769. Background. Village courts began operating in Papua New Guinea in 1975. Since that time the number of courts has greatly increased and they now serve two thirds of the population of Papua New Guinea. In August 1985 there were 856 village courts staffed by 7674 village court officials. Courts are established only on request from the local community, and many requests for courts are still to be processed. The national government is committed to the expansion of the courts and is aiming at 57 new village courts in 7 provinces and the National Capital District between 1984 and 1987. The scheme has reached the stage where some commentators have claimed that the village courts are perhaps ‘the most important legal institutions in the country’. The creation of village courts was linked to the end of the colonial era and the movement towards independence during the late 1960s and early 1970s. This involved to some degree a rejection of the British common law traditions previously adopted, and an attempt to make the legal system of the newly emerging nation more relevant to the Melanesian people. An important feature of this movement was the attempt to ‘customise’ the existing legal system so that the underlying law, made up of both custom and common law, became the dominant law rather than introduced statutes.
770. Structure of Village Courts. The Village Courts Act 1973 accordingly provided for the establishment of village courts to operate alongside the existing local and district courts. Important features of the village courts include the following:
Functions. The court’s function is to ‘ensure peace and harmony in the area for which it is established by mediating in, and endeavouring to obtain just and amicable settlement of disputes (s 16). If mediation fails the court has a compulsory jurisdiction (s 17).
Jurisdiction. The court has jurisdiction over all residents normally resident within its area (s 12) with inter-village disputes dealt with by joint sittings (s 14). The courts exercise both civil and criminal jurisdiction, although the distinction is somewhat blurred in the day to day work of the court. Specific offences within the court’s jurisdiction are prescribed in the regulations. These include:
· striking a person
· using insulting words
· damage to property
· drunkenness in the village area
· failure to perform customary duties or obligations
The Court may also hear contraventions of Local Government Council rules.
Compensation and Penalties. A village court may order compensation in most cases of up to K300.00, but without any limit in cases regarding custody of children, bride price or compensation for death (s 21(3)). Work orders for an injured or aggrieved party, not exceeding four weeks, may also be issued. The limit on fines is K50.00 in cash or goods. A maximum of four weeks community work may also be ordered, but imprisonment, which in any event must be endorsed by a local or district court magistrate, may only be ordered if a previous fine or compensation order of the village court has been ignored.
Appeal and Review. The courts exist largely outside the formal court hierarchy, but there are limited rights of appeal to a local or district court magistrate who sits with two village court magistrates. This decision is subject to review by a Provincial Supervising Magistrate (who also has other powers of review and supervision). There is no further appeal.
Personnel. A number of local residents are appointed as magistrates for each court: they hold office for three years. No specific qualifications are required but short training courses are run by the Village Courts Secretariat for new magistrates. Between 3 and 10 local magistrates constitute the court, but in many areas a distinction has developed between an ‘Area Court’ and a ‘Full Court’. With an ‘Area Court’ one or two village court magistrates try to mediate and reach a settlement which is reduced to writing and may be enforced. If mediation is unsuccessful a ‘Full Court’ of 3 or more magistrates will hear the case. A village court clerk who is the record keeper, and a village peace officer who assists the court and enforces its decisions, are the only other officials. They are not full-time officials and receive only a limited amount of remuneration. A district court magistrate is given responsibility for regularly inspecting village courts within his area.
Law and Procedure. Village courts apply any law or custom (s 26). The general law does not apply, unless by express application. The courts decide matters in accordance with substantial justice (s 27) and are Tree to determine their own procedures.
771. Village Courts in Practice. The number of village courts has expanded rapidly since their introduction in 1975. They seem generally to be popular and have become an important feature of the Papua New Guinea legal system. They appear to fit relatively well into the life of local communities, and their acceptance at village level, evidenced by the use made of them, is an important yardstick of their success. However during the nine years of their existence, the village courts have not been without their difficulties. A number of concerns have been raised about their operation.
772. Formality of Procedures. Many village courts have not developed in accordance with the intended model: informal procedures, no technical rules of evidence, ability to sit at any time and in any place, and mediation of disputes rather than arbitration. Rather the village courts have tended to take the common law courts as their model and have to an extent neglected mediation and compromise. It may be that magistrates have protected their own position by adopting a relatively formal approach. Village courts were a new legal institution within Papua New Guinea, and many magistrates were uncertain of the role they were to perform. However more recent evidence gathered by the Papua New Guinea Law Reform Commission suggests that mediation plays a greater role than suggested by some commentators. Their data showed mediation was twice as common as formal hearings. The Official Report on Law and Order in Papua New Guinea (September 1984) presented a different perspective:
The emphasis on formality in village courts appears to correspond to certain needs in the community and seems to us to illustrate the way flexible legislation permits communities to make what they need out of the broad provisions of the Act.
773. Application of Custom. Although village courts are meant to apply custom to settle disputes, there has been a tendency for magistrates to search for formal rules of law in order to exert their authority and the authority of the court within the village, rather than relying on local custom. On the other hand the application of custom is not always an easy matter. It is rarely in written form (although it seems that there is a growing record of customs as applied in the courts) and the ability of the court to apply custom is restricted to some extent by the limited knowledge of magistrates, who are not always the older, more knowledgeable persons in the community. Younger, tertiary educated persons are also chosen as magistrates.
774. Unofficial Dispute Resolution. The reality of this criticism diminishes when one takes into account the extent of unofficial dispute resolution operating within villages, sometimes involving village court officials:
This forum is typically less legalistic than the Village Court; it takes place directly outside the court house or in the village; many more people are included in the discussion, both as participants and audience, than the few who meet inside the Village Court; the ideas and events introduced are much more loosely associated with the dispute under consideration.
These unofficial mechanisms significantly reduce the number of matters which might otherwise come before a village court without diminishing the important role village courts can play:
[The village courts] are used mainly for cases that have not been solved by other methods available to the community: they are’ most of the time the remedy of last rather than first resort. By and large villagers use customary procedures including mediation before they go to a village court. They seek from the court authority and enforceable decisions rather than the mutual agreement which has already eluded them.
775. Relation to the General Legal System. It has been suggested that many magistrates working in village courts perceive their authority as being external to the local community and regard themselves as administering government law, because this is the source of their authority.
The symbolic might of the Court style is itself an aid to enforcement, for it evinces the Court’s association with the government and therefore the support the officials can call upon from the government … The power they hold mainly comes from their association with government, and by emulating other government courts they demonstrate that relationship.
However officials also complain about the lack of support given to them by the government. While their complaints have focussed principally on monetary allowances they also extend to facilities such as transport and police support. The relationship between the village courts and the police at times been difficult. There is no formal link between the two. This creates the potential for conflict when the police and village court officials become involved in the same dispute.
776. Supervision. A major practical problem associated with village courts is supervision. The supervising and inspecting magistrates play a crucial role in the proper development of the village courts. Supervision of local magistrates helps to ensure that fewer mistakes are made and that the courts do not lose direction. The rapid increase in the number of courts created increased responsibilities for supervising magistrates. In response, full time Village Courts Inspectors have been recruited, and they have taken over most of the supervisory work of the magistrates. The level of supervision has greatly improved as a result.
777. Usefulness in Urban Areas. At present the only village courts in an urban area are in Port Moresby. Doubts have been raised about their viability in urban areas, where there may be little or no community cohesion, where people are drawn together from many different areas, and where custom no longer plays as significant a role in day-today life. In these areas persons may be more likely to rely on the general court system. What may be required is greater flexibility in the court’s procedures to accommodate urban lifestyles. Some village courts, for example at Kila Kila, a few miles from Port Moresby, sit at night to allow for the work patterns of the villagers. Such flexibility may help ensure the workability of a village court. The Report on Law and Order in Papua New Guinea strongly supported the extension of village courts into urban areas:
778. Village Courts and Women. Village courts are male-dominated institutions. Virtually all the magistrates are men, and some women have accordingly been reluctant to bring disputes before the court. Doubts about the likelihood of a fair hearing and the inexperience of women as public speakers have been given as reasons for this reluctance. Paliwala suggests that in cases involving women some village courts have adopted a very traditionalist approach — a traditionalism not evident in other cases before the same courts. On the other hand the Report on Law and Order in Papua New Guinea cited figures, collected by the Law Reform Commission, showing that women were plaintiffs in 32 per cent of village court cases studied, and that often the complaints were against men.
779. Overview and Conclusions. Despite early resistance to the concept of village courts, once they came into operation the demand for their establishment has been strong. For the most part, they have been successful in achieving their purpose. Village courts, while not without their difficulties, have clearly filled a gap in achieving order at the village level. The large number of cases dealt with by village courts also suggests they are meeting local needs and reducing the number of cases coming before the higher courts. According to Paliwala:
from the perspective of court officials and our observation of the courts in operation, the model effective village court is one which attempts to achieve stability by punishing fighting, bad language, drunkenness and gambling and being tough with young offenders. It protects property by punishing theft and trespass. It facilitates traditional and modem transactions by enforcing contracts and debt. It keeps women under the control of their husbands by ensuring that they do not obtain divorce too easily, and by punishing unorthodox behaviour. Finally it acts as a judicial arm of the council.
The Report on Law and Order in Papua New Guinea comments that:
While there are no objective measures, it seems likely that village courts are contributing to the maintenance of order by assisting in the peaceful settlement of disputes and providing quicker and surer punishment for minor offenders … [T]hey have provided a spur to the sense of community and involvement in community, and to a sense of the worth of things run by and for common people. Insofar as they are successfully linked to other government agencies, village courts contribute to the legitimacy of the state and hence to other sources of order in the country at large.
The Village Courts Act is to be revised and consolidated to deal with some of the specific problems that have been identified. Changes to be made include:
provisions to incorporate village courts established at provincial level into the village courts system;
restrictions on the village court’s powers to imprison (including imprisonment in default) to a total of six months;
some increase in other penalty powers (which will, however, remain modest);
additional criminal jurisdiction over dangerous driving in a village;
clarification of the courts’ powers to make custody orders over children of customary marriages and ex-nuptial children;
provisions for enforcement of compensation orders or damages awards by execution against goods;
reinforcement of powers of supervision and review;