By Ross Verne
THE VILLAGE courts are often written off as “broken” by Western legal experts, but international researchers are now asking whether Papua New Guineans have in fact found ways to make the unorthodox system work.
Australian National University researcher Melissa Demian said a 2008 trip to PNG alerted her to the fact that there was a widespread perception that the village courts weren’t working, something she herself had witnessed years earlier.
“I once recorded a rural village court magistrate from Milne Bay Province telling his court in 1999, ‘There is no government here – we are the government’,” she said.
Dr Demian said PNG’s legal elite had continually raised their objections to the fact that the village courts were performing actions outside of that permitted by law.
She and her team have established that the village courts are regularly exceeding their jurisdiction; they are now looking to answer the more difficult question of whether the system can still serve the people.
The project is investigating a number of village courts to document the extent of irregularities in jurisdiction, compensation payments, and types of legal representatives.
By the time it is completed in 2015, Dr Demian and her team hope to understand whether this really matters if the courts are able to serve their purpose – resolving conflicts between people.
“Take for example everybody’s favourite topic right now, sorcery,” Dr Demian said.
“The Sorcery Act 1971 was repealed last year, leaving something of a legal vacuum for any court at any level that finds itself confronted with a case involving sorcery.
“Although the Village Courts Act 1989 makes no mention of sorcery at all, it does provide for the application of ‘custom’, a category that many Papua New Guineans would say sorcery belongs squarely in.
“So should village courts be hearing sorcery cases, or shouldn’t they? In any event they are doing so, all over the country.”
It is this aspect of the system that researchers are investigating – whether the need to resolve conflict is creating a situation where new legal forms are inventing themselves to suit the needs of the people.
Dr Demian says the invented and adapted forms of dispute resolution are the result of the courts being “severely under-resourced and generally neglected” compared to the rest of the PNG legal system.
“Village Court magistrates have not been paid their already paltry allowance, currently K24 per month, for the past eight months,” Dr Demian said.
“Some courts…cannot even move magistrates around to hear disputes because remote rural transport is so expensive and unreliable.
“This is one of the main reasons people have had to improvise on the system.”
Despite the lack of resources and recognition, the courts’ ability to adapt is its greatest strength, Dr Demian said.
“There is a tremendous degree of regional variability, as you’d expect in a country as diverse as PNG,” she said.
“People are finding ways to make the courts meet their needs, but again this may fly directly in the face of the courts’ official jurisdiction, such as when large compensation payments are ordered.”
Dr Demian said the state and legal elite’s objections to the courts performing outside their jurisdiction rung hollow if more resourcing was not forthcoming.
“What I might regard as a rather admirable adaptability under conditions of state neglect is regarded by that same state as a problem,” she said.
“But of course you can’t have it both ways: if you want a local court system to function exactly as it is supposed to under the rules established for it, then there has to be an appropriate level of resourcing and oversight,”
“This there has not been, especially in rural areas where arguably the village courts are needed most.”
The country’s diversity is reflected in the variability of dispute resolution mechanisms being used in PNG, with varied forms of village courts and other mediation forums popping up as a matter of necessity.
The people have adapted to form their own unique, ad-hoc styles of dispute resolution – ones that have surprising parallels to alternative dispute resolution systems seen in other countries.
“Papua New Guineans have more or less re-invented alternative dispute resolution for themselves, because they’ve had to,” Dr Demian said.
“Dispute management in my own field site tends to take the form of a meeting with local leaders where the disputing parties try to manage their own conflict by talking it out in a more or less public forum.”
Dr Demian said this would often be done under the guidance of a pastor, village court clerk or local government councillor.
“Some people may prefer this type of forum because it isn’t bound by the constraints of the village court, and also, crucially, there is no ‘winner’ or ‘loser’ – the aim is a settlement that is agreeable to all parties involved.”
Dr Demian said the courts needed to be taken seriously by the government as a fundamental part of PNG’s justice system.
“Other aspects of the legal system in PNG are working quite well, considering how high the case loads are relative to the number of judges able to hear them,” she said.
“If the credibility of the village courts is in trouble, it is largely because they are so poorly resourced or otherwise supported by the law and justice system as a whole.
“Many village courts that issue imprisonment orders can’t get them enforced by police, for example.
“Some courts, like the ones I know best, cannot even move magistrates around to hear disputes because remote rural transport is so expensive and unreliable.
“This is one of the main reasons people have had to improvise on the system – in very remote rural areas there may be no courts at all.
“They will not work if they continue to be treated as an afterthought to the rest of the judicial system.”