Source: PNG Attitude – Words, ideas & issues
from the Australia – Papua New Guinea relationship
by David Gonol
THE IDEA OF THE UNDERLYING LAW is a constitutional idea. The Papua New Guinea Constitution and the Underlying Law Act provide for the development of underlying law or indigenous jurisprudence, which I call Melanesian Jurisprudence.
Underlying law or Melanesian Jurisprudence refers to that body of law which the PNG Constitution charges the National and Supreme Courts to develop using customary law and common law of England.
In other words we can say that it is a PNG-made law.
The situation today is that most of the legal principles governing PNG have been borrowed from England and Australia. As a matter of fact about 98% of our legal principles have their origin in England.
So the current legal system is almost a photocopy of English common law. That is good to some extent but most of our problems are Melanesian in nature, so English common law does not adequately address them.
Thus we desperately need a Melanesian law to deal with problems which are unique to us – an underlying law or Melanesian Jurisprudence.
Since we have yet to fully develop this underlying law which will reconcile customary laws and modern laws, at the moment we are maintaining two different legal systems running parallel to each other – our customary legal system and our modern legal system.
Customary Law vs. Modern Law
The customary system is administered by individual customary groups throughout the country whereas the modern system is administered by the courts.
Take for instance the crime of murder and how it is dealt with by the two different systems. Murder is a universal crime. You find it in civilized societies as well as uncivilized societies. In traditional Melanesian societies and modern Melanesian societies.
Traditional Melanesia had its own laws to punish those who committed such crimes. Foreigners ignored our traditional laws and went ahead and imposed their laws, which sometimes are not effective.
Melanesian customary law stipulates that, unless revenge is contemplated, we pay compensation to the relatives of the deceased and absolve the culprit of culpability and bring about communal harmony to society.
The modern criminal law stipulates that a death sentence or a term of years be imposed on the culprit.
Traditional law aims to bring about peace and harmony to the whole society but modern law seeks to punish.
Modern law is individual-oriented whereas customary law is community-oriented. Melanesian societies are communal societies. We live in tribes and our tribal and communal bond is so strong.
But we now live in a modern era in which modern laws are applicable. So you can see there are two different systems of laws with different goals running parallel whilst competing to deal with the same matter.
The doctrine of underlying law appreciates the two regimes but goes on to say that the courts should develop the principles of underlying law using custom and the common law of England.
Unlike all other legal principles applicable in the country which have foreign origin, underlying law principles are purely of Papua New Guinean origin. Our own National and Supreme Courts develop them. So it is right and fitting to say the underlying law is PNG-made.
If underlying law is PNG-made law, it can easily identify and address problems which are unique to Papua New Guinea. So we should do what we can to help develop our underlying law or Melanesian Jurisprudence in accordance with the Constitution and the Underlying Law Act.
Yes, PNG, we will not go to sleep until we see a new day dawn bearing Melanesian Jurisprudence over the horizon.
Please legal eagles, give us a hand in developing an indigenous Melanesian Jurisprudence suitable for the prevailing 21st Century Papua New Guinea. Our founding fathers charged us through the Constitution to develop our underlying law and we should not continue to fail them and our Constitution.