By DAVID GONOL
PAPUA new Guinea is truly a unique country in the world. It is one of the most diverse countries in the world in terms of cultures and languages. I always unashamedly take huge pride in this beautiful and unique country.
America may be the world leader in military, China maybe the world leader in population, Japan maybe the world leader in engineering, Israel maybe the world leader in start-ups but PNG is the world leader in languages and cultures.
Traditional PNG was never in a legal vacuum when Europeans colonised this country.
PNG already had customary laws governing its affairs but colonisers ignored such laws and imposed their own laws on us.
Therefore, about 98 per cent of the legal principles governing our country have their origin in English common law. English common law could adequately address problems back in England but certainly not in PNG.
Our problems are unique and so a unique Melanesian jurisprudence can adequately deal with them. Our forefathers foresaw the weakness of English common law and duly made provisions in our Constitution for us to develop our own version of English common law which is commonly referred to as Underlying Law or indigenous jurisprudence.
The underlying law were to be developed from two primary sources viz customary law and English common law.
It is imperative that we develop the underlying law. We can never run out of ideas and legal principles to develop this unique Melanesian law because we have a huge bank of worthy customs at our disposal. Our worthy customs are like ores which we need to extract and refine them in our court rooms and then apply them to address our unique problems.
Take, for instance, landownership issues in PNG. English common law cannot adequately address landownership issues because English common law knows that only the Crown can own land and not traditional communities like ours in Melanesia. With this kind of unique cases you need a Melanesian law and not English common law to deal with.
English common law was not made for PNG; it was made for England.
However, it was adopted at Independence because we were not of age at the time to develop our own version of English common law. Now we have come of age. We are capable. We can develop our own indigenous jurisprudence which is suitable for the needs of our country.
Therefore, I strongly believe that underlying law is the way to go for this nation. Underlying law is a PNG made law.
I have been researching on the development of the underlying law for many years. My research has culminated in the publication of the first ever book on the Underlying Law titled “The Underlying Law of Papua New Guinea – An Inquiry into Adoption & Application of Customary Law.”
This book has just been published and is set to be launched soon. Copies are available at UPNG Bookshop.
- The writer is a lawyer, Assistant Registrar (National Court) & prolific author. He has written three books – and the latest being ‘The Underlying Law of Papua New Guinea – An Inquiry into Adoption & Application of Customary Law.’ The views expressed here are the author’s own and do not represent any individual or organisation. For comments email: [email protected]