Advertorial does not validate land reform

By PETER DONIGI
THE fact that Dr Thomas Webster of the National Research Institute spent about K5,000 in a paid advertorial in support of the government’s land reform does not make it a valid system at law.
He is best advised to seek a fresh legal opinion after reading my objection contained in this response, which is not new.
I raised these concerns in 2009 and last year and, to date, no one in government has effectively refuted my claims.
There is also a concern as to whether it is Webster’s role to defend a government policy when his mandate is to conduct research and to provide research material to government to assist in policy making.
If the advertorial borders on a political statement in support of the government, then I would suggest that he has acted beyond his authorised role and functions as stated in the objects of the NRI under the National Research Institute Act.
Having said that, let me restate my arguments that the land reform is a sham.
I have never stated that the provisions of the Land Act (sections 11 and 102) are illegal.
My concerns have always centred on the validity of the Incorporated Land Groups Act and the Land Registration (Customary Land)(Amendment) Act.
In so far as they provide an exclusive process for the issue and registration of incorporated land groups (ILGs), as registered title holders of special agricultural and/or business leases under section 102 of the Lands Act, then, I say, that is unconstitutional.
Any interpretation of a law that prohibits the use of any other schemes or plans that comply with the requirements of sections 11 and 102 of the Land Act would be unconstitutional because a law must facilitate or regulate a process.
A legislation that is drafted to regulate becomes unconstitutional if its implementation amounts to a prohibition.
There is no constitutional power to prohibit a right.
There is only a power to regulate and the constitution specifically states that a power to regulate does not include a power to prohibit.
That is why any arbitrary decision by the Department of Lands and Physical Planning to refuse to implement the Donigi Plan for registering customary land is unconstitutional in law.
The second issue is one of verification of land boundaries and demarcation between adjoining rights-holders.
That is an administrative matter that should be attended to by the implementing agency which is the Department of Lands and Physical Planning.
However, there is no independent mechanism in place within that department to verify the applicants and their land boundaries and this has contributed to abuse and corruption.
The third issue concerns the termination of customary law. At least Webster did state and agree in his advertorial that on registration of the ILG and the land, customary law ceases to apply.
This is the effect of the two laws I had mentioned. This is my greatest concern and I will concentrate my response on this issue.
The termination of customary law is the worst thing that could happen to PNG.
Customary law has sustained this country for thousands of years, before Europeans landed on our shores about 130 years ago.
What is so good about English law that we should give up our customary law in favour of it?
Can Webster tell us the values of the English law that our customary law is deficient in providing for our people?
The effect of these laws is to legalise the stealing of the rights of “users” of customary land and vesting “absolute” rights to a few who happen to be registered as owners of the  incorporated land groups.
There is no such thing as “owners” of land by customary law.
We are all users placed on our land by birth to use it wisely and to leave it for our future generations. Only the Creator is the owner of the land.
The legislation converts a few into absolute owners of land.
The legislation will create a landless class of people in PNG, creating and exacerbating poverty.
It happened in England thousands of years ago and it will happen here if we allow this nonsense to go forward.
This is the area that Webster and his institute should concentrate their studies on instead or telling us that the land reform is not a sham.
It would appear that the designers of the legislation have not read Schedule 2.2(2)(c) of the Constitution which says that English common law should not be adopted where it is “inconsistent with custom”.
Maybe they have read it and decided in their wisdom to turn a blind eye to it and, if so, they have failed to uphold a very important principle of constitutional law in this country.
The legislation they are promoting will substitute customary law with English legal principles concerning ownership of land.
English law recognises absolute rights of owners of land.
Customary law recognises “users” of land and these customary rights change all the time through marriages, peace settlements, etc.
The “mission creep” in this legislation is to do away with our customary law altogether.
PNG is not a homogenous society so the mission creep in these institutions, consultants and the (unsuspecting?) government is to create a homogenous society over a period of time through this process of terminating the application of customary law by legislation and the imposition of English law as to absolute ownership and use of customary land.
The end result will be a landless class of people and creation of poverty that we had never known in this land.
Oh yes, there will be many wealthy people around too!
So, we will convert our society where there is relative subsistence affluence to a society of dire poverty and bring to fruition what the Australian Broadcasting Corporation has recently called us when referring to Sir Michael Somare as the prime minister of the “impoverished” nation of PNG.
This mission creep towards poverty is against the spirit of the Constitution which requires us to preserve and protect our customary law.
We need not have one customary law for the whole of the nation.
We can develop a separate customary law for the 800 different tribes within this country.
However on the issue of ownership of resources and land, I have yet to find a different customary law. My experience tells me that we have a universal customary law as regards ownership and use of customary land in this country relative only to whether you are from a matrilineal or a patrilineal society.
The difference between the government’s land reform plan and the Donigi Plan for registering customary land is simply that the government’s reform terminates customary law whereas the Donigi Plan preserves and corporatises customary law.
In this regard, I have contended that the Donigi Plan is far superior, is legal and complies with the spirit of the Constitution.
The end game is that this country does not require the Incorporated Land Groups Act and the Land Registration (Customary Land) (Amendment) Act.
The term “mission creep” is applied in many fields.
It is happening in geological and geophysical environment as well as in human behaviour. It is applied also in law and government.
Knowledge of the end game is therefore paramount in any “good government” of the people, by the people, for the people.
In government, you cannot promote the interests of a few to over-ride the interests of the majority. That is the corner-stone of any functioning democracy.
In law and government, the paramountcy of the individual is provided for but it also comes with a heavy burden. There are many names for that.
Some call it human rights, others call it individual rights but constitutional lawyers call it constitutional rights because these rights are provided for in our Constitution.
This paramountcy is provided for in section 32 of the Constitution. But the obligations lie in the conditions that the individual cannot do anything that is against a law and he cannot do anything that interferes with the rights of others.
In the final analysis, respect for the law and respect for your neighbour overrides the exercise of your individual rights.
Failure to uphold the preconditions to the exercise of individual rights result in a lawless society and a return to the law of the jungle – all stepping stones to failure of democracy in this nation.
The process of getting to such failure with the resultant imposition of dictatorship or guided democracy is called “mission-creep” as well.
The most important thing to know is that knowledge is a two-edged sword and is such a powerful tool that it
must be honed in by experience and strong leadership in government.
A weak leadership allows for the will of a “few” to take control of government to govern for “the few”.
The people only get to exercise their real power once in every five years during national elections but do not benefit as the government is only serving the interests of a minority during the five years leading up to the next election.
In respect to the matter at hand, when a government begins to abdicate its responsibility to govern to the power of research institutions and consultants from institutions of higher learning or from abroad masquerading as advi­sers, it ceases to govern for the benefit of the nation.
It is evidence of the fact that it is lost and does not know how to discern the good from the bad advice.

*Peter Donigi is a lawyer and pre­sently consultant to a legal firm in Port Moresby. He has taught at the University of PNG and overseas. He also served as an ambassador for PNG.