By DAVID GONOL
SINCE the publication of my last article entitled In Pursuit of a Melanesian Jurisprudence in this paper, I have received many comments from people from all walks of life. Many of them requested to know more about customary law and modern law. Therefore, in this article I seek to explain, compare and contrast common law and customary law so that many of our people must be aware of the regimes of laws we have in this country.
Legally speaking, our society is a very unique and yet a complex society. It is in a constant legal quagmire as we have two regimes of law running parallel, competing to govern the same issues at law. On the one hand we have modern law which is founded on the principle of English common law and statutes and on the other hand we have customary law which is mostly unwritten and yet is commonly practiced in the communities throughout this country.
These two regimes of law are not compatible with one another. They have conflicting goals. They are always in constant strife for hegemony over each other.
However, modern law is in a privileged position because it is enforced by the State apparatus such as courts and police, but customary law is enforced by individual communities.
Modern law is individual oriented whereas customary law is community oriented. In a case of a crime, the modern law will mostly seek to penalize the perpetrator more than a family, clan, or tribe.
For instance, if a member of a particular family, clan or tribe commits a crime or tort, modern law will single out the perpetrator himself and impose the lawful penalty on him alone. The modern law will not demand that the perpetrator’s family, clan or tribe is penalized or goes to prison for the crime of the perpetrator. But the opposite is true with customary law.
In most cases, customary law seeks to penalize the family, clan or tribe of the perpetrator more than the perpetrator himself. Customary law views the crime of the perpetrator as a crime committed by the perpetrator’s family, clan or tribe and imposes the penalty as such. Under customary law it is the perpetrator’s family, clan or tribe who ultimately bears the penalty of the crime notwithstanding their innocence.
Further, customary law view of electorates and provinces is completely different from that of the modern law. The modern law views the nation, provinces and electorates as creatures of legislations but customary law views them as nothing more than big tribes. Therefore, customary law always seeks to punish electorates or provinces for the crime of their members individually or collectively. For instance, some years ago a Western Highlander bus crew killed a Morobean pastor. Not all the Western Highlanders in Lae including the owner of the bus were guilty. However, Morobeans mobilized and destroyed the properties of Western Highlanders. How do we justify this kind of behavior? Modern law would definitely brand this kind of behavior as a criminal act. Would customary law condemn this kind of behavior as well? In my view, it would not. I can see an element of customary law in that kind of behavior. Under customary law, when a member of a particular tribe commits a crime, the penalty falls on the tribe or clan rather than the perpetrator.
This customary law principle is so ingrained in the hearts of Melanesians that they even view electorates and provinces as big tribes that could be punished for the crimes of their members. When you talk about Morobe, customary law construes it to mean a name of a big tribe rather than a name of a province.
From the above brief discussion it is obvious that our society is in a serious legal quagmire due to the existence of two conflicting regimes of law i.e. modern law and customary law. What we now need is a new regime of law that is neutral and appreciates the two conflicting regimes.
That new regime is none other than the underlying law. The underlying law is developed from both customary law and English common law and as such it can be compatible with both. It can provide solid legal bedrock for the development of this unique and beautiful country. On this note, I recommend development of the underlying law to this nation.
God bless our efforts to develop the underlying law; God bless PNG.
By DAVID GONOL