Criminal Justice in Papua New Guinea

Papua New Guinea is one of those nations known for its rich and strong traditional and cultural heritage. The richness of the Papua New Guinean race can be seen not only from the people’s daily activities but on their distinct practices and beliefs as embedded in their history and legal system. According to Dinnen (n. d. ), Papua New Guinea comprises the eastern half of the worlds’ second largest island, which is the New Guinea. It is a Melanesian country comprised of differentiated and fragmented communities. The country is largely underdeveloped (Banks, 2001).

It also comprises a number of islands to the east, which includes New Britain, New Ireland and Bougainville (Dinnen, n. d. ). Before the successive colonialism, the indigenous Papua New Guinean population is known to live a subsistence lifestyle. Their lives were simple with only concerns on how to survive each day. They relied on rudimentary agricultural techniques in order to survive. They lived in small communities or villages comprised of at least 200 persons to 300 persons living together in one or more villages or in separate and scattered hamlets and homesteads (Dinnen, n.

d. ). This is validated by the almost 800 different languages used in the Papua New Guinean region (Dinnen, n. d. ). This is about one-fourth of the number of languages in the world (Banks, 2001), which in turn also tests to the diversity of its culture (Dinnen, n. d. ). Moat of the colonial period is characterized by the absence of a discrete and formal criminal justice system. Instead, policing and judicial functions is only a section of the undifferentiated native administration. It is administered by only one person.

However, this form of administrative justice system was little by little abolished and replaced by a centralized criminal justice system under the Anglo-Australian tradition two decades before the Independence. In order to prepare for the independence, all enactments pursuant to the Queensland Criminal Code, along with the relevant amendments to it, were replaced by the Criminal Code Act of 1974, which among others created the Criminal Code of Papua New Guinea. Nevertheless, it can be observed that this new code differed so little compared to its predecessors (Dinnen, n. d. ).

“Although almost 100 years of colonial rule generated extensive change, the cultural traditions of Melanesian societies have proved remarkably resilient and continue to exert a major influence in the daily lives of most Papua New Guineans (Dinnen). The Western Tradition The word criminal justice was coined in the mid twentieth century in the United States. In the western tradition of criminal justice, it can be said that Beccaria’s popular treatises, entitled, “On Crimes and Punishments”, focused mainly on the administration of criminal justice and not on the causes of crime (Newman, Boulouskos, & Cohen, n.

d. ). Strictly speaking, Newman, Boulouskos and Cohen (n. d. ) believed that the criminal justice system is not at all a system because the criminal justice system do not provide for a clearly defined goals, but instead presents conflicting set of goals. The Western legal tradition, according to Berman (1983), “was born of a revolution and thereafter, during the course of many centuries, has been periodically interrupted and transformed by revolutions”.

In his book, Law and Revolution, Berman (1983) talked about this civilization known as the western civilization as it developed distinct institutions including legal institutions and legal systems that have been transmitted, through colonialism to other civilizations transmitted from generation to generation as it evolved into what we now know as the Western tradition (Berman, 1983). According to him, what we call western is a culture, a civilization that can be characterized in different ways because of its own diversity (Berman, 1983).

The Papua New Guinean Criminal Justice Tradition According to Dinnen (n. d. ), most of the Papua New Guinean population continues to live in rural villages with a justice system that remains to be strongly culturally and geographically distant. From this observation, one can really say that the lives of the indigenous Papua New Guineans were simple so that a complex criminal justice system like that of the Western criminal justice system may not be necessary because it will only destroy the peace and create confusion to the people.

Despite the Western influences, the traditional Papua New Guinean community remained anchored to their culture and tradition. This is evident even in their criminal justice administration and social administration. Dinnen (n. d. ) likewise noted how allegiance to the tribe, clans and sub-clans has remained strong than the concepts of citizenship, state and nationhood. This evident from the fact that collective responsibility continues to become a social fact in most communities while issues about individualized criminal responsibility under the new systems, has spurred violent reactions to the tribes (Dinnen, n.

d. ). This only means that unless the citizens of Papua New Guinea embrace the concept of individualized criminal responsibility, can western influences on the criminal justice tradition can be successfully incorporated to their tradition without creating unnecessary conflicts. As it is noted, collective responsibility is no longer applied under modern Western criminal tradition. To punish other people for acts punishable under the law and attributable to identifiable individuals will create injustice under the Western criminal justice system but not under the customary Papua New Guinean tradition.

Under the Papua New Guinean legal system, customary laws still have strong influence at the village level (Dinnen, n. d. ). This is one of the main reasons why western criminal tradition may not flourish in Papua New Guinea as specific customary laws may not be germane to the purpose of specific western criminal justice provisions. While modernization has caused relevant changes to the Papua New Guinean criminal justice system, the citizens cannot avoid the strong connection to their roots and customs as they brings to life the strict adherence to old-aged customs, beliefs and practices that transcend laws and aspects of the justice system.

In an article by McLeod (2003), he noted how Maxine Pitts argued that “the state’s capacity to engage in crime control is diminished by corrupt leadership”. Likewise, McLeod (2003) also noted how Pitts linked the “absence of leadership integrity in Papua New Guinea to citizen antipathy to the state”. With the rampant corruption in Papua New Guinea, it can be expected that crime control may have a hard time.

Thus, even more modern Western criminal justice principles, may not succeed to control crime in Papua New Guinea. First of all, the failure can be attributed to cultural differences. What worked for the Western people may not always prove effective for the people of Papua New Guinea. This is independent to the fact that the failure may also be caused by the corruption and improper criminal justice administration in Papua New Guinea. Specific administration customs in Papua New Guinea can even worsen the situation.

Because of the apparent inability to control crimes in Papua New Guinea, Pitts suggested that crime control at community level can be more effective than in state level (McLeod, 2003). This only means that because Western crime control principles best work in state levels, its inclusion will not always produced the desired results in terms of crime prevention and administration. Many authors, including Banks (2001) also believe that the incorporation of Western criminal justice tradition in Papua New Guinea may not be as beneficial because of apparent customary differences.

For example, in a comparison of court decisions about issues of rights of women in relation to some customs between Canada and Papua New Guinea revealed that while in Papua New Guinea, the courts do not acknowledge customs to be repugnant to the general principles of humanity; men in Canada argued for the application of customs in order to mitigate criminal responsibility. According to them, these customs “offer justification for specific conducts against women judged criminal under the positivist law” (Banks, 2001).

As a nation with its own culture, the intrusion from the Western people may not always be warmly welcomed. Thus, in his book, Crime Against Humanity: The Struggle for Global Justice, Robertson (2002), discussed how inhumanity is being tolerated in order to achieve peaceful international life. Taking the case of Papua New Guinea, the Western people believe that in order to achieve international peace, there should first be peace in every nation. In order to achieve peace and control crimes in Papua New Guinea, the western tradition should be applied.

This may not always be welcomed by the Papua New Guineans because it was never denied that a portion of the Western tradition tolerates inhumanity as against specific groups, which in turn the Papua New Guinean customs strongly protects. This conflict will never resolve the smooth co-existence of the Western and Papuan New Guinean customs in terms of criminal justice. Meanwhile, in Gewartz’s (1999) book entitled, Emerging Class in Papua New Guinea: The Telling of Difference, he explained how class inequalities in the contemporary Papua New Guinea. There is this conflict between the traditional and modernist Papua New Guinea.

Many Papua New Guineans tries to convince their countrymen that the modernist view is lacking in legitimate claims and significant resources (Gewertz, 1999). This has created conflict between Papua New Guinean instead of putting them together under one tradition. The modern Western tradition, therefore fails in bringing forth modernization among and all of Papua New Guinea as it even caused chaos and conflict among the unified though diverse Papua New Guinean population. Papua New Guinea is “composed of thousands of tribes, clans, and customs in totemic groupings spread across its land” (Sikani, 1996).

With its traditional communities and indigenous people alone, Papua New Guinean has already a diverse culture. When the Western social, political, economic and judicial systems have been introduced, the Papua New Guineans have been forced to live and accept a system unknown to them and apart from its culture and tradition (Sikani, 1996). In terms of the justice system, they have been forced to adhere to an “alien dispute resolution procedure and forced to accept imposed Western systems of sanctions, which overlaid and supplemented their customary dispute resolution procedures” (Sikani, 1996).

After the colonialism period, the Western legal system of sanctions has been imposed among Papua New Guineans wherein, Sikani (1996) believed that the “colonialists have overlooked traditional, unwritten customary systems”. However, despite the entry of Western systems, indigenous Papua New Guineans has remained close to their customs so that they have become dissatisfied with the Western criminal justice system comparing it to their customary practices (Sikani, 1996).

The indigenous population cannot adjust and seem to find logical explanation on the applicability and efficiency of the Western justice system especially if applied among the Papua New Guineans with unique and strong cultural and customary heritage. This resulted to the Papua New Guineans and others claiming dissatisfaction from the system, which according to them even worsened the law and order situation in the community.

They consider the creation of the various criminal justice institutions in accordance to the Western justice system to have failed in the law and order as it imposed tougher sanctions against habitual delinquents (Sikani, 1996). Instead of reforming the offenders, the sanctions served to punish and to unduly burden the criminals making reformation and retribution impossible with the system. According to Stern (2001), “to many commentators concerned with human rights and democracy, criminal justice policy around the world has taken a punitive and exclusionary direction and without concern to social policy implications”.

This is one of the views of the Papua New Guineans who oppose the efficiency of the Western criminal justice system. For example, by criticizing the tougher punishments, they believe that the concept of criminal justice system is negated by the Western way of treating the criminals. It neglects the fact that the criminal justice system, more than the strength of punishment, should be concerned with reforming the criminal so that he can be changed into a more productive member of the community once the sanction has been served.

In fact according to Sikani (1996), “this has caused many Papua New Guineans to lose faith in Western Criminal Justice because of its inability to deal with rising criminal activity. This feeling is evident in every community in the country”. The failure of the Western criminal justice system to convince the Papua New Guineans of its efficiency should not be considered to be innate in its system. As can be observed, the Western criminal justice system has proven records of efficient application in other cultures.

This only confirms that cultural differences are the main culprit why the Western criminal justice system cannot work on some of its colony as much as it does on others. In Papua New Guinea for example, the failure can be attributed to the fact that before the system came into the lives of the indigenous people of Papua New Guinea, they have long been comfortable with their procedures under their customs and traditions. The introduction of the Western criminal justice system is a big challenge to replace the strongly-rooted unwritten criminal justice system and customs.

In the western countries, we are indeed seeing trends that can be very disturbing for the observance of human rights and the health of democracy” (Stern, 2001). For example, in Australia, the prison population has increased to as much as 62 percent from the years 1988 to 1998 (Stern, 2001). The figures only show that there is increased criminality and the increased number of offenders behind bars could mean that many of them could be habitual offenders, which the system failed to reform so that after serving term in jail they again commit the same of more serious offenses that can be dangerous to the community.

In addition, the alarming increase in number of prisoners could mean the extent of harm and damage to the community brought about by this inefficient criminal justice system. If the Western criminal justice system cannot solve the problems of criminality and the deterioration of democracy in the Western countries, it may be difficult to expect how the Western tradition can solve to cure the problems of criminality and restore democracy in a fairly different culture set-up in Papua New Guinea.

According to Fraser (2003), one of the many ways that Papua New Guinea is unique among developing countries is the ‘social propinquity of the former colonial power”. “Independence simply had no effect on the intimacy of connections to Australia” (Fraser, 2003). Despite the colonialism and the independence, the Papua New Guinean people have already developed strong ties to its origins and to the culture it has developed with. While western influence has been strong, the Papua New Guinean way still persists to continue to make their lives comfortable.

If it be proven and should evidence be strong that the Western criminal justice system will only fail and cause more problems in the Papua New Guinean communities, its introduction should not be pushed. Papua New Guineans should not be forced to comply with rules and procedures they do not believe in and that which cannot provide and surpass the benefits they already derive from customary criminal justice system. References Banks, C. (2001). Women, Justice, and Custom: The Discourse of "Good Custom" and "Bad Custom" in Papua New Guinea and Canada [*]. 101. Retrieved January 5, 2008, from Questia database: http://www.

questia. com/PM. qst? a=o&d=5001027796 Berman, H. J. (1983). Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press. Retrieved January 5, 2008, from Questia database: http://www. questia. com/PM. qst? a=o&d=14796224 Dinnen, S. (n. d. ). World Fact Book of Criminal Justice Systems. Retrieved January 5, 2007, from http://www. ojp. usdoj. gov/bjs/pub/ascii/wfbcjpng. txt Fraser, I. (2003). Legal Theory in Melanesia: Pluralism? Dualism? Pluralism Long Dualism? Retrieved January 5, 2007, from http://www. vanuatu. usp. ac. fj/journal_splaw/articles/Fraser1.

htm Gewertz, D. B. , & Errington, F. K. (1999). Emerging Class in Papua New Guinea: The Telling of Difference. Cambridge, England: Cambridge University Press. Retrieved January 5, 2008, from Questia database: http://www. questia. com/PM. qst? a=o&d=105290517 Mcleod, A. (2003). Crime, Corruption & Capacity in Papua New Guinea. Pacific Affairs, 76(2), 325+. Retrieved January 5, 2008, from Questia database: http://www. questia. com/PM. qst? a=o&d=5002561302 Newman, G. , Bouloukos, A. , & Cohen, D. (n. d. ). World Fact Book of Criminal Justice Systems. Retrieved January 5, 2007, from http://www. ojp.

usdoj. gov/bjs/pub/ascii/wfbcjint. txt Robertson, G. (2002). Crimes Against Humanity: The Struggle for Global Justice, 2nd ed. , Penguin, London. Sikani, R. (1996). Dealing with Deviance in Contemporary Papua New Guinea Societies: the Choice of Sanctions in Village and Local Court Proceedings. Retrieved January 5, from http://eprints. infodiv. unimelb. edu. au/archive/00003903/ Stern, V. (2001). An Alternative Vision: Criminal Justice Developments in Non-Western Countries. Social Justice, 28(3), 88+. Retrieved January 5, 2008, from Questia database: http://www. questia. com/PM. qst? a=o&d=5000948604