The negative attitude of colonial officials towards the idea of indigenous juridical officers began to change after World War II, when, for administrative purposes, Papua and New Guinea became a single entity known as the Territory of Papua and New Guinea. The governing Labor Party in Australia began to implement a ‘New Deal’ policy with a view to eventual independence for the territory. The Administrator, J. K. Murray, mooted the idea of ‘Native Village Courts’, and Section 63 of the Papua and New Guinea Act 1949 provided for the establishment of native village courts and other tribunals run by Papua New Guineans. However, Murray’s proposal — ‘Native courts … with jurisdiction in minor civil and criminal matters, especially but not exclusively in those relating to native custom’ — was not implemented, partly as a result of a change of Australian government in 1949. The idea of native, or village, courts was fielded several times during the 1950s without finding favour with the Australian Minister for Territories, Paul Hasluck, or with an influential conservative section of the judiciary in Papua New Guinea.
There was, however, a growing concern on the part of the administration that the majority of the population was not using the formal system of justice, and unofficial courts over which the administration had no systematic control were flourishing. Discussion among administration planners began explicitly to bring together issues of legal services, indigenous participation and custom in a configuration that forcefully reintroduced proposals for a Village Court System. In 1965, the legislative draftsman of the time, C. J. Lynch, proposed a reform of the legal system involving ‘native courts’ using ‘minimally trained native magistrates of the “village elder” type’, and administering ‘custom’ or ‘customary law’, arguing that it would provide speedy justice at a low financial cost and would be physically close to the people.
Other factors were also providing impetus towards a new justice delivery strategy. From the 1950s, there had been increasing pressure from the United Nations on Australia to prepare Papua New Guinea for political independence, resulting in, among other things, a program of ‘localisation’ of positions traditionally held by Australians. In the 1960s, a growing number of Papua New Guineans were moving into positions of authority in a variety of spheres, including Parliament. Among indigenous parliamentarians and academics in particular, a developing anticolonial rhetoric included calls for the favouring of custom and customary law as more appropriate regulatory instruments for an emerging Melanesian nation than the imposed legal system. This body of opinion complemented a contemporary influx of Papua New Guineans into the judiciary, and added considerable weight to the resurgent notion that some form of ‘native courts’ might be advantageous. In particular, there was concern about the inadequacies of Local Courts, such as over-formalised procedures and language difficulties, which alienated local communities, particularly in rural areas, and a procedural emphasis on producing a winning litigant, in contrast with traditional Melanesian concern with the maintenance of community stability.
A review of the lower court system and a subsequent inquiry into the need for Village Courts led to a White Paper being tabled in the House of Assembly and debated late in 1972. By this time, the majority of parliamentarians were Melanesian and ‘custom’ was becoming a rhetorical component of the debate about Papua New Guinea’s political independence. The Melanesian parliamentarians were mostly in favour of Village Courts. Among the themes traversed in the course of discussion were nationalism and criticism of the colonial legal system. In September 1973, the Village Courts Bill was introduced for parliamentary debate by the then Minister for Justice, John Kaputin, who stressed its potential efficacy in giving indigenous communities control over their own affairs. The issue of returning power to local communities was persuasive in the climate of the demise of colonial rule, along with the issue of the rural shortcomings of the current legal system, and a perceived need for an emphasis on rural ‘law and order’. The Village Courts Act 1973 came into force on November 28, 1974. Overall, mediation and the pursuit of peace and harmony in the settlement of low-level intra-community disputes were its principal aims. The commentaries of legal specialists of the time suggest that there were some expectations that Village Courts would gather existing unofficial dispute-settlement procedures into the centralised legal system.
When the first Village Courts began operating, in a rhetorical climate anticipating a post-colonial revival of custom, John Kaputin enthused that ‘customary law will from now on be a real part of the national law … Village Court magistrates who will be appointed because of their knowledge of customary law will be a vital source of information and, indeed, a catalyst for reform’. To this end, the legislation provided for Village Court magistrates, untrained in law, to be selected by the local community on the criteria of their adjudicatory integrity and good knowledge of local customs.
Within a short time, however, constraints presaged in the legislation and manifest in bureaucracy shifted the practical operations of Village Courts away from the idealised realm of ‘custom’, as I noted in Chapters Two and Five. Under the weight of official rules and regulations stipulating judicial limits and demanding the keeping of written records, Village Court officers found themselves structurally integrated with the existing legal system. Their activities could be overseen by members of the formal judiciary and certain types of cases were to be referred to Local or District Courts, which could also hear appeals by disputants against Village Court decisions. Community expectations, driven by experience of the colonial court system rather than by neo-customary political rhetoric, provided further impetus for Village Courts to be modelled partially on Local and District Courts, procedurally and architecturally. Villagers built bush-material village courthouses and wanted regular court sitting days. The general principle of disinterested adjudication represented by the colonial legal system was also attractive to them, after experiencing customary dispute settlement as a process beset by bias and manipulation under the exigencies of kin-ordered social organisation.
At the same time, lawyers are not allowed to attend Village Court hearings and, while disputants may have expectations that their court will operate like a District Court, they commonly use tactics more suited to the traditional moots and arenas whose spirit the Village Court System was originally intended to express. The legally unschooled and unconditioned magistrates demonstrate creativity in their dispute management and decision making. Overall, these factors have resulted in a great variation in operational style among the more than 1,000 Village Courts in general. Individual courts reflect the sociality of the particular local community they serve, and their praxis is a complex integration of introduced law and a variety of local customary dispute-management procedure. Notwithstanding occasional criticism alleging miscarriages of justice, particularly in respect of women in some parts of the Highlands, the Village Court System has proved popular with the local communities that it was intended to serve, has spread in urban areas and has become institutionalised in practice, if not by its inaugurators’ intent, somewhere between autochthonous dispute-settlement procedures and Local and District Courts.
Nevertheless, as the foregoing history shows, the contemporary Village Court System is an element of the State, by virtue not only of its origins in colonial State planning but of its continuing administrative connection to the hierarchy of formal courts, and this status is consolidated by its financial circumstances. In this respect it demonstrates similar dysfunctional tendencies to most other elements of State in Papua New Guinea. Despite its spread and popular support, the Village Court System has been beset by administrative and financial problems since its beginnings. Positioned in a formal legal structure, Village Courts are under considerable pressure to perform to standards of efficiency determined by bureaucratic and judicial overseers, rather than by the flexible and customary criteria of the communities they serve. Periodic reviews of the system have been attempted, and calls for better ‘training’ for Village Court officers are common, and often come from the officers themselves, who aspire to the imagined knowledge and efficiency of officers of Local and District Courts.
There has never, however, been sufficient funding or administrative organisation to achieve more than a few workshops in regional centres for limited numbers of officers. Financial problems are exacerbated by a division between the executive administration of the system, vested in the Village Court Secretariat, and its financial administration. The remuneration of Village Court officers is not by salary but by exgratia payment, and responsibility for provision of payments has shifted over time between different State organs. Most recently, in 1996, an organic law transferred financial responsibility to provincial governments. The Village Court Secretariat has subsequently attempted to implement this decision, but has found that a number of provincial governments are recalcitrant, and money received by them for Village Court remuneration is being used for other purposes. In the National Capital District, financial responsibility is taken by the National Capital District Commission (NCDC), but payment is inefficient and funds frequently go missing. The consequences are that Village Court officials often go for months without remuneration. Lack of payment is a constant source of frustration and anger for the officials, who (understandably) expect that it should be a simple matter to redistribute to them a proportion of the money they collect in Village Courts in the form of fines and which they deliver to authorities such as the NCDC or provincial governments.