Melanesian Law vs Western Law

Captions: 1. Villagers digging a drain for an airstrip in Ogerenang, Morobe district, in 1969. 2. Paul Oates. 3. Paul Oates as a young Australian kiap (patrol officer) at Pindiu, Morobe district, in 1970. 4. Paul Oates supervising construction of Ogerenang airstrip, Morobe district, in 1969. 5. Villagers building the Ogerenang aistrip in Finschhafen, Morobe district, in 1970.Pictures supplied by PAUL OATES.

My two recent Weekender articles in The National on April 27 regarding the violence in Wau, Morobe province, as well as John Fowke’s views on ‘The Melanesian Way’ have brought in mixed reaction from both Papua New Guinea and overseas.
Among those who wrote to me was Paul Oates, a kiap in PNG from 1969-1975, who served in out flung rural areas of Morobe district like Pindiu, Kabwum, Aseki, Wau, Sialum and Finschhafen before being transferred to Port Moresby.
He and his wife and I now run a small property in rural South Eastern Queensland where they breed stud Droughtmaster cattle and grow cabinet timber trees for the future.
“Like many kiaps and their families, I developed an affinity and empathy for Papua New Guinea and her people,” he wrote me.
“On my return to Australia in 1975, I found it very difficult to assimilate back into the Australian culture as did many others who worked in PNG.
“We paid the price of totally committing our time and effort to a highly-specialised vocation.
“Now with the opportunity to concentrate on matters other than fulltime work, I and many former kiaps, didimen, chalkies, etc,  would very much like to help PNG where possible and to educate our fellow Australians about our nearest neighbour.
“There is a move to try and foster more interest in PNG and some of us are trying to have the work of PNG kiaps recognised by the Australian government.
“If this move is successful, it will hopefully raise the profile of PNG in Australia.”
Mr Oates sent me his thoughts on now Melanesia Law and Western Law could co-exist and how selection exercises could be run without perceived bias.
“The laws of each country are based on a number of principles,” he says.
“In so-called Christian countries or those that have a history of Christian principles, there are some basic tenants of law derived from established precedents that have been laid down over many hundreds of years.
“English Common Law is established on this framework of previous decisions.
“Overlaid on this framework that goes back many centuries, are the laws that various Parliaments have then passed that refine these basic principles and establish rules and regulations under which a modern society regrettably needs to maintain cohesion.
“Sometimes laws are put into effect and then withdrawn when they are no longer required.
“Look at the previous law regarding playing cards in PNG.
“Now how does this square off against traditional Melanesian law?
“When I lived and worked in PNG some people would express to me their thoughts that everything about Western Society seemed to be right and everything about their traditional society appeared to be wrong.
“To this I would say, ‘Nogat tru!’
“There are many aspects of traditional Melanesian society that are, in my opinion, far better than the current precepts of so-called Western society.
“Take for instance how people in the villages look after widows and orphans.
“Look at the notion of family and the support for one's relatives.“Compare this to what happens in many Western countries and see how old people are treated and how the poor of each society are treated.
“Similarly, PNG was able to exist for thousands of years without a police force and traditional culture ensured traditional leaders maintained control over their communities.
“However, when the good aspects of Melanesian society are 'used' in a 'selective way' by those who are also immersed in a Western type culture, problems escalate out of control.
“Look at the 'wantok' system and how this can be used top 'bludge or sponge' off those who have paid work by those who haven't or couldn't be bothered finding it?
“So how can the two types of 'law' operate in practice?”
“So what's my suggestion?
Mr Oates suggested applying the type of legal environment that worked on Cocos Islands where traditional customs and culture that can be recognised in PNG, don’t conflict with enacted legislation
 “Now how does that fit with PNG at the moment?
“Not all that well I would suggest.
“Why?.... because there are two sets of rules and laws that are being hopelessly mixed up and where you have a mixture and therefore confusion, people are naturally liable to take and use whatever rule that affords them the maximum opportunity to do what they want.
“The same principle of human nature has been found to confuse and adversely affect some indigenous Australian communities.
“I can remember when indigenous Australians were not allowed to have alcohol because of the effects this had on their traditional lifestyle.
“This law was passed by those who thought they were doing the right thing but without reference to those to whom it applied as they didn't have the vote at that time.
“Fifty years later, with experience and now political power through being able to vote, the effects of alcohol are so disruptive to many traditional indigenous Australian communities that they themselves are now requesting and obtaining bans on it being brought into their community.
“So my suggestion is this.
“I've seen and experienced where traditional laws and western law can co-exist and work in harmony together.
“This situation was also not where traditional Christian laws were practised so that is an extra factor that could have created problems but it didn't.
“Partly however, this harmony was due to the effective size of the community where traditional customs were practiced.
“It was also due to the rigid maintenance of laws by the administration in an impartial way.
“Now here is where I offer some observations.
“Humans are by nature still at the Neolithic stage of personal development.
“That is, we are still cave men or women of the Cro Magnon level.
“Therefore, we are able to effectively manage human relations when a family group expands in number to a clan and even to a village.
“Once the size of a group of coexisting humans increases to more than the village size however, no one can control what happens within the community unless there are protocols and procedures that are made and enforced.
“At this point, a leader is either elected or takes control and a bureaucracy comes into existence and laws are made to keep control and to help satisfy the majority at the expense of the individual or minority.
“What is clear to me, given the world's very recent financial history, is that no one individual is either able to manage a country or to be on top of everything that can happen in our so called 'global village'.
“So what's my suggestion?
“Well... how about applying the type of legal environment that worked on Cocos Islands? That is traditional customs and culture that can be recognised in PNG where they don't conflict with enacted legislation.
“Where there is conflict, enacted legislation takes precedence, with the onus on the accused to defend their actions.
“How would this work?
“Well imagine where someone favoured a wantok and allowed him to break the law without being caught.
“Would there be a conflict of interest and for whom?
“Clearly, if there was a recognised hierarcy of laws, customary, traditional PNG law would have to take a back seat when enacted law must be followed.
“If the rules are well known and followed impartially and effectively, there is no conflict of interest.”