As the day of Independence approached twenty years ago there was much concern in certain circles about what to do about the existing law. For most people it was an alien system, brought by colonialists to serve their own ends. The Australian patrol officers, the Kiaps, who first brought order and attempted to subdue tribal fighting, papered over a complex traditional system. They were largely successful in resolving disputes peacefully albeit on a biannual round of mobile patrols to remote villages.
In the 1950’s the Australian administration attempted to codify the laws and make them apply to the whole population. They established a system of visiting foreign magistrates. From 1962 there was to be a single system of courts administering a single body of law. All work on village courts came to a stop and was not resumed until after Independence.
The first Papua New Guinean Minister of Justice, John Kaputin wrote: “Law only has legitimacy when it comes from the people and responds to their requirements. This truth by itself is enough to question the legitimacy of the Criminal Code. As Minister of Justice I am obliged to ensure that our country’s present laws are altered, and our future laws are framed, to fit our people and our society.”
The Constitutional Planning Committee agreed with him and brought custom into the legal system. Unfortunately the combination of customary and western law has often led to contradictions which has sometimes resulted in an apparent disregard for law and order and a bad reputation abroad. It is important to recognise that PNG is not a lawless society and that this reputation is undeserved by any measure.
In a country as huge and diverse as PNG there can be no common body of customary law. Traditional society was held together in a pattern of shifting allegiances, mechanisms and understanding of mores which varied from place to place. The only point in common was that it aimed to restore balance and order in the community. It was speedy. It often involved compensation. The accused had few rights. The difficulty now of maintaining law has to do with the speed with which the 700-odd separate independent ‘states’, each with its own customs and practices, have been welded together into a single modern ‘State’.