Tuesday, 18 April 2017

The conflict of two legal regimes - Melanesian Customary Law Vs Modern Law

by DAVID GONOL

Papua New Guinea was never in a legal vacuum when it was first colonised. All Papua New Guinean societies were well organised and effectively governed by Melanesian customary law. During the time when Melanesian customary law ruled, there were no formal police force, defence force, courts of law and prisons and nonetheless crime rates were very low comparing to the present time. 

The women were half naked but there were less or no rape cases. Similarly, there were less or no corruption, robbery, and violence except in tribal warfare. Please go back to your roots, exhume your history and, I guarantee, you will be utterly amazed at the way our societies were governed by Melanesian customary law.

Our colonial masters ignored the existence of Melanesian customary law and imposed their own law on us instead. Therefore, we now have two conflicting legal regimes – customary law and modern law – running parallel to govern the same issues at law. Therefore, in this article I wish to discuss the conflict that dominates the two regimes of law, which in turn impedes development of this nation.

All regimes of law in any jurisdiction should have one primary goal and that is to serve justice. In a general view, I don’t see this happening in our nation. It appears as if the two regimes of law are constantly at loggerheads with one another. For instance, in a motor vehicle accident, the modern law stipulates that the victim is compensated by way of insurance whereas customary law demands that the owner or driver of the vehicle pays compensation regardless of whether or not he/she is at fault. 

So the poor driver/owner assists the victim to claim insurance on the one hand and on the other hand pays compensation in excess of tens of thousands of Kina. Or in a rape case, the 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 outside of court by imposing other customary sanctions. Or in a matrimony, modern law stipulates that a marriage is valid when you exchange some vows and sign some legally binding documents, which things are immaterial as far as customary law is concerned. 

       On the contrary customary law stipulates that marriage is valid and binding if there is payment of bride price or exchange of valuables of some sort and is witnessed by family and tribe members. Or in terms of ownership of mineral and petroleum resources, the modern law states that the ownership of such resources is vested in the State whereas customary law states that the ownership is vested in the traditional landowners. This is the reason why our friends up in Tari think they own the gas in the land, and so they can shut down the LNG project anytime they wish unless their demands are met. These are but a few examples. 

Given this kind of legal backdrop, I can only liken our two conflicting legal systems to a story I heard while growing up. That is, 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 in the same direction but instead they were facing opposite directions. One of them started paddling the canoe into the sea towards the island. After a while his hands grew tired. Therefore, he asked his friend to help him paddle so that he could rest. His blind friend, who was facing in the opposite direction, paddled the canoe back towards the shore. This routine went on non-stop for two solid days (both day and night) until they were discovered and rescued by a lone fishermen. 

The two conflicting legal regimes are those two blind men in the above story. The boat is PNG and its people. The island is our National Goals and Directive Principles (NGDP) as enshrined in our Constitution. The lone rescuer is the 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 NGDP whereas the other the legal system is undoing the good faith attempts made by the former system. 

        Therefore, I conclude that PNG’s legal foundation is in shambles and as such needs 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 procrastinated by half a century or more. On this note, I recommend to this nation that a complete review must be done to the current legal system (which is mostly based on introduced English common law) with the aim to unify the two conflicting legal systems into one comprehensive system, which is consistent with the prevailing circumstances of this country. 

Thanks and God bless PNG!
  • The author is a lawyer, prolific author & Assistant Registrar of the National Court. The views expressed here are the author’s own and do not necessarily represent any individual or organisation. For comments email: marapapublications@gmail.com

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