eJournal of the Australian Association for the Advancement of Pacific Studies
Issues 1.2 and 2.1, April 2010
PROFESSOR EMERITA, FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF LAW
CITY UNIVERSITY OF NEW YORK SCHOOL OF LAW
UNIVERSITY OF PAPUA NEW GUINEA FACULTY OF LAW
THE AUSTRALIAN NATIONAL UNIVERSITY
Bernard Narokobi, who died in March at the age of 72, after a short illness, was a political and jurisprudential philosopher of great seriousness and stature. That makes my memories of his irrepressible irreverence especially sweet. One such memory: Bernard taking his afternoon nap on the wall to wall carpeting of the Law Reform Commission’s way too elegant offices. The Commission was Bernard’s brainchild, established at independence by Papua New Guinea’s Constitution – a document full of Bernard’s views and ideas – to try to infuse the legal system of the new nation with Melanesian custom. Bernard, fittingly, was the Commission’s first Secretary, and he hired me, amongst more experienced others, like Nick O’Neill and Yash Ghai, to help him do it. The new government was scrambling for offices; Waigani was still less than half built, so we found ourselves in a spanking new building that had been intended to house a bank (of all the non-Melanesian institutions!) with floor-to-ceiling tinted windows, air conditioning that bordered on the frigid, and pile carpet so deep you could, as Bernard contentedly demonstrated every afternoon, sleep on it.
Bernard was born in 1937 in Wautogik Village in the East Sepik. Naming his village – making sure this memorial to him includes the name – would have been important to him. Because Bernard never forgot, never abandoned, never strayed far, from the values and culture and world view of his village. And, yet, he was also among Papua New Guinea’s most modern of men. He was educated – in Catholic mission schools – long before most Papua New Guinean children got any schooling at all, well before, I believe, the Australian colonial power had constructed a single school in the territory. In the 1960s, when few Papua New Guineans had been outside their home villages, let alone outside Papua New Guinea, he was in Australia, doing a law degree at the University of Sydney. Within four or five years after Bernard got his degree, the University of Papua New Guinea would be built, opening higher education to hundreds every year. But, at the moment Bernard did it, there can’t have been more than half a dozen Papua New Guineans who had graduated from university. Mekere Morauta, Charles Lepani, Bernard, a handful of others. They had such different personalities, temperaments, interests, but they shared a vision of an independent Papua New Guinea, and the leadership that each took in that struggle suggested that, in denying education to so many for so long, the colonizers had made a wisely self-interested choice.
I first met Bernard in the early 1970s, just before independence. It was a heady time. Papua New Guinea was charging towards nationhood, and every great future seemed possible. We'd come from all over – from Tanzania, Northern Ireland, England, the U.S., even a few from Oz, and, of course, from PNG itself. Most of us were working at UPNG, but there were also advisors and worker bees from all across the government, not to mention from the various research units and NGOs. There were meetings every moment – it felt as if there was so much work to do – especially, so many conversations to have – about principles and policies and philosophy and goals and history. And then there were those grand day-long parties every Sunday at the Zaharas.
In all the conversations, all the explorations, Bernard’s voice was sure and direct. He knew, from the start, the path that Papua New Guinea should follow. The polity, the economy, the culture, and especially the laws of the new nation should be based, he told us, on custom – but on a peaceful, communitarian, Gandhi-Nyerere-King brand of custom that, he insisted, was the true Sepik Melanesian Way. It made of his life a paradox. He believed that each person should live a simple village life, but, to make that possible for others, for his new nation, he had to spend most of his time living in the city, dealing in complexity. Even in the city, though, he could make the village paramount. Padding happily around his carpeted office in laplap and bare feet was only one of the ways.
Today, people probably think that for him, the decision to live the Melanesian Way was an easy choice. Trust me. It wasn't. There were enormously strong pulls on him to go in other directions – and I'm not talking about the pulls of money or status or stuff like that – totally uninteresting to Bernard – I'm talking about personal pulls and pressures – glimpses of other, possible, wonderful, fulfilling, rich, happy lives, that he chose not to take, but the renunciation was not without sadness and a sense of loss. I will remember his smile, which was as outwardly mild and as inwardly complicated as he was.
When the Constitution was promulgated, we were able, for a few brief shining moments, to believe that we’d made Bernard’s vision a reality, that we’d won, that Papua New Guinea was firmly set on a path that would give its own custom the central place in the polity. After almost 100 years of colonialism, Papua New Guinea would become not only free, but, once again, itself. And that self would be a shining, beneficent, kindly star to the rest of the world. Bernard had been more than just a member of the Constitutional Planning Committee; his influence can be seen throughout, most dramatically in every word of the Preamble to the Constitution:
- united in one nation
- pay homage to the memory of our ancestors—the source of our strength and origin of our combined heritage
- acknowledge the worthy customs and traditional wisdoms of our people—which have come down to us from generation to generation
- pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.
By authority of our inherent right as ancient, free and independent peoples …
The courts set about almost immediately to undermine whatever in the Constitution wasn’t exactly like the laws of Australia, demonstrating in the process that they had a far less sanguine view of custom than Bernard did. For example, Bernard often talked about the ‘worthy custom’ of his people; for him, all the traditions, beliefs, values that made up the Melanesian Way were worthy, and he wanted to emphasise that, to make people see and acknowledge that. The members of the Supreme Court, however, chose to read the phrase differently; they read the Preamble to mean that they needed to acknowledge only those customs that happened, in their estimation, to be worthy, and, believing as they did that most of Papua New Guinean custom was savage, undisciplined, unreasonable, lawless and in need of a good old colonial makeover, they were happy to acknowledge very few of them indeed.
Bernard’s response was to redouble his (which also meant our) efforts at the Law Reform Commission. Under his benign tutelage, we worked hard to change every aspect of the imported colonial legal system so that custom would be the heart and soul of Papua New Guinean law. I've always thought his real legacy is all those Law Reform Commission Reports and bits of draft legislation – outlining such a better legal future than PNG got to have. So few of those bills were even enacted, and even fewer have actually been enforced. His crowning achievement – the bill that would have made it clear that judges should turn to custom, before using the common law or any other imported bits of foreign legal systems – languished in Parliament until 2000, when Bernard, as Speaker, finally got it through – only to see the judges all but totally ignore it in the following decade.
Bernard ought to have spent his working life as a judge. It would have given him the opportunity he needed to thoroughly blend custom into the legal system. He got his chance in the early 1980s when he was made an Acting Judge, and he went at it with gusto, writing decisions that were glorious. They were stunning in the depth and breadth of their erudition; he probably knew more about, and better understood the Anglo-Australian jurisprudential tradition than anyone else – with the possible exception of Mari Kapi – on the Papua New Guinea bench at the time (and most of them were Australians). At the same time, his decisions were illuminated by his love for the people whose cases he was deciding: witch or warrior, criminal or victim, his compassion for all of them informed every choice he made, resulting not just in decisions that were extraordinary in their fairness and equity, but also in containing lovely patches of utterly beautiful descriptive prose. Most importantly for his larger aims, though, he modelled in his decisions how a judge can understand Melanesian custom as a living part of the legal system, and how the court can weave it into a new, homegrown Papua New Guinean common law.
I believe that Bernard knew that his decisions were likely to be appealed, and so, in each one, he tried to speak to his fellow judges, to educate them about custom from the inside. He wrote about custom as if it were dream and magic which, as he tried to explain to his fellow judges, it was. He aimed to be helpful, but the other judges reacted as if he’d handed them a cupful of scorpions. Just about every decision he wrote was overturned, and never mildly. In their appellate rejoinders, the other judges didn’t just disagree with him, they mocked his reliance on custom, expressed horror at his introduction of customary concepts, such as compensation, into their legal system, and tried in every way they could to ensure that Bernard’s way, the Melanesian Way, would never find a home in Papua New Guinea’s underlying law, that no other young hopeful Acting Judge would have the temerity to try it. Today, Bernard’s brief tenure as a judge is all but forgotten. I expect, though, that future generations will come upon his decisions, and will be charmed, and emboldened, and educated by them; I hope, fervently, that, as with many great works unsung at the time, they will eventually be widely read, lauded, copied, that what he said about the law, and how he said it, will someday become the cornerstone of a new and glorious era in Papua New Guinean jurisprudence.
It is possible to see Bernard’s life as a failure, because, in what he most wanted to do, which was to make Papua New Guinea truly itself, truly noble, and truly free of outside influences, he was rebuffed at every turn. He tried doing it as a legal reformer, a lawyer and a judge – and that failed. He turned to politics – where he was granted much personal success – he served as a Minister in three different governments, under three different Prime Ministers (one of whom fired him, because he refused to go along with that government’s self-aggrandising policies); when his party was not in the coalition, he was Leader of the Opposition; when, I believe, it again was, he became Speaker of Parliament; at his death, he was serving as High Commissioner to New Zealand. But, still, he failed in his main endeavour, which was to create a polity marked by integrity, honesty and nobility. He believed this would happen if only Papua New Guinea would be true to itself, to its history, to its customs, both old and new; he could not make this happen.
To Bernard, Melanesian custom spoke to the best in his people. All he wanted was to make this the hallmark of the independent state he’d helped to create – such a simple wish, and everything – or, more precisely, everyone in power – the judges, the members of Parliament, the foreign investors and their Papua New Guinean compradors – conspired to make it impossible. A lesser person would have despaired. Or, at least, been angry. As far as I know, Bernard never lost his sense of humour, his impish wit, his willingness to take his afternoon nap on any available carpet, no matter how plush. He never lost his humility, his kindness, his essential optimism. Nor did he ever stop helping others. Even in his later days, despite his august accomplishments, his by then almost legendary status as one of the greatest, and truest, of the founding fathers, he was always available, especially to the young. In an email to me, responding to an earlier, more informal version of this memorial, a younger anthropologist, Ira Bashkow, described this part of Bernard’s life better than I can:
[My wife] Lise's fieldwork was in his home village, and he was tremendously kind to us. It is completely true of him that he was immensely generous and himself lived humbly. He had a rare kind of integrity, thoughtfulness, and brilliance. I feel like it was one of the privileges of my life to have known him. … Though we came to know him as an old man, and you since his youth, you describe the man we know exactly -- humble, wise, principled. His death marks a significant generational transition in the history of Papua New Guinea. As we say of Moses, another leader like him will not again arise.
I have said that, from some narrow perspectives, Bernard’s life could be viewed as a failure. But it will not be – and ought not to be. Because he was not just a lawyer and judge, not just a politician, he was, most deeply and through all of his life, a writer and philosopher. It is through his writings that he will live. His words will, I believe, do more than endure; they will inspire. So it is fitting we end with them. These are from his seminal work, The Melanesian Way:
Our history did not begin with contact with the Western explorers.
Our civilisation did not start with the coming of the Christian missionaries.
Because we have an ancient civilisation, it is important for us to give
proper dignity and place to our history. We can only be ourselves if we
accept who we are rather than denying our autonomy.
Our history did not have the binding effect of the written word. It did
not have the wheel to travel distances, and it did it did not have the naked
power of the barrel of the gun. Accordingly, our influence was limited.
Still, it was a lasting human experience.
But today, we have the gift of the written word and the privilege of the
wheel. We can reflect on our ancient past and the modern life. We can
have a responsibility to ourselves and to the world
to bring to the world the treasures of our civilization. ….
Cut off from the rest of the world for many centuries, Melanesians
nevertheless survived as a people. Now that we are finally connected
with the world, we suddenly see ourselves through the world mirror.
Will we see our own true size images, or will we see ourselves in the
images and the shadows of others?
Will we see ourselves in the long shadows of the dwindling light and
the advanced darkness of the evening dusk, or will we see ourselves in
the long and radiant rays of the rising sun? We can choose, if we will.
I see a new vision and a new hope for Melanesians. I see ourselves
holding fast to the worthy customs of our people. I see Melanesians
accepting principles of Christianity. I see Melanesians as a people who
have patience and time for every person. I see Melanesians giving their
highest regard to the spirituality of human dignity and a proper but
insignificant role to the building up of status through materialism.