Taking customary law seriously: a case of legal re-ordering in Kieta

Abstract

This article outlines the legal arrangements in the Kieta District of Bougainville in relation to the sanctioning of wrongs. It is shown that the state recognises customary law, with its very different processes and sanctions, as a valid substitute for its own and how such arrangements developed. Importantly, this article provides an example of legal re-ordering where the state allows customary law the first opportunity to sanction a wrong, rather than attempting to incorporate substantive customary laws into the state criminal law as under state legal pluralism. It is shown that this approach is brought about through a change in the process and highlights the importance of the gatekeeper role between differing legal orders. It is also shown that this change in the process may ameliorate the more problematic interactions of customary law and state law in Melanesia.

Keywords:

• customary law
• payback
• compensation payments
• legal dissonance
• Papua New Guinea
• Autonomous Region of Bougainville

Acknowledgements

I am grateful to William Twining, Timothy Swanson, two anonymous referees, Greg Hemingway, Clare Hemingway, Kate Johnston Ata'ata and Marion Guidon. However, all errors remain my own. The fieldwork was made possible through the assistance of Fr John Cabrido SDB, Fr John Dixon SBD, and the Salesian Communities of Kokopo and Boroko and Henry Billy, Moses Banako and others (whose assistance cannot be overstated) who wished to remain anonymous. The financial assistance of the Commonwealth Scholarships Commission is gratefully acknowledged.

Notes

The State v. Mattau [2008] PGNC 269; N3865, 19 November 2008.

In colonial Vanuatu court assessors acted as flexible gatekeepers between customary and state law, and Forsyth (2009), while mainly concerned with recommending meta-processes such as constitutional conventions, advocates their reinstatement in relation to minor wrongs. Similarly, in colonial Papua New Guinea, this gatekeeper role was performed by the colonial Kiap and Dinnen and Braithwaite (2009) also call for their return, albeit in a modified form. Both the assessor and the Kiap effectively, and often outside of their state mandate, decided which cases would and would not be sent to the higher state courts.

Specifically, Damaska (1986) suggests that when these types are combined, civil law systems combine hierarchical and policy implementing types, whereas common law systems combine coordinate and conflict solving. In doing so he acknowledges that such conceptions and structures are ideal types and that in reality they are a blend.

These findings are part of a larger research project aimed at gaining a greater understanding of the sanctioning of grave wrongs in the New Guinea Islands and the interaction of customary law with the state law. The fieldwork for this wider project consisted of both a randomised structured survey and interviews with community leaders. In the spirit of Llewellyn (1962), the interviewees were asked how wrongs are normally sanctioned in their communities and how this might vary by the type of wrong and type of wrongdoer, and whether they could draw on specific cases. The findings presented here are based on interviews with approximately 40 customary and non-customary leaders, and interviews, discussions and survey responses from the general population. This account is primarily based on interviews with the customary leadership for two reasons. The first was brought about by the reluctance of randomly chosen potential respondents from the general population to be surveyed (with 4 only responses from 25 attempts). The second was the ability of my host, given his standing in the community, to arrange interviews with most of the customary and state leadership in the District.

See Braithwaite et al. (2010), Reilly (2008) and Standish (2001) for a detailed account of the Bougainville Crisis.

Legislation: Constitutional Amendment No 23 – Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum; Constitution of the Independent State of Papua New Guinea; Constitution of the Autonomous Region of Bougainville; Criminal Code Act 1974; Public Prosecutor (Office and Functions) Act 1977.

It should be noted that along with kinship and reciprocity, the concept of self-help is a cornerstone of customary law.

Under case law, customary motivations are also only a minor mitigating factor in sentencing; however, this was not mentioned.

Kumbamong v. The State [2008] PGSC 51; SC1017

Kovi v. The State [2005] PGSC 34; SC789

What customary law actually is and how ‘traditions’ are formed (through invention and reinvention) is complex a matter with many conceptual and factual controversies. Chanock (1998) and Demian (2003) have considered these issues with considerable insight. For discussion on this matter in relation to Bougainville, see Regan (2000) who suggests that many ‘traditional’ customs and leadership structures are relatively new. However, what is well documented is the longstanding use of reciprocity (compensation payments and retributive violence) to sanction and remedy wrongs in Bougainville (and across the whole of Melanesia), along with the importance of kinship obligations and processes to restore relations. There is an extensive literature on this topic (see Oliver 1973, 1991; Howley 2002; Trompf 1994; Nonggorr 1993).