Sovereignty and legal pluralism in developing nations: a new appraisal of the Papua New Guinea case

Rivers, J., and Amankwah, A.H. (2003) Sovereignty and legal pluralism in developing nations: a new appraisal of the Papua New Guinea case. James Cook University Law Review, 10. pp. 85-115.

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Sovereignty, the plenitude of political and legal power that a modern state wields in relation to a defined territory and people and things within it, would appear fragmented in the case of Papua New Guinea. Granted that even with regard to the older and established nations the idea of an illimitable, indivisible and inalienable sovereignty cannot stand careful scrutiny, in the case of Papua New Guinea the determination of the attributes and content of sovereignty becomes even more problematic due to many factors. The most important of these is the status of customary law and its appurtenant incident of customary tenure.

Sovereignty belonging to the nation-state paradigm of 18th-century European traditions was imposed on Papua New Guinea at Independence. A concomitant of this type of sovereignty is a legal system comprised of the received common law and customary law. In this paper it is argued that sovereignty therefore appears fragmented, especially where land proprietorship is in issue.

Mismatch between the imposed form and indigenous forms of sovereignty tends to weaken the ability of the state to maximise good and effective governance. Fragmentation of sovereignty is the consequence of divided allegiance among the populace of the state at the centre and the community at the local level, invariably the situs of particular clan or tribe land, where clan membership determines rights to the use and enjoyment of such land and its resources. The imposed sovereignty merely fractured but did not obliterate local allegiance to, and the primacy of, community solidarity. The Constitution of Papua New Guinea exacerbates the problem in its prohibition of the taking of property without 'just compensation on just terms'.

Item ID: 13891
Item Type: Article (Research - C1)
ISSN: 1321-1072
Date Deposited: 13 Dec 2011 04:45
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180119 Law and Society @ 100%
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