"FOR THE BENEFIT OF NON-LAWYERS, I WISH TO EXPLAIN WHAT UNDERLYING LAW IS PLEASE BEAR WITH ME."
by DAVID GONOL
Underlying law is a body of law developed by the higher courts especially the National and Supreme Courts using worthy Melanesian customs and English common law. For instance, someone files a case in court. But the court finds that there is no rule of law applicable to deal with that particular case. The court cannot say to the parties, “There is no rule of law applicable in this case. Therefore, go back and deal with the case yourself.” No, the court cannot say this. The court must give a ruling on that case no matter what.
The Constitution charges the National and the Supreme Courts to develop new legal principles/rules using worthy Melanesian customs in order to deal with any case before them in which no rule of law is applicable. If customary law is not applicable, then the courts can adopt and apply English common law. However, if both customary law and English common law are not applicable, then the courts must formulate new rules using certain provisions in the Constitution. The new rules that are developed by the courts constitute the underlying law or indigenous jurisprudence. Therefore it is not wrong to say – underlying law is PNG Made law just as common law is England made law.
Believe it or not about 98% of the legal principles governing this nation at the moment have originated from England. Therefore, our legal system is a photocopy of English legal system. The present legal system which we have in this country was imposed on us by the colonial masters. The colonial masters did this ignorantly. They knew very well that PNG was not in a legal vacuum and yet imposed their law on us. Therefore, most of the common law principles are not compatible with Melanesian customary law. One good example is that common law stipulates that ownership of mineral and petroleum resources as well land is vested in the crown. This common law principle made its way into our Mining Act 1992 and Oil & Gas Act 1998. These two important legislations stipulate that ownership of mineral and petroleum resources are vested in the State. This, in my view, is contrary to Melanesian customary law.
I can only conclude that our legal system is in some serious quagmire. There are two regimes of law, competing to govern the same legal issues. For instance, take a look at the crime of murder. The modern law says that the culprit goes to jail for the crime whereas the customary law states that the culprit and his tribe pay compensation for the crime or pay-back is the solution. The idea of prison is not compatible with Melanesian customary law as there were no prisons in our culture. This is the reason why many criminals are paying compensation for their crimes and are still hiding away in the communities.
Therefore, this country needs a new legal system with a new body of law. I see underlying law as the solution. We can use the English common law as a stepping-stone to develop our own indigenous jurisprudence and a legal regime. The new legal system must be founded on the underlying law rather than common law. Common law may work good for England but not PNG. PNG is not England and England is not PNG. Our problems are unique. How can English common law adequately address our unique problems? Can English common law deal with bride price? Hehehe you don’t pay bride price in England. So you bring in a law that knows nothing about bride price to govern a nation which holds bride price in high regard. Will it govern successfully? My answer is a big NO. Please, just allow me to speak once more. In Melanesia we eat kaukau, taro and yam with pork, dog, caucus and flying fox meat and drink kulau. Whereas in England they eat cheese and bread; lamp and beef and drink milk. We speak TOK PLES whereas they speak English.
Oh, PNG we badly need a new body of law with a new legal system. My recommendation still remains and that is, underlying law. And to this course, I commit my legal life. I shall not go to sleep until I see over the horizons of Melanesia dawns a new day bearing fully developed Melanesian Jurisprudence.
God bless PNG and God bless Melanesian Jurisprudence.
Mr. David Gonol is the author of the recently published book on underlying law entitled “The Underlying Law of Papua New Guinea – An Inquiry into Adoption & Application of Customary Law.”