Incorporating Custom Law into State Law in Melanesia1
In 1993 I was working with an NGO in Port Moresby training squatter settlers in conflict Resolution skills. I was invited to Bougainville in 1994 during the Civil war to conduct similar training there. The civil war in Bougainville had put an end to any formal law and justice process. There were no police or courts. The Bougainville Revolutionary Army ran their portion of the country with an ad hoc rule of murder, violence, and torture against the opposition and the civilian population. The Papua New Guinea Army and Bougainville Resistance acted in a similar manner in fighting the Revolutionary Army.
To solve their problem the common people returned to custom law, to maintain their quality of life. This was not easy. The power of the chiefs to administer custom law had been officially forbidden by the Colonial government for almost a hundred years. But there were few magistrates and patrol officers and the needs for mediation and reconciliation were urgent. So unofficially, the leaders of the people continued their role in a diminishing and abbreviated fashion.
Taim Bilong Timbuna (The times of the ancestors)
In the past, the Colonial government believed that custom law was no more than the law of payback: an eye for an eye and a tooth for a tooth. This was incorrect. In the small village communities in Bougainville, the largest of which may have some eighty families, feuding and killing of neighbours were not options. Any feud that used payback killing as a way of achieving justice fractured the community and killed off some of the most powerful defenders of the village. Enemy villages from over the mountain soon saw an opportunity, attacked the village and it disappeared forever.
The law of Social Contract
Melanesians, as hunter-gatherers and later in settled villages, developed a social contract: Do not kill, steal, lie, commit adultery, rape or gossip. They followed the contract, not because they were good and virtuous, but because they knew that if they did not, they did not survive. Survival as the bottom line was the measure of all cultural behaviours. Life for the villager was usually good but it was not a "garden of Eden". Three things were a major threat to the "gutpela sindaun" These were the danger of raids from enemy villages, the threat of sorcerers, and powerful greedy leaders who considered themselves above the law.
Custom law was developed to administer the social contract and the customs of the people. It is important to know that it was administered by the leaders of villages with only about eighty families. Leaders had many social obligations to others in the village and they may have been inclined to favour them in decision-making. However, the smallness of the village and the possibilities of sanctions ranging from sorcery to exile constrained them and kept them reasonably honest.
The overriding philosophy of all Melanesian custom law was to bring peace, mend broken relationships, provide satisfaction for all stake holders and so get on with life.
Custom law was made up of four connected processes. For convenience, I will call those by names that everyone will recognise but at the same time warn the reader that without explanation, the names may be misleading. The four processes of custom law are Consensus, Reconciliation Mediation and Restorative justice.
Consensus is one of the survivors in Melanesian society of custom law. Even today it is still alive and well. In the villages people gather to speak about anything that brings harm to the community. Common conflicts are gossip, sorcery, failure of fishing, a garden blight or immoral behaviour. When custom law was used, talk to solve a problem went on for as long as required: days, weeks, months or longer. Often the other three processes of custom law were called on to help produce a settlement. But even decisions were open-ended and could always be called back for further talk.
Reconciliation was used to deal with violent episodes within extended families, clans, villages, and between tribes. The first step was to suspend fighting permanently so that people could get on with their lives. At this stage there was no confession of guilt for wrongs done. Instead there was a meeting of all stake holders who exchanged native wealth, food and pigs. Many lengthy speeches provided guarantees of an end to hostilities and peace for all to move freely.
In Bougainville, reconciliation was the main instrument for ending the civil war. During the nineties, hundreds of reconciliations took place throughout the island to bring peace to the damaged communities. They were often repeated after intervals of one, two or five years to confirm the treaty. At these, there could be confession of guilt and a promise of restitution to bereaved families.
Melanesian mediation had the same general philosophical aim as reconciliation: to mend broken relationships and bring peace to the community. Although it is said that Melanesians did not differentiate between civil and criminal offences, in fact mediation was used for civil matters such as land disputes, and any property disputes; restorative justice was for criminal matters
Melanesians recognised that complete redress for crime was not possible, so custom law provided a ritual punishment to replace the feud and payback killing. It included the extended families of victim and offender and the community. The offender was called on to accept the shame of his behaviour and offer an apology and restitution to the family of the victim. The family of the victim and the community faced the offender with the harm he had done to the victim and set the amount of the restitution in native wealth. After this they accepted the apology and the families organised a ceremony of forgiveness and reconciliation at which the offender was restored to the community.
The psychological impact of telling the offender about the suffering they had experienced cleansed much of the trauma suffered by the victim. The expression of shame, apology, restitution and forgiveness provided the offender with a lasting readiness to reform his conduct.
Custom Law Eroded by the Colonial Administrations.
One hundred years of colonial government and western cultural ways have caused great damage to custom and almost extinguished the knowledge custom law. Very few village magistrates know the processes of custom law, and this vague memory is easily perverted by fear, self interest, public pressure, human respect, shame or coercion by some Bigman with his own agenda. When this happens the media get the story, tell it to the world and our village courts are shamed and disgraced.
What is needed?
Village courts handle an estimated 80% of all the crime in PNG. They are accepted by the village people because they provide a quick, understandable, reliable, service that is generally fair and free of archaic court jargon.
Training in custom law is an urgent priority. There have been failures and mistakes due to ignorance and "smart" youths are trying the strength of the magistrates with their "superior knowledge". Also there have been instances of people bringing their own lawyers into the court to demand the law of the courts. The village courts which uphold the rule of law for Papua New Guinea need the essential training to do their work.
All village magistrates need to be trained in the processes of custom law (consensus, reconciliation, mediation and restorative justice). This is not an impossible task because training is available at both Divine Word University and Peace Foundation Melanesia.
A final word
A recent village court forum placed great stress on the administration side of the courts and this is important. However, in the effort the have an efficiently run court system it must always be remembered that outcomes are the most important part. The village courts must always be judged by the justice that they provide not the efficiency of the administrative processes. Are the courts honest and free of corruption? Are women and children treated with respect and justice? Are the courts free from interference from Bigmen and politicians? Are the magistrates themselves men and women free of serious fault? Do the magistrates use mediation and restorative justice or work their own understanding of custom?
Donors seem to be willing to put large sums of money into administration but less into training of magistrates. These measures of the worth of the courts are most important. Our people will not thank us if the courts are efficiently run but fail to dispense justice.
1 This is drawn from a paper presented as part of the International Diploma in Restorative Justice at Queens University, 10 July 2007. The full paper, with references and a bibliography, is available on RJ Online.