La lectura crítica en los libros de textos

To deal first with the scope of the doctrine, the basic problem is that the general analysis provided by hheare and the others indicates a rather restrictive scope. This stems largely from their case studies which were not representative of the total colonial situation; and the choice of these selective case studies seems to

112. See Goldring, 1978:30; and Ka p i , J. in Milan Capek v. the Yacht Freja” [1980J P.N.G.L.R. 57 at 60.

have been the result of a failure by these writers to explain clearly Wheare's basic notions of the existing legal order and the new legal order.

To take the notion of the existing legal order, does it mean to refer to only one legal system or to several? In a colonial context, there are two general legal systems. There is, on the one hand, the colonial legal system which is predominant and derives its legal force from some act of the colonising power, such as conquest, secession or pure annexation. There is, on the other hand, the indigenous legal system which derives its legal force from the traditional communities. This is what is sometimes referred to as the traditional legal system which is recognised by the predominant colonial legal system only to the extent which served the purposes of the colonial administration. But otherwise it is not recognised as a legal system.

It would seem from Wheare's analysis that the legal system he referred to as the existing legal system was really the colonial legal system. The system did not "spring from the native soil" because in Kelsen's terms, its Grundnorm was external in that it derived its legal force from the colonising power outside the colony.

But the notion of the existing legal system in a colonial context could also mean the traditional or indigenous legal system which was kept in abeyance as it were, by the colonial state. This system has an internal Grundnorm as explained above. This indigenous legal system is in effect formally recognised at Independence. This is the legal system that Wheare implicitly referred to as the new legal order.

As far as it concerns autochthony, the relevant question is who has the power in the indigenous legal system to enact the Independence constitution? As the traditional legal system is bound to differ from one colonial context to another in terms of its constitutional structure, it would be impossible to expect that the power could be vested in only one kind of indigenous authority. Thus, in the case of PNG as was the case in Ireland, India, Sri Lanka and Ghana, power was taken as having by tradition resided in the people of those respective countries. But in Western Samoa it was vested in the Matai (the

traditional chiefs) and in Tonga in the King. ^ ^ In each case power was indigenous, deriving its legal force from those in whom power was vested by the traditional system. Hence, although power was internalised, the institution in which it was vested took a different form* in different colonial contexts, ranging from the people themselves to groups and even individuals.

In general, the academic lawyers focused on one of these forms, namely the people. Their failure to indicate the existence of other forms of authorities therefore reduced the scope of their analysis of the different forms that can exist of the source of power.

Discovering the source of power is however, only a part of creating an autochthonous constitution, because the doctrine assumes that the power has to be actually exercised in order to enact the constitution, if one is going to have autochthony in a given case. This then leads to the question of the exercise of power. The basic problem here is to find some way to show that the power employed to enact the constitution had not been derived from the existing colonial legal system.

This means, according to Wheare, there must be a break in the legal continuity between the existing colonial legal system and the new one; and the best way to bring about this break is to ensure that the procedure used in enacting the constitution was not prescribed in any way by the existing legal system. Much of the academic treatment of autochthony is concerned with demonstrating that Wheare's emphasis on procedure could lead to a rather narrow view of the scope of the doctrine. Thus, Robinson emphasised the fact of acceptance of the constitution by the people (and here he really meant acceptance of the constitution by the courts) as the basis for autochthony in Ghana. Marshall employed the notion of irreversibility to explain the doctrine in the context of the old Dominions. In both situations it was difficult to establish that there had been a break in the legal continuity in the sense in which Wheare had argued.

The preceding analysis shows that there can be a number of

113. Powles, 1979; and see also Roberts-Wray, 1966:295-301. 114. See Latukefu, 1975:84.

criteria by which it could be established that a given constitution is autochthonous. Whether a particular criterion applies to the exclusion of the others is a question that has to be analysed within the context of a given constitutional system. From the above analysis it would seem that there are two considerations which determine the essence of an autochthonous constitution. First, that autochthony is concerned with the source of power with which the constitution is enacted; and secondly, that the source is internal rather than external.

This simple definition of autochthony does not, however, become so obvious because of different meanings that have been ascribed to it by various writers. This has created an ambiguity in the use of the term. Some, for instance, use autochthony to refer to the source of legislative power with which a constitution is e n a c t e d . O t h e r s regard autochthony as relating to the content of the constitution.^^ Still others take it to mean both the source of power as well as the content of the Constitution. Those who have studied PNG constitutional law, for instance, conceive autochthony as not only referring to the source of power but also the content of the Constitution.^^ Thus, a question has been raised whether it is consistent with autochthony particularly in relation to the promotion of the National Goals, for judges to have a free hand in resorting to

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foreign precedents in deciding cases.

In order to reduce this ambiguity it would seem useful to restrict the legal meaning of autochthony to the question of the source of legislative power with which a particular constitution is enacted. For this is really the legal issue, namely, whether the power with which the autochthonous constitution is enacted is original or derived from the existing legal order. This basic point could be overlooked if too much attention is paid to arguments about whether a particular aspect of the content of a constitution is characteristically local or derivative of other constitutional

115. Roberts-Wray, 1966:289.

116. Maarseveen and Tang, 1978:259.

117. Goldring, 1978:28; Bayne, 1982:223-224; and Narokobi, 1975:19. 118. Bayne, 1982:223.

p r o v i s i o n s . U n d o u b t e d l y , e v e r y w r i t t e n c o n s t i t u t i o n , w h e t h e r a u t o c h t h o n o u s o r n o t , i s d e r i v a t i v e o f t h o s e t h a t p r e c e d e d i t e l s e w h e r e i n some r e s p e c t s . I t c a n be e a s i l y d e m o n s t r a t e d t h a t i n m o s t c a s e s t h e d e c i s i o n s made t o b o r r o w c o n c e p t u a l t o o l s f r o m e l s e w h e r e w e r e c o n s c i o u s l y m a d e . The CPC i t s e l f made t h i s p o i n t : [WJe h a v e a s s u m e d t h a t i f i t h a d b e e n i n t e n d e d m e r e l y t o f o l l o w some f i r m p r e c e d e n t , W e s t m i n s t e r o r o t h e r w i s e , no p l a n n i n g c o m m i t t e e w o u l d h a v e b e e n r e q u i r e d , l e a s t o f a l l on e c o m p o s e d o f t h e p e o p l e ' s e l e c t e d r e p r e s e n t a t i v e . A l a w y e r o r t wo c o u l d h a v e made up a c o n s t i t u t i o n w i t h s c i s s o r s a n d p a s t e i n much s h o r t e r t i m e t h a n we h a v e r e q u i r e d . I t i s n o t t h a t we h a v e i g n o r e d p r e c e d e n t s , f o r t h e r e i s s u c h a r i c h v a r i e t y among t h e w o r l d ' s c o n s t i t u t i o n s i f o n e l o o k s b e y o n d t h e m o r e i m m e d i a t e l y f a m i l i a r . An e x a m i n a t i o n o f o u r r e c o m m e n d a t i o n s w o u l d s e n d a s p e c i a l i s t i n many d i r e c t i o n s i f h e was l o o k i n g f o r o r i g i n s , a n d i n some c a s e s t h e r e a r e no e x t e r n a l p r e c e d e n t s a t a l l . What h a s i n f l u e n c e d u s a b o v e a l l i n s e e k i n g f o r m u l a t i o n s a n d a d a p t i n g t h e m , h a s b e e n t h e d e s i r e t o m e e t P a p u a New G u i n e a n n e e d s a n d c i r c u m s t a n c e s . . . . De S m i t h a l s o n o t e d t h a t d e l i b e r a t e a t t e m p t s a r e o f t e n made t o a d a p t t h e s e f o r e i g n c o n c e p t s t o c o n f o r m t o l o c a l c o n d i t i o n s , b o t h i n t h e way t h e s e c o n c e p t s a r e f o r m u l a t e d i n t h e c o n s t i t u t i o n a l p r o v i s i o n s , a n d i n 120 t h e i r a p p l i c a t i o n i n p r a c t i c e . T h i s i s , h o w e v e r , l a r g e l y a q u e s t i o n o f p o l i t i c a l c h o i c e , w h i c h d o e s n o t d i r e c t l y b e a r u p o n t h e q u e s t i o n o f t h e s o u r c e o f l e g i s l a t i v e p o w e r w i t h w h i c h a c o n s t i t u t i o n i s e n a c t e d . L e g a l a u t o c h t h o n y t h e r e f o r e r e f e r s t o t h e s o u r c e o f l e g i s l a t i v e p o w e r w i t h w h i c h a c o n s t i t u t i o n i s e n a c t e d . T h i s i s t h e c r u x o f w h a t i s m e a n t by a u t o c h t h o n y i n p u b l i c l a w . F o r , i t i s l a r g e l y i n t h i s s e n s e t h a t t h e d e c i s i o n s o f t h e PNG c o u r t s c a n b e m e a n i n g f u l l y e x p l a i n e d o r u n d e r s t o o d . I n t h e PNG c o n t e x t t h a t s o u r c e o f p o w e r i s t h e P e o p i e . D u r i n g t h e c o n s t i t u t i o n a l d e b a t e t h e CPC r e g a r d e d i t s e l f a s r e p r e s e n t i n g t h e p e o p l e , a n d i n v o k e d t h i s a r g u m e n t when i t came i n t o c o n f l i c t w i t h t h e l o c a l E x e c u t i v e . The l o c a l E x e c u t i v e c o n s i s t e d o f t h e i n d i g e n o u s M i n i s t e r s who f o r m e d t h e f i r s t N a t i o n a l C o a l i t i o n G o v e r n m e n t a f t e r t h e 1971 G e n e r a l E l e c t i o n s , a n d t h e c o l o n i a l b u r e a u c r a c y w h i c h i n c l u d e d 1 1 9 . CPC, 1 9 7 4 : 1 / 2 , p a r a . 9 . 1 2 0 . See d e S m i t h , 1 9 6 2 : 7 8 - 8 1

the Administrator. The CPC distrusted both the local E x e c u t i v e a n d the foreign Executive in Canberra. As Hegarty has noted, its Final

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Report exhibited a suspicion of power and a desire to limit