Friday, December 3, 2010

Development of Indigenous Jurisprudence

The government has done well as a responsible government in this year’s budgetary allocation in investing in the human resource capital of the country. The education sector received the highest budgetary allocation this year, which in itself is a political statement of the government’s medium term development policy. By allocating the highest funding to our education system the government has reinvested the earnings from the country’s natural resources and from the taxes it collects from its citizens.

The government has also considered the legal education of our people to be of utmost importance. Its budgetary allocation for the construction of a new law school at the University of Papua New Guinea is major investment in the education of our legal experts. With the construction of a new law school the government is well assured in producing a steady supply of graduates who can meet the expectations of the government and people of Papua New Guinea.

This new School of Law will need additional funding to increase its teaching staff capacity, attract practicing lawyers as adjunct lecturers to impart their knowledge and experience to law students, fund research and publications and develop a research library within the School of Law.

A major challenge for the government now is that it must invest in the development of law in Papua New Guinea. There are aspects of our law that need more development, elucidation, and refinement. For example, so far the development of customary law as part of the underlying law has not been a successful story. Our courts and lawyers rely on the common law in most of cases before the courts.

The Constitution itself is clear on the place of custom in the underlying law. Owen Jessep, a legal scholar describes custom as the “elusive” partner in the underlying law of PNG. No matter how slow it is for custom to have a fully developed role in the underlying law the future of an indigenous jurisprudence based on custom is a slow evolving process.

Owen Jessep (1998), among others, continues this observation: “In what is now almost a quarter of a century since Independence, there has been no shortage of complaints about the lack of progress in developing an “indigenous jurisprudence” (the expression used in s 21(1) of the Constitution), that is, the failure of custom to achieve its rightful place as a primary source of the underlying law.”

The trend has continued to the present day with more concerns raised by the judges and some lawyers. Finger pointing seems to suffuse and frustrate the efforts to develop indigenous jurisprudence.

“Some early criticisms focused on the apparent ignorance or laziness or antipathy of expatriate lawyers and judges towards custom, and the failure of Parliament to pass the legislation contemplated in Sch 2.1(3) of the Constitution.

Other analyses have referred to the quality and content of education given to Papua New Guinean lawyers, the assumed superiority of common law principles, and the reluctance of practising lawyers to look outside the confines of their common law training. In addition, technical problems of proving the existence of custom and the lack of any consistent judicial methodology in dealing with issues of custom have been highlighted.”

The then Chief Justice of PNG Amet CJ argued that the idea of an indigenous jurisprudence had become simply “meaningless rhetoric or cliché”, and that, instead, there still prevailed in the Papua New Guinea legal system “an umbilical cord of dependency upon principles of the Anglo-Australian common law and equity”. This sums up the position of judges in their view of the poor development of the underlying law based on customs.

In 1983 the Law Reform Commission of Papua New Guinea published a monograph on customary law in Papua New Guinea. “The Customary Law Development Project” according to the editor, Richard Scaglion, “was designed to provide the basis for developing a Papua New Guinean legal system based on Papua New Guinea values, customs, beliefs, perceptions and institutions. It was expected to gather customary law materials with a view to developing such materials along national policy lines and integrating any underlying principles discovered into a self-reliant and uniquely Melanesian national legal system.”

Developing an underlying law based on custom is a cumbersome process requiring more than a legal process to deal with it. The development of the underlying law based on custom is a constitutional direction. In the 1980s the Supreme Court came under criticism for failing to incorporate custom into the courts decisions following the Constitutional directions.

The Chief Justice shifted the blame to lack of time and resources: “In his 1983 National Court opinion in The State v Paul Pokolou, Sir Buri Kidu responded to the criticism by some legal practitioners that the Courts are failing to take custom into account and also failing to develop the underlying law as required by the Constitution. The Chief Justice placed the blame on the legal profession for failing to produce evidence or the material necessary for the judges to use to recognize custom. “Judges have not the time and resources to undertake their own researches in most cases and it is unfair for lawyers to expect too much from judges who are already overworked and under rewarded.”

The Chief Justice also criticized Parliament which “has failed to perform its duties as given to it by the Constitution.” Thus, he made it the responsibility of the legal profession to raise issues of custom and on the legislature to incorporate custom into the underlying law.”

One suggestion is to fund the research and publication of customary law in Papua New Guinea. Law students can return, if they wish, to their own communities to collect data on customary law, which can then be published and made available as evidence of customary law in Papua New Guinea. In the PNG Legal information from PacLII Database, customary law is missing. Maybe here’s where the funding of research of customary law will find its home and serve the need for the development of an indigenous jurisprudence.


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