffith Criminal Code (shared by Queensland and Western Australia, except for the modifications made by the Australian jurisdictions; Papua New Guinea's Code has not been materially altered from the version introduced in 1902). The Code is a true 'code', covering all criminal doctrine, and every Code jurisdiction features rather less judicial re-invention of the wheel than the common-law criminal law jurisdictions.

13. The Village Courts are currently established by the Village Courts Act 1989. The refusal of the superior courts to hear appeals from them, thereby integrating them into the formal system, was fixed by a five-judge Supreme Court in SC Reference No.2 of 1989, Re the Village Courts Act [1988-89] PNGLR 491. Notably, there has been a trend to imprisonment in lieu of fine as a way of coercing obedience within marriages. See the series of National Court corrections, based on Constitution s.42(5) (corresponding to habeas corpus), of Village Court orders in the Mount Hagen region made by some of the first Village Courts: Re Kaka Ruk [1991] PNGLR 105 (failure to pay compensation to husband for adultery), Re Maip [1991] PNGLR 80 (failure to pay compensation to husband for marriage breakdown), Re Wagi Non [1991] PNGLR 84 (failure of adulterous husband's relatives to pay compensation).

14. Particularly in the earlier, more abstract courses: Introduction to Law, Constitutional Law, and Customary Law, all compulsory in first year. Custom may also receive considerable attention in Land Law, Torts, Family, and Jurisprudence (all compulsory), depending on the instructor.

15. The actual status of women highlights the distinction from the introduced norms. The writer has been assured by politically involved students, male and female, that students simply would not 'listen to' a woman leader. In four years of regular attendance at open student-union meetings the writer has only seen a woman speaking once or twice--apart from in relation to elections to positions reserved for women.

16. Villages are in the main subsistence economies; few villagers can pay a lawyer's regular fees. Currently, and for some years, the office of the Public Solicitor implements its legal aid Constitutional responsibility only for selected serious criminal charges, while the Law Society has abandoned its legal-aid program. It should be emphasised that anything like universal legal aid is not possible, whatever the intentions, under the existing system. More than three million Papua New Guineans live far from any town, in tenuous communication with the rest of the country.

16A. The seventy-five students in the writer's Jurisprudence class were never more intent than when hearing the suggestion that a reform of the legal system along the lines of (a plain reading of) the Constitution would likely result in an LLB no other jurisdiction's bar would recognise.

17, It would go beyond this paper to explore this, but one of the many ways Papua New Guinea is unique among the 'developing' countries is the social propinquity of the former colonial power. Independence simply had no effect on the intimacy of connections to Australia. Australian services and exports, boarding schools and universities, television broadcasts, investment opportunities, and professional associations all must needs be to hand, whatever Papua New Guinea's policies. They will always, for Papua New Guinea's elite, represent a familiar alternative to indigenous analogues. To date, this is reinforced by the state of transport within Papua New Guinea. Given the lack of highways from the capital Port Moresby and the service of the national air carrier, Cairns, Queensland is more accessible to someone in the capital than virtually any provincial centre over the inland mountains.

18. Intellectual attainment in Western fields does not negate this; wantok support is generally how students of village backgrounds are able to afford secondary education.

19. Such payments are not indemnification, but a transaction in the nature of a treaty. Quantum is set not by reference to losses of the 'plaintiff' but by reference to the restoration of good relations between the 'parties'. This difference in organising principle, quite apart from the procedural point that the payments are negotiated rather than adjudicated, vitiates the analogy with damages at common law.

The good analogy is with out-of-court settlements. What corresponds to litigation in this analogy, as the club that motivates negotiation, is the club: 'payback', or 'tribal fighting'. To distinguish this law in any sharp way from politics requires a Machiavellian conception of norm-free 'politics'.

20. There is a marked tradition of deference to authority in Papua New Guinea (even, I must add, by Canadian standards, and quite apart from relations with expatriates or students with university staff). The writing of many students from the heartland of classical anthropology's Melanesian egalitarianism emphasises how the word of the chief, or elders, is law. 'Egalitarianism' was always a crude rendition of Melanesian social attitudes. An improvement might be 'self-interested communalism'.

21. Multiple marriage is the commonest example. Bigamy is a crime: s.360 of the Criminal Code enacts the common-law offence. Polygamy, fairly common in many groups, is lawful: s.55(2) of the Marriage Act renders customary marriages valid for all legal purposes. There are decisions convicting for bigamy where the first marriage is a statutory (church) one, but there seems to have been no prosecution where the first marriage is customary. In State v Gugu [1981] PNGLR 5 Andrew J declared, obiter, that a second marriage during the life of the first, even if that first was by a custom recognising polygamy, would constitute bigamy, based on English authorities. He did mention doubts as to whether this is suitable for Papua New Guinea, and urged (in vain) legislative reform.

22. Madaha Resena v Papua New Guinea [1991] PNGLR 174. Although the Supreme Court has not returned to this issue since 1993, only one of the three judges in the case maintained this approach to be simply correct. Amet J's dissent was vehement.

23. Tambu: good friend, in Pisin; literally, in-law.

24. Narakobi, B, Lo Bilong Yumi Yet, 1989, Melanesian Institute: Papua New Guinea, 81.

25. The weakness of the police, of which this behaviour is a symptom, is usually attributed to the inadequacy of training, equipment, and facilities, as well, sometimes, as to the paramilitary traditions it inherited from colonial times. (Police force members, for instance, live in their own compounds or even barracks, rather than among the people they police.) Their sheer numbers, however, provide a sufficient explanation of their difficulties. Not augmented since Independence, the force counts some 5000 members. It is responsible for a population of nearly four million. (See Dinnen, S, 'Restorative Justice in Papua New Guinea' (1997) 25 IJSL 245 at 247.) Port Moresby, notoriously crime-ridden, has some 600 active police for a population of about 300,000, i.e. 200 on a given shift. It is difficult to believe that any government of Papua New Guinea, colonial or independent, meant police services to be delivered effectively to even a majority of the country's population or area.

26. Where parliaments are native, it must be noted, politics was once overwhelmingly like this too. Patronage was crucial to the rise of the great political parties in most Western democracies, a fault of most critiques of Papua New Guinea's political development (the term 'pork-barrelling' was coined in the US Congress). The difference from Papua New Guinea is in the importance of legislation and policies to the appeal of those parties; elsewhere they work out bills, not just appointments, over the pork-barrel. The amount of the EDF for each Member of Parliament in 1999 is K1.5 million (almost AUD900,000).

27. Cf. the way large 'EDFs' obviate the need to reach consensus in Parliament on how public money should be spent.

28. Formal student groups at University of Papua New Guinea sort themselves, roughly, by ethnicity, using home province as a label. The student union leadership consults the student body, on broad political issues like whether to 'strike', on the same basis.

29. See generally Fitzpatrick, P, 'Law and State in Papua New Guinea' (1980).


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