text:
Final Remarks
essay traverses the history and jurisprudential questions involved in
the introduction of Australian law into Papua New Guinea in the period
before independence in the light of my experience as head of the
Government and Legal Division in the Department of External Territories
and Director of the Papua New Guinea Office during that period.
The essay begins with the proposition that Papua New Guinea, as a political entity, was a colonial construct but at independence was to become a nation-state. The question was whether and to what extent introduced western law was necessary and whether the overriding of traditional customary norms entailed in such a process might run counter to the administration of justice in the newly independent country.
Social control in the pre-state kinship societies existing at the time of European contact and during Australian colonial occupation is discussed and examined. It is made clear that payback in such communities is not mere anarchic violence or revenge but a means, in the absence of the state, of maintaining order. The analogy of self-help in Anglo-Saxon societies is developed in an Appendix to the essay and the question of self-help before the state is linked to the analysis in the separate essay, The idea of criminal responsibility in the western legal tradition.
The differences between traditional social controls and western legalism are analysed under the following headings:
The state – monopoly on the use of force – self-help proscribed;
Criminal responsibility;
The individualising of responsibility;
Punishment and individual responsibility;
Punishment and reparation;
The different nature of rules;
Finding facts;
Protection of the individual.
[A related issue of some importance concerns the rules of evidence in the western adversarial trial system and its applicability in the situation of a newly independent country like Papua New Guinea. This is discussed in an appendix, Australia and the Trial Process in colonial Papua New Guinea - a personal view.]
The essay gives an historical description of the interaction of introduced law and traditional social regulation in Papua New Guinea and the question of the introduction into formal law of Native Courts and Native Custom.It engages in this discussion through an examination of the views of Paul Hasluck, the Minister responsible, Professor David Derham who prepared an extensive report on the administration of justice in the territory in 1960 and of the Native Courts Ordinance proposed by David Fenbury, a senior officer in the Administration.
The Local Courts Ordinance 1966, introduced under the aegis of Minister Hasluck, is discussed and the report on the issue of Village Justices by Lindsay Curtis and myself in 1971 is examined. The copy of a Minute to Minister Morrison recommending final approval to a system of Village Justices is set out.
At independence Papua New Guinea was to become a nation state*. Before colonisation it had been neither State nor Nation.* Decolonisation of Papua New Guinea was not in any strict sense an exercise in self-determination because there was, as has been said, no 'self' to determine. There was only the State which had been colonially imposed. This is not to suggest that pre-contact Papua New Guinea was a social void. Traditional social regulation governed the lives of its peoples. A basic issue in the years before independence was whether these traditional social controls should form part of the new nation's law or be replaced, as being unsuitable for a new nation, by an introduced legal system.
The incongruities arising from the interaction of western law and traditional social regulation are immense. Nevertheless it may be said that these contradictions were inevitable and, whether recognised or not, began from the moment Commodore Erskine sailed into Port Moresby in 1884. It was never contemplated that a colonised Papua New Guinea could revert to a pre-State society. Independence was only the completion of a process beginning with colonisation and culminating in a nation state. Accordingly, these incongruities, it may be argued, simply had to be accepted. On this view, one was only detracting from the creation of an effective nation by qualifying the introduction of a western-type legal system with native custom.
The State did not exist in traditional Papua New Guinea. The people of the territories were fragmented into innumerable clans. Except in the Highlands where the Chimbu and Enga may have numbered in the order of 50,000 to 80,000 there was nothing approaching tribes in the African sense. There was no chiefly rule as in the case of the Bantu of South Africa* or the Polynesians of Tahiti or New Zealand, which might be viewed as the beginnings of centralised authority. Even less could Papua New Guinea society be compared with the States of West Africa such as the Ashanti of Dahoumey or the Yoruba Kingdoms of Benin. Stateless societies existed in Africa but these were very much larger groupings, such as the Tiv of central Nigeria or the Nuer of Sudan each extending to many thousands and organised on a kinship basis so that within them authority was maintained by a kind of 'balance of power' arrangement.*
In Papua New Guinea social control was maintained through kinship. The clan comprised exogamous descent groups, all the members of which were related to each other by descent *. In a sense the kinship group in stateless societies performs functions which in a modern society are carried out by the State, including the resolution of disputes between members and the protection of the group from external violence.
Customary obligations differed among kinship groups, but the diversity should not be overstated. It is evident that given a common economy and a common technology, customary obligations relating to the family, to land, its acquisition and inheritance were broadly similar*.
The key thing in the Melanesian ethos was the emphasis placed on 'the notion of equivalence'. Equivalence was expressed as kab'g or pharta* but it was not reciprocity of guilt. It was equivalence of the loss or injury caused. The state of mind of the wrongdoer was irrelevant. This was so because it was the loss to the group which constituted the wrong. Not only was it the group which was the entity harmed, but it was the 'injuring' group which was responsible so that 'if one of the members (of the group) killed a man, the group as a whole was held responsible'.*
'The system of social control … is all marked, though in different degree, by reliance upon the principle of self help.'* James Sinclair recalling the compulsive nature of pay-back, said if a man of 'one group was killed, that group did not rest until it had killed a member of the opposing group. So started a feud. Retaliation by the injured group itself brought further retaliation, and so the vicious vendetta spread, feeding upon itself'.*
The immediate object of payback is the attainment of kab'g, equivalence of loss for injury. It is this which gives to payback the compulsive element of which Sinclair spoke. Mr Justice Gore, a Justice of the Supreme Court of Papua and later of Papua New Guinea, described a case in Menyama illustrating this:
"A man killed his wife because she had angered him in some trivial matter. This woman had belonged to a village some distance away where she had two brothers who, when they heard the news of their sister's death at the hand of her husband, became angry and determined to pay-back. They set off for the murderer's village one morning but as it was a long way off they had to spend the night in a village en-route. Here they were well received and when their mission became known to their friendly hosts, one of the latter expressed a wish to accompany the brothers on their journey of revenge as an assistant. The wish was granted gratefully and early next morning the three set off for the village which was still some distance away. Soon after leaving their way took the party towards a pretty mountain stream. When they got closer they saw a man sitting on a rock at the edge of the stream. Although the man was of the same language group as the people of the village where the murderer lived, he had no connections there. The brothers agreed that this man would satisfy them as an object of pay-back and they need go no further. They would kill him and go home. It was quite early in the morning and the mists were still hovering over the little stream. The man seated there was making an arrow, singing to himself … he heard a noise, his singing stopped, and turning around he saw the three men approach him with drawn bows. He jumped up, made to cross the stream, but his assailants were too quick for him; their arrows pierced him to his death."*
The notion of equivalence is thus applied to group harm. Only if the other group suffers by the death of one of its members and therefore the equivalent loss, would kin feeling be satisfied. No punitive element is involved. There is, in this rather extreme case, no recognition of responsibility at all.
To a European payback represents anarchic violence. But behind the compulsion of retaliation lay the objective of maintaining the peace by the threat of payback through fear of reprisal.* It is true that it was an inadequate means of doing so. Kab'g affords only limited psychological restraints upon the feelings of vengeance inspiring payback. In reality, fear was likely to be the only inhibition to violent reprisal. Too often this proved insufficient and payback initiated a continuing renvoi of violence.
Stateless societies such as those in Papua New Guinea walk a tightrope. The threat of force maintains a degree of peace but the threat is only viable whilst there is a prospect of force being inflicted. But, in the absence of the State, the only entity capable of being moved to apply force is the victim or his kin. These are, by the nature of things, motivated by revenge or feelings akin to revenge and not by a desire to keep the peace.
Self-help is thus the common characteristic of all societies without the State or in which the State is evolving. The highly undeveloped statelessness of Papua New Guinea aggravated this but keeping the peace was a major issue confronting all stateless societies. It would seem these societies sense the dilemma in trying to keep order and typically devise various mechanisms of side-steping the blood feud while maintaining its coercive effect. One example of this is the magarada among the Australian Aborigines of Arnhem land in which the blood feud is carried out theatrically and concluded with minimal violence.* Another is the 'shouting' matches among the Siane recounted by Dr Reay and Dr Salisbury.* A similar substitute for the blood feud in Papua New Guinea was the tagba boz in which the opposing sides lined up with hands clasped behind their backs and kicked each other's shins until one side withdrew. Of course these substitute 'games' might get out of hand. 'Should a death result, the victim's group would kill a member of the other group in order to even the score, and an exchange of death compensation would follow'.* Nevertheless, 'there was … a tendency to develop institutionalised sanctions which could restore order and break the vicious circle of violence and counter-violence. There was a tendency to settle disputes without the use of violence or at least to control the use of violence'.*
The principal modes of dispute settlement designed to avoid the violence of payback – mediation and compensation – were complementary. The aim in mediation is not to 'decide' the dispute but to settle it and in such a way that the relationship between the disputing groups is re-established. Thus, in the Minj area, as Marie Reay describes it, disputes between sub-clans would be mediated by the 'first' men of each sub-clan. If these failed, a sub-clan member of higher prestige, the 'orator' would be called in to assist. A meeting would be held at which the whole matter would be 'aired' without any strict regard to relevance. Settlement might be brought about by the payment of compensation in the form of shells, plumes or pigs, payable by the offender and his sub-clan. 'But if the orators of two sub-clans failed to reach agreement the only choice available was between settling the difference by force or letting it simmer on.'*
Dispute settlement in this way applied mostly to disputes between sub-clans and within the clan. Disputes between clans were not so readily resolved and inter-clan rivalry more often resulted in payback and warfare.* In certain areas, tribes and other groups seemed to be, as Hasluck said, in a 'constant state of belligerency'. In such a situation only the threat of superior force or its actual exercise could curb violence.
Papua New Guinea therefore sought to maintain order by the threat of self-help mitigated by mediation and compensation.
In western legal systems order is sought to be achieved through the criminal law, the enforcement of its prohibitions and the punishments it imposes and through the peaceful settlement of disputes which, if not settled, would lead to violence. The coercive agencies of the state through the police enforce the criminal law, the courts decide disputes and the state enforces their decisions.
However, obedience, and therefore order, does not depend only upon these coercive elements. It depends very largely upon acceptance by the community that the laws are just and accord with its values. Although the law is not coterminous with morality it must satisfy minimum community standards to command obedience. Where it attempts to exceed these and demands higher moral behaviour, obedience to law and, therefore, order will break down.
In western democratic societies acceptance of the law as being just results from the democratic processes by which the law is made, the impartiality and openness of court procedures and the fact that, by and large, the law is a body of indentifiable pre-existing rules – and thus disputes are not settled by the exercise of palm tree justice which may seem arbitrary and unjust.
It is evident that these values and the institutions which give rise to the habit of obedience in western societies would not necessarily apply in Papua New Guinea.
The colonial State which included western law as part of its package could not assume natural and un-coerced obedience. To determine to what extent western law might need to be modified or even indigenised in order to bridge the gap requires us to isolate quite specifically the profound differences between traditional social regulation and western law.
Differences in the conceptions underlying traditional social control and Western law
The State - monopoly on the use of force - self-help proscribed
The distinguishing characteristic of State societies is the assertion by the State, and conceded to it, of a monopoly over the use of legitimate force within the community. With limited exceptions, enforcement of the criminal law independently of the State is prohibited.
Provocation is admitted as a defence to criminal liability only in very strict and limited circumstances. At common law it was never an absolute defence. It would, if proved, reduce murder to manslaughter. This was largely a concession to human frailty at a time when the death penalty was mandatory for murder. And even then a defence was allowable only where, due to passion, there had been a temporary and sudden loss of self-control.*
To a traditional Papua New Guinean this was unthinkable. Provocation was not merely a defence or justification. It was the raison d'etre for revenge. It mandated a violent response. Provocation would justify an attack on someone other than the provoker if he were a member of the same group. It was irrelevant that the response took place long after the provocation.
Such reactions, no matter how compelling, would not avail a Papua New Guinean at common law. In The Queen v Kaubo-Paruwo* Chief Justice Mann made the following comment:
"If the Court were free to evolve a common law basis for the operation of the defence of provocation suitable for the primitive state in which many of the natives of the territory are at present living and are indeed required by circumstances to live it might appear that the established practice of striking back against the nearest clan relative ought to be recognised as carrying a different degree of criminal responsibility from wilful murder. And it might be thought that the penalty prescribed for manslaughter carried sufficient sanction as a matter of public policy to lead the people to a more advanced standard; but in applying the provisions of a Criminal Code as they stand there seems to be no justification for going outside the terms of Section 268 for a definition of provocation."
In this case a fight flared up between members of two clans (during negotiations over a girl who had been 'marked for marriage' in one of the clans but, on reaching marriageable age, had gone to the other). Kauba, the defendant, saw Hamo attacked by his (Kauba's) father Baluwo and saw Hamo kill Baluwo with an arrow. Kauba was deprived of his 'first choice of victim' by Hamo's retreat, but saw Habo's son Nuabo nearby so ran into a house, took up a bow and arrow and shot Nuabo – killing him instantly.
What we have described represents the threshold difficulty: the substitution of the State and the general acceptance of its authority in place of payback. That means the prohibition of payback. That involves the prohibition by force of a practice which was not merely habitual but compulsive.
The pre-eminence of the State has been achieved in many societies along with the replacement of kinship by the territorial principle. The history of this in Anglo-Norman England is described in the End Note, 'The elimination of self-help – the analogy of Anglo-Saxon society' but it took place in early England after a long process of historical development.
Criminal responsibility
Criminal liability in western-type legal systems depends upon the idea of moral responsibility for harm caused.* There are, it is true, limits to individualisation in the application of this principle. Reasonable foreseeability of the consequences, as distinct from actual subjective intent, may give rise to criminal liability. Certain defences which depend upon the behaviour being that of an ordinary man or woman also limit individualisation. But generally the principle holds. There is no criminal liability for purely accidental injury.
In Papua New Guinea society the state of mind of the offender, and the degree of fault of the offender are irrelevant to liability. What is involved is simply the loss or harm caused.
The individualising of responsibility
Criminal liability in western law attaches to the individual. The only example of group liability in recent European history is that of the Nazi sippenhaft. What is in issue in Papua New Guinea was 'group' loss resulting from 'group' wrong. And so, it followed that the group would be held responsible. The account of the killing in Menyama by Mr Justice Gore exemplifies both the absence of the concept of individual responsibility and the existence in its place of group liability.
Punishment and individual responsibility
Because there was no idea of individual responsibility as a basis for liability there was no idea of guilt.* Because there was no idea of guilt, there was no idea of punishment as such. That is, there was no recognition of restraint of liberty or other physical imposition unrelated to infliction of equivalent harm to achieve group satisfaction, as a proper response to a community wrong.
One important consequence of this was that punishment, even where it was imposed, often fell short of what the victim and kin in traditional society thought adequate. Punishment is directed very largely to individual incapacitation or deterrence. Imprisonment does not readily give rise to immediate satisfaction. That could only come from the infliction of death or injury on the person who had caused harm.
Punishment and reparation*:
It is only with the State that a distinction can be drawn between punishment and reparation: between criminal liability, which is communal, and civil liability, which is private. The object of punishment is deterrence or retribution. Those who have directly suffered from the harm caused, may independently institute civil proceedings for private compensation.*
In traditional society there seemed to be no criminal wrong which, potentially at least, was incapable of being satisfied by compensation. But for most of the indictable offences triable in the Supreme Court, the Court would be unable to award compensation to the victim.* A victim of a crime could only initiate separate civil proceedings for compensation. Indeed, ordinarily at common law it would be an offence in itself to compound a felony by the acceptance of payment in satisfaction for non-prosecution.* Nor was there any notion of Group entitlement or Group liability at common law. The right to compensation was entirely individual.
The different nature of rules
The territorial nature of the modern State leads to rules being generally uniform across a given territory and impersonal in their application. Papua New Guinea's societies were based on kinship and were thus inter-personal. In such a situation rules would differ in their application both within the kinship group and towards those outside it:
"The same offence meets with different social responses; in the case of close relatives, limited retaliation; in the case of unrelated persons, severe retaliation unless neutral kin intervenes. That is to say, in our legal system we emphasise the nature of the wrong irrespective of the relationship between the persons involved; abstract impartial justice. In the New Guinea system there is no concept of abstract impartial justice. The emphasis is on the need to patch up broken relationships and the nature of the wrong action tends to be ignored or played down."*
In State 'societies' there will be a body of rules prescribed by an organ of the State applicable throughout the State territory. Those rules will be set out in an accessible form. Order is maintained through State agencies insisting on their obedience or punishing their infringement. Disputes are decided by the application of pre-existing laws to facts ascertained by the rules of evidence.
In traditional Papua New Guinea there were no institutions independent of the community. There was no autonomous body of rules separate from the community and the interpersonal relationship of its members.
Peter Sack brings out this and its implications in the following comment:
"The State as a social reality apart from its subjects has to exist before an impersonal legal equality - the pre-requisite of justice - can develop. Members of primitive stateless societies do not have this status of legal equality because the group is identical with its members."*
In summing up, Sack said, 'the idea of social balance is as central to primitive law as the idea of justice is for western law'. This is true although we must add that by 'justice' is meant justice for the individual in a society subject to a separate and autonomous State. "The State .. is a separate system within the total social order, but the geographical boundaries of the two are coterminous. .. The allegiance and responsibilities the state demands, and the protection it provides, ... apply equally to every member of the society. This can be achieved only if every member is conceived .. as a citizen-isolate. The meaning of this term is a person who, by acknowledging his obligations to the state is automatically guaranteed reciprocal rights and privileges accorded all other persons who accept the state's authority.. These rights and privileges should not be influenced in any way by the individual's personal relationships. It is essentially a case of equality before the law."*
Finding facts
In English law facts have to be proved. The mode of proof is governed by the rules of evidence. These are directed to the issues in the case. No hearing of a criminal or civil case may proceed without the issues having been defined. Evidence of the facts has to be adduced by a process of question and answer given to and by witnesses or through the tendering of documents proved by witnesses. The only exception to this concerns those facts so universally known that the Court will take judicial notice of them. This is a very limited exception. The main rule of evidence is that all facts relevant to the issues in the case are admissable and all irrelevant are inadmissable. By relevance is meant that the facts sought to be adduced would render the central facts in issue between the parties either more or less probable.
Hearsay evidence - that is a statement made otherwise than by a witness giving evidence for the purpose of providing the truth of the matters stated, is excluded, even if those matters would be relevant to the facts in issue.
A Papua New Guinea moot also aims to find the truth but this is usually subsidiary to reaching a settlement. Because its purpose is not to 'decide', there is no close notion of the issues in the dispute nor of relevance. Nothing is inadmissable and the dispute settlers as well as the disputants rely heavily on popular knowledge.
Protection of the individual
Western societies have developed criminal procedures and evidentiary rules to protect the individual. These reflect values and goals of the legal system other than maintenance of order. Indeed, certain rules may run against that objective. Western societies are prepared to sacrifice in some degree the maintenance of the peace in order to give effect to these values. The principal value sought to be achieved is liberty of the individual from wrongful prosecution, conviction and punishment or wrongful treatment by the police as agents of the State. These values arose concurrently with the increasing power of the State. With the development of the modern police force democratic societies felt that the sense of physical security necessary for society to function could be maintained and that, instead, the danger had become the possibility of abuse or excess of authority by those appointed to keep the peace. Procedural rules were thus developed as a protection against the perceived power of the State. These were not designed to procure conviction of the guilty but to avoid conviction of the innocent.*
Hence a very high standard of proof became required in criminal cases by the common law - proof beyond reasonable doubt. The accused was protected upon being apprehended by the police by the right of silence and privilege against self-incrimination. The evidentiary rules against the admissibility of confessions obtained through violence are another example.* In addition, a judge may exclude a confession even if voluntary where he considers its admission would operate unfairly against the accused.*
It is however inevitable that the application of these rules may involve the guilty being acquitted.
Sinclair describes the impact of the rule excluding confessions in a Supreme Court proceeding in Finschhafen during the 1960's:
"In court that morning he (the Chief Justice) heard a case of infanticide from a bush village in a far corner of Kabwum region. A young girl had been seduced by her uncle and had given birth to a son. Driven to distraction by the contempt and hostility of the village people - she had secretly killed her baby soon after birth by dropping him alive into a deep pit latrine. She told the people that the baby had died naturally, but the luluai of the village was suspicious. He questioned her; she broke down and confessed. The corpse was recovered, and the luluai took the girl to Kabwum - several days walk away - with the uncle and half the village, for the affair had awakened the deepest passions among the people … the hearing finished almost before it began. The only evidence against her was her confession to the luluai. Defence counsel argued that the evidence was inadmissible on the basis that the luluai was a person in authority and the girl's confession had been made without proper explanation of her right to remain silent. The Chief Justice ruled the confession inadmissible. The Crown case collapsed and the girl was allowed to go free without having uttered a word in court.
The village people were stunned. They could not believe that the girl was not to be punished. She was equally bewildered. She knew, they knew, everyone knew that she had without any doubt killed her child. How could this white man's court let her go free? The Chief Justice from the bench attempted to explain the reason for his decision. He was bound to follow the rules of evidence, and without a confession there was nothing upon which to convict the girl. This made matters worse. 'Mr Sinclair, you must carefully explain the facts in this case to the village people' he directed me. He could see that the people were becoming angry. 'You must make them understand that the rules of evidence were evolved over many hundreds of years, to protect the rights of the individual'. He was very sincere, and completely correct. 'I'll try, Your Honour' I said, but I knew it was hopeless. The decision simply could not be explained in rational terms to these bush people. I thought, unhappily, of the girl. How could she go back to her village now? I thought of the hundreds, the thousands of times that luluais … all over the Territory had in the past brought in self-confessed law-breakers to the nearest patrol post or district office: had they then been improperly convicted?".
This case brings out the tensions involved in introducing Australian law – or, in a deeper sense in not introducing it. These tensions increased with the approach of Independence.
The immediate reaction to Sinclair's description is that the common law rules relating to the exclusion of non-voluntary confessions should forthwith be removed or modified. The rules are, it would seem, too distant from the thinking of the people. *
But such a reaction might be stilled by the thought that an independent nation implies that it will have a strong central State and a strong police force. Such a Force like all police forces throughout the World will be concerned to secure convictions. It is likely that police investigations will involve questioning semi-educated Papua New Guineans fearful of authority who may well be innocent. In other words, the precise situation will then exist for which the exclusionary rules relating to coerced confessions to prevent oppression were designed.
But, pausing further at this point, our supposed observer might recall the importance to an independent Papua New Guinea of the maintenance of order which would in turn require the conviction and punishment of a high proportion of guilty offenders. If confessions are excluded too easily it would be necessary for the police force to be highly trained and dedicated in the pursuit of other evidence to secure convictions. The manpower, the training, the money and the time for this purpose may simply be unavailable in a developing country.*
Part II
The interaction of introduced law and traditional social regulation in Papua and New Guinea
Interaction was gradual. It was only upon contact that European law touched the lives of Papua New Guineans and only then did any question arise of interaction with traditional custom.
The Highlands were first opened up in 1939 with J.L. Taylor's patrol from Mt Hagen to the border. As late as 1951 large areas of the country remained unexplored. Within the next five years patrols made contact with a new population numbering 400,000.
The patrol officer and other officers in the field belonged to the Department of Native Affairs, later renamed the Department of District Administration. A District Officer would of necessity be responsible for the entire range of administrative duties, including those of police, magistrate, and gaoler. In his capacity as magistrate the District Officer presided over Courts of Native Affairs. Apart from physically setting up the post the patrol officer's first task was to establish order. Chiefly, this meant, restraining payback and, by a mixture of force and persuasion, teaching the indigenes to stop killing one another. In fact the sharpest point of contact between introduced law and traditional Papua New Guinea was the prevention of payback.
Force and the threat of force were the most obvious ways by which order was maintained. But disputes which might otherwise result in 'payback' could be resolved by agreement. Peace and order would be effectively achieved in that way.
It was understandable therefore that the District Officer would turn to traditional customary modes of mediation and compensation to settle disputes. And it was natural that in order to 'back up' a settlement he should use his authority to charge or not to charge natives for offences.
Frequently, but not invariably, the channel of communication between District Officer and indigenes would be through luluais, tultuls or village constables. These indigenous officials did not have adjudicatory powers but their authority 'to adjust minor matters and local questions which were not sufficiently serious to try before the Court of Native Affairs', enabled them to play a significant dispute settlement role as an adjunct to the District Officer.
Accordingly District Officers often encouraged unofficial traditional courts to resolve disputes. More often than not the District Officer would attempt to bring about an amicable settlement rather than treat the dispute as a court matter under the Native Regulations.
The Courts of Native Affairs mentioned above had been established by the first Administrator, Sir William McGregor, in Papua and were adopted, although differently named, in New Guinea. District Officers presiding over these courts had some elementary legal training. The court would be held in the District Office or, if on patrol, in a shaded place with the flag draped over a folding table. The Native Regulations which these courts applied comprised simple 'forbidden acts'; "minor" offences such as theft, assault and, importantly, adultery and sorcery, as these in the Territory were fruitful sources of violence. The maximum term of imprisonment which could be imposed was six months. Punishment of an offender could well be ancillary to the settlement of the underlying dispute which had led to the offence.
In the pre-war period and for the first two decades after the war the bulk of indigenous disputes were dealt with by District Court Officers sitting as Courts of Native Affairs. Ian Downs estimated that 75% of Court matters involving indigenes were dealt with by these Courts.
The law applied was either adopted Australian law or Ordinances made in the Territory. Thus the Queensland Criminal Code was adopted into Papua in 1902 and New Guinea in 1921. Summary offences were proscribed by Police Offences and Vagrancy Ordinances mainly borrowed from Queensland and by the Native Regulations made in the Territory. Some provision was made for the recognition of custom provided that the customs were not barbarous or repugnant to the common law. There was an express provision to this effect in the Laws Repeal and Adopting Ordinance (1921-1923) of New Guinea and although The Courts and Laws Adopting Ordinance 1889 of Papua made no specific reference to custom the courts in various circumstances took account of it. The Judges would, of course, take account of indigenous customs and beliefs when imposing punishment.
A formal enclave of custom applied to land tenure and land disputes. Land owned and possessed by natives and regulated by native custom could not be alienated except to the Administration or to another native in accordance with native custom. Originally, before 1958, disputes concerning land were dealt with by Courts of Native Affairs. However, a Native Land Commission was formed in 1952 to determine and register land rights. In 1958 the Supreme Court held that District Officers no longer had jurisdiction to determine land disputes but only to record the facts and refer them to the Native Lands Commission.
At this stage therefore the contradictions between introduced law and traditional social regulation were blurred and relaxed. Nevertheless, they existed. Even in the Courts of Native Affairs there were distinct differences between European and indigenous attitudes over marriage and bride price and in beliefs about sorcery.
In the Supreme Court the tensions were sharper because that Court necessarily administered law in a more technical way. The Supreme Court would hear the more serious – or indictable – offences after committal for trial by a District Officer sitting as a magistrate. But Sir William McGregor instituted the practice of the Supreme Court going on circuit so that it would take the law to the people. This was graphically described by Mr Justice Gore in Justice Versus Sorcery and in later times by Mr Justice Smithers. Mr Justice Smithers described one such Circuit as follows: "there would perhaps be cases of forgery and murder at Wau – of murder and rape at Menyama – of murder at Kinantu and manslaughter and murder at Minj".
Part III
Native Courts and Native Custom
Preliminary comment:
The description below of this little bit of history is left unfinished. What is described is an exercise in applied jurisprudence in unusual circumstances where the tensions of superimposing western law upon traditional custom were intensified by the imminence of Independence. It illustrates, as one more example, that decolonisation in the case of many societies was not just a transfer of political power. It involved the creation of institutions which depended for their effectiveness upon the replacement of deep-seated values. The granting of independence to Papua New Guinea and many other countries was morally imperative but, as is insufficiently recognised, decolonisation was accompanied by a cultural imperialism, no matter how gently introduced or how inevitable. The history of this aspect of decolonisation did not end at independence but in the abbreviated form presented here peters out in the constitutional twilight where formal power is retained by the colonial authority but the reality of power has already passed.
Native courts and native custom are only two of the many issues in the administration of justice in Papua New Guinea during the period leading to Independence. But with the possible exception of land tenure, they highlight the problem of interaction with western law more than any other.
A draft Native Courts Ordinance was presented to Hasluck for his approval in January 1955. It had been prepared in the Territory and was in fact the successor to an original draft prepared in May 1950. Its initial preparation seems to have taken place at the same time as the Native Local Government Councils Ordinance. Both had been provided for in the Papua and New Guinea Act 1949. The impetus for the Ordinance came from an administrative officer, David Fenbury, who had served with the British Colonial Office in Tanganyika, and had thus become familiar with British Colonial ideas of Indirect rule. He became Native Authorities Officer in Papua New Guinea with special responsibility for the introduction of Native Councils under the new Ordinance.
The proposed Native Courts Ordinance was based upon legislation operating in the British Solomons Islands Protectorate.
It provided for Native Courts to be established to deal with civil cases in which all parties were native. Court membership was to be entirely indigenous and the area of jurisdiction was to be local. Section 11(4)(c) of the Ordinance provided that the Native Courts were to have jurisdiction in "all matters arising solely out of and regulated by native custom" but only in so far as native custom was not repugnant to natural justice and morality and was not, in principle, in conflict with any law in force in the Territory. A key provision was that 'the courts were to be guided not by law, nor by custom but by the requirements of substantial justice'.*
The preparation of the Native Courts Ordinance not only paralleled the enactment of the Local Government Councils Ordinance but both assumed control by District Administration ('District Administration' replaced the older name of Department of Native Affairs).
Hasluck was to record that "the jurisdiction, the membership of the Courts, the judgment of the Courts and nearly every phase of their work would appear to be subject to control (either by direction, revision or suspension) by officers of the Administration". He reacted very adversely to the proposal and ruled against it.
In December 1960 Professor David Derham submitted a report on the administration of justice in Papua New Guinea which the Minister had sought in 1959. The draft Native Courts Ordinance was considered by Professor Derham in the course of his report. In October 1961 the Minister, in a substantial address to the Parliament on the administration of justice in Papua New Guinea expressed the government's support for the Report's recommendations. In particular, when commenting, Hasluck told parliament that, "a firm policy decision was made in 1955 against any development in the Territory of a system of customary Native Courts outside the regular judicial system. Professor Derham, after reviewing the discussion that led to that decision, commended it as sound".
The issues: The particular proposal in the draft Ordinance and the question of native or village courts generally, gave rise to a number of specific issues which were debated in the decades before independence:
(a) Were Native Courts in whatever form to be adjuncts to, and under the control of, District Administration?
(b) Should as a matter of principle there be separate courts presided over by natives only and in which the parties are exclusively natives, as proposed in the draft Ordinance?
(c) How was the judicial system to be localised?
(d) Should native custom be recognised at all? If so, should it be an integrated part of the general law administered by all courts or separate from it and administered solely by Native Courts?
(e) Whatever form indigenisation of the judicial system might take (whether by separate Native Courts, assessors, native judges), should mediatory procedures be introduced? And, if so, in what way?
Of course, although some of these issues were analytically distinct they intertwined in policy formulation and the variables were greater than sometimes recognised.
Thus it would be possible for there to have been Native Courts in the sense of courts staffed by natives but which administered the ordinary law to indigenes and Europeans alike. Native Courts in this sense would only be a means of localisation. That would in itself be a contribution to the legal system at independence but is not relevant to the question we are considering – the engagement of native custom with a western-type legal system. Another possibility would be for Native Courts to have jurisdiction over both natives and Europeans but to apply recognised native custom in those disputes involving natives: on this assumption, native custom would be recognised by means defined by the ordinary law. A further possibility would be for Native Courts to be restricted in their jurisdiction to natives and to apply native custom determined by customary methods. That would mean abandoning the processes of western law and proceeding through mediation.
Hasluck and Derham – Agreements and differences
But, whatever the form of Native Courts, there was another issue which was to whom should they be responsible? To District Administration and, in effect, therefore subject to the supervision of the administrative arm of government, or as part of the court structure and thus to the processes of the judicial system?
For Hasluck and for Derham this was the central issue. The major objection to the proposed Native Courts Ordinance was that the courts were to become an adjunct to District Administration and subject to it. It was thus envisaged these courts would exercise their considerable jurisdiction outside the court system. To both Hasluck and Derham it was of concern that the Ordinance provided only that native custom should accord with "substantial justice". This was a very general expression which would have enabled the administration to exercise overall control. It would be for District Administration to determine whether the decision was made on the basis of native custom and accorded with substantial justice. It was also an important consideration – much more important to Hasluck than to Derham – that they were to administer native custom and as a result there would be separate institutions administering a separate and distinct body of law for natives.
Hasluck had become greatly disturbed at the way in which Courts of Native Affairs operated. In A Time for Building* he had written that, "quite early in my experience, without the benefit of any advice, I had become aware of two existing tendencies. One was to regard the administration of justice as a means for helping the Administration do its job; the other was to apply the law in one way for the native people and in another way for expatriates. My reaction against both these tendencies coloured my direction on policy".
This applied particularly, in his view, to the way Courts of Native Affairs were administered by District Officers.
In the course of his Minute rejecting the Native Courts proposal, Hasluck said "I would also raise in passing the question whether the present proposal amounts to anything more than an elaborate sham. Is this in reality a proposal to add some lower courts to the existing judicial tribunals or is it only proposing something that looks judicial but is in fact designed to meet the convenience and serve the purposes of the administration of native affairs?" (Italics added). The italicised words accurately represent Hasluck's basic thinking.
To Hasluck, therefore, who was already disturbed by the fusion of the administrative and judicial functions, the introduction of Native Courts, as proposed in the Ordinance, was an aggravation of something he found objectionable.
Professor Derham was asked to consider Native Courts and native custom. As we have said, he expressed agreement with Hasluck's 1955 decision and shared his aversion to the conjunction of the administrative and judicial functions. In his Report he commented that, "the basic weakness in the system for the administration of justice at present lies in the relation between the executive and judicial arms of government at all levels. The Territory is experiencing a transition from pure executive government of a paternal kind to a form of government more in accord with western notions of parliamentary and constitutional government. It is progressing from direct rule by the executive towards rule by and in accordance with law." He opposed Native Courts operating outside the judicial system and supported abolition of the Courts of Native Affairs.
There were differences between Hasluck and Derham but not on the fundamental of bringing all courts within the judicial system.
But Derham recognised, in a way that Hasluck never did, there was a problem with native custom or at least a problem if it were disregarded. Hasluck never regarded native custom as having significance except in a peripheral way and indeed he distrusted its recognition as giving rise to a dual system of law in the Territory. He conceded that his fears on this score may have been influenced by his pre-war work on the aborigines:* Derham was 'not unduly disturbed by the evils of a dual justice system'*
Derham's central recommendation* was that "as soon as possible, and certainly no later than the time when Resident Magistrates are available for appointment, Courts for Native Affairs and Courts of Petty Sessions should be merged into one jurisdiction and all persons in the Territory should be subject to that jurisdiction without distinction of race or colour" and that "steps should be taken to train selected natives for appointment as Resident Magistrates." This recommendation was to be given effect later in the Local Courts Ordinance 1963. To this extent he was only recommending indigenization as a single system. But Derham supplemented his central recommendation with proposals that were to be implemented during the period of training and establishment of Local Courts.
Courts of summary jurisdiction "specially concerned with native matters" consisting of native membership and applying native custom were to be set up.* But they were to belong to "the judicial system of the territory". They were to "disappear when trained natives were available for appointment as magistrates"*
Separately he proposed the appointment of Justices from leading natives who were "outstanding in their community" and who would sit alongside Magistrates. It would seem that the Justices were to have similar powers to Justices of the Peace in common law countries. They were to have power of decision and two of them could have superseded the Magistrate in any particular case. With these also Derham appeared to have in mind that they would cease when Local Courts were fully functional.
Derham was not clear about the sequence which he envisaged for giving effect to these two proposals. In the event neither was in fact implemented, (with the possible exception of the provisions in sections 7 and 9 of the Local Courts Ordinance enabling Assistant Magistrates to be appointed: these had however no power of decision).
Despite the interim nature of these proposals they appear to represent an important difference from Hasluck's position. The period of training magistrates and setting up the Local Courts was not expected to be short and in fact it took somewhere in the order of ten years. The measure of the contrast in view can be gauged by reference to Halsuck's final minute on the Local Courts Ordinance.*
Whatever the differences between Hasluck and Derham they did not emerge at this time. The Derham Report only became public in 1973 and Hasluck's October 1961 address to Parliament did not highlight the differences between them.
Professor Derhams' views on Native Custom
It is evident from what has been said that whether to introduce Native Courts and whether to apply native custom were not simple questions. In the situation of the
Territory, those questions were inextricably connected with the court system and its control: whether native courts were to be subject to the Administration or part of the Judicial system: whether native custom was to be part of the ordinary law applied by all courts or whether it was to be a separate system of 'law' applicable to natives. In the view of Hasluck and Derham these were not mere bureaucratic issues but the answers to them would determine whether the rule of law was to govern the legal system of an independent Papua New Guinea.*
In his 1963 Chicago Law Review article Derham wrote: "… there is a further classification of customs that is vital to the understanding of the problem facing a colonial administration. The classification turns on the difference between rules… that go directly to the regulation of conduct and relationships in an established and reasonably certain way, and rules that go merely to the ways in which the community decides questions as to how conduct or relationships should be regulated as disputes arise from time to time. Probably in all Papua and New Guinea communities there are some rules of the former kind (for example, rules prohibiting certain kinds of marriage). But they are few in number compared, for example, with most emerging African communities. Most of the so-called 'customs' of the communities of Papua and New Guinea is concerned with the method by which the communities decide how disputes shall be resolved. Commonly this is by the use of the 'village meeting.'*
Derham was very clear about this. The next two pages of his article (pp.503-504) set out a description of such a mode of dispute settlement. In his Report (para 10, pp.14-15) he sets out an elaborate description of a mediatory dispute settlement in Papua New Guinea.
But to give effect to this approach to custom, which he accepted as inherent in Papua New Guinea traditional society was not, he thought, possible (except for the transitional native courts and Justices mentioned above which he had proposed). Derham regarded self-government as a strait-jacket. Its requirements of central control and national formal law were incompatible with native communities conducting their own judicial functions according to their own customs. Native custom would be unable to provide a legal base for constitutional and economic development and for resolving the kind of disputes which would arise in the course of them. An independent Papua New Guinea would witness a merger of communities taken out of their traditional backgrounds. It would not be possible to isolate the customary rule which would appropriately apply to such a mixture.
Derham could thus see no way of integrating mediatory processes and the variable nature of rules involved in native custom into a court system based upon legalism and which had as its object the rule of law. He recognised the problem but thought it would be interim. It followed that he suggested no solution except to forbid unofficial dispute settlement, hasten the training of indigenous magistrates and the introduction of the local courts over which they would preside, and in the meantime to introduce the interim measures for native participation in the court system referred to above.
The Native Courts Ordinance - David Fenbury
The draft Native Courts Ordinance 1955 was intended to introduce native participation into the Court system but as David Fenbury, its principal advocate, was later to explain, it had not been the intention of the draft Ordinance to change the procedures of the existing native courts, by which he meant the Courts of Native Affairs and even less the substantive law applied by them (chiefly the Native Regulations) but only to change their composition. What would change was that natives would be appointed as magistrate to these courts. They would settle disputes under the supervision of District Administration Officers. It would seem Fenbury envisaged native custom playing much the same part as it currently did in the Courts of Native Affairs. In those courts it seemed to operate somewhat as follows:
"A village meeting would typically be held to discuss a wrong which may, under the regulations be either criminal or civil, but that of course was a matter of indifference to the indigenes. If the matter was settled no more would be heard of it. If it was not, and the matter then came before the Native Affairs Officer, he would investigate informally what it (was) about. He might decide to treat the matter as a Court matter under the Native Affairs Regulations. He was more likely, however, to attempt to settle the matter on an amicable basis between the parties. If he could arrange a settlement by a payment of compensation and see that the compensation was in fact paid, then that would be an end of the case… The Native Affairs Officer would say he had acted as arbitrator and had not sat in his Court …. In truth, the Native Affairs Officer settled the matter by suggesting a solution which was accepted because he was backed by Court powers and enforcement powers. In such a case as that no record of any kind would be made… If then the matter came before the Native Affairs Officer he could not settle the case in the way described without the acceptance of the parties, and if he perceived the complaint must be treated as a criminal one, he would sit formally as a court."*
These informal and technically illicit traditional procedures were used by Courts of Native Affairs very frequently. Derham describes the practice as 'three-pronged' – village meeting, council committee consideration and then, if the dispute were not settled, it went to the kiap.
Even at a different level a murder case might be compromised, although that would be exceptional.*
An instance of a Court of Native Affairs completing criminal processes, imposing the sentence and even supervising the transfer of the moga (group compensation) without which inter-clan fighting would have continued was described by Sinclair in Behind the Ranges* "Pijuee climbed to his feet and spoke earnestly. 'Kiap' Pijuee says, 'what about the moga?' translated Angobe. He says, 'the Government law has straightened this cross, but it is our fashion to finish a cross with moga. Will there be pay for the spears, and for the man who is dead?. Now, of course Angobe. Tomorrow they must bring pigs and start the moga. Then the troubles will be finished… Next day the men behind the Yugu sub-clans came to Pribani carrying great bloody sides of roughly dressed pig."
Similarly processes in the Minj sub-district of the Western Highlands in the late 1950s were described by Marie Reay. "The kiaps encouraged luluais and tultuls to hold unofficial courts modelled on their own Court of Native Affairs… The tultul of a sub-clan had to adjudicate in cases that ranged his own sub-subclan against another sub-subclan, and the luluai had to adjudicate in cases involving his own sub-clan. It was such cases the kiaps had in mind when they specified a clear channel of authority and appeal from tultul to luluai up to kiap."*
Everything in the draft Native Courts Ordinance points to Fenbury wishing only to formalise the use of native custom in this way and subjecting it to overall control by District Administration. As Peter Sack said, "the 1954 draft of a Native Local Courts Ordinance in which Fenbury was heavily involved, gives some indication of the approach he has in mind. To begin with it confirms that he had indeed had no plans to build on traditional institutions… Where 'custom' appears in the draft – and this is not often – the purpose is to limit its role, not to strengthen it. 'Native custom' is listed among the definitions, but only to establish that it also covers 'native custom' as declared or altered by rules 'made by a native local government council'. Section 11(4)(c) prescribes that the new courts were to have jurisdiction, inter alia, in 'all matters arising solely out of and regulated solely by native custom', but only 'insofar as that custom is not repugnant to natural justice and morality and is not in principle in conflict … with any law in force in the Territory or a part of the Territory'. However, the key to understanding the main aim of the draft lies in a series of provisions which imply that these courts were to be guided neither by 'custom' nor by 'law' but by the requirements of 'substantial justice' (see, especially section 24(5))".*
This construction of Fenbury's views is consistent with the part he played as chief administrator, at the operational level, in the introduction of Native Village Councils. Both Native Courts and Native Councils had their genesis in the Papua and New Guinea Act 1949. Councils could make rules but these were supervised and subject at every point to Administration Officers. Councils also had such powers and authority as were conferred by native custom. In 1953 Fenbury argued 'that Councils had two essential functions: To take the lead in introducing those modifications of native customs that were necessary in the interests of economic development.'* (Italics added). Sack saw this as Fenbury's long term view: "The kiap, the generalist administrator running his domain on quasi-feudal lines – with a strong emphasis on personal loyalties and responsibilities – was for him not a necessarily temporary evil but a permanent ideal. For Fenbury the incorporation of the local population into the kiap system did not only produce, for the time being, better justice but it was in the best interests of the people if some such system was permitted and encouraged to continue indefinitely". There is much to support this. Notably, Fenbury never referred to the separation of native customary dispute settlement, in whatever form, from Administration control.
During the 1960s disputes were increasingly dealt with by local government councils. This was so despite a complete absence of legal authority. That was precisely the situation Derham had feared when in his 1960 Report he referred to the conduct of 'unofficial courts' by Councils according to 'no known rules of law' and to the 'picture being one which gives some cause for alarm'.*
Barnett* refers to the 'well established practice of local disputes being dealt with by local government council through elected ward representatives known as Komities … the council settlement receives de facto support from field officers'. Whatever the reasons for increased dispute settlement by Local Government Councils for their delegates there was no question that these unofficial courts threatened the viability of the Local Court system the Administration was seeking to introduce.* And certainly the Councillors were very jealous in maintaining their illegal judicial status.*
Whilst Hasluck and Derham deplored these developments the Administration could do no more than move to establish the Local Courts as soon as possible (relatively few were established by the end of the decade). Fenbury blamed the rejection of Native Courts for the growth of unofficial Court dispute settlement.
In the course of a well-known criticism of the Hasluck-Derham position he said, "it is a disquitening (sic) fact the indigenous community of T.P.N.G. has for many years been operating a wide-spread, completely unsupervised, and technically illicit legal system which has no contact with the Territory legal system. This development has dangerously reinforced the concept of legal separatism in indigenous thinking, which can be briefly illustrated by two common Melanesian pidgin expressions – the Territory Courts are 'kot bilong gavment' (government courts); the unofficial village tribunals are 'kot bilong mepela' (our courts)… If we had taken this step 15 years ago i.e. establishing native courts, we would now have come some considerable distance towards achieving acceptance by the indigenous communities that the government courts were their courts."
For Fenbury the problem had a ready solution. All that was necessary was to 'officialise' the unofficial courts by subjecting their appointments and the exercise of jurisdiction to control by the Department of District Administration.
It would be unfair to impute to Fenbury any future scenario. As far as I am aware he did not make one. It must be remembered that the Native Courts Ordinance was a product of the 1950s and although Fenbury strongly reiterated support for it in 1965 one cannot help but think the time of its preparation must have affected his perspective.
Nevertheless, any serious consideration of his Native Courts proposal must unavoidably lead to an analysis as to how it would have worked in a self-governing Papua New Guinea.
Native Courts would on this assumption have been integrated into the Administration and appointments to those Courts, supervision of their operation and general administration would have been independent of judicial control and only to a limited extent subject to law.
We must suppose the Department of District Administration (or whatever other name by which it would have been described after self-government) would have become localised. Any notion that expatriates would have retained responsible field positions, at least after Independence, is too unrealistic to contemplate. Those Papua New Guinea officers would, by the nature of things, have been relatively inexperienced, undertrained and, compared with expatriate predecessors, underpaid.
The remarks by Ian Downs are apposite:
"The failure of the Department in the first ten years after the war to be a pioneer in the localisation of its personnel was an omission with serious consequences. In 1960, when Professor Derham made his survey there were no indigenous members in the administrative field staff. As late as January 1964, there were no indigenous patrol officers and only 12 assistant patrol officers, one welfare officer and 1 LGO listed in the field postings of the Department. European patrol officers in the post-war period took an average of six years to qualify by examination and seniority to reach the rank of Assistant District Officer and another five to become District Officers and usually four more to reach District Commissioner level."*
But on Fenbury's proposal, it would be these newly appointed indigenous officers who would have been responsible for ensuring:
(a) that there was no corruption in the appointment processes of Village Justices nor in the operation of Village Courts
(b) that there would be no bias in the proceedings; and
(c) that the proceedings accorded with 'substantial justice'.
This supervisory role would not be carried out in accordance with some open process but in the course of general administration. Without some appellate or review-type process appropriate to a Court, District Administration would carry out its supervisory role without any transparent check.*
Indigenous officers responsible for this would, if they had kin links with appointees to the village courts or to litigants appearing before them, be themselves open to suspicion of bias.* The kind of problems are dealt with in detail by Marie Reay in Contention and Dispute.* Thus, "the 'big Councillor' (kaunsil ogma), certain of his position, was now able to hold Courts involving people or other clans and summon them to attend. He was powerful enough to get away with being sole adjudicator of a case in which he was himself the plaintiff, and to require his own adversaries to pay up handsomely. His threat of a kiap's Court and a gaol sentence was effective in forcing them to give him the pigs he wanted; he was a powerful man, in favour with the kiaps, and they could not be certain he was exaggerating his power".*
It is not entirely clear what was intended under Fenbury's proposal with respect to police powers of District Officers. Presumably, in rural areas they would have retained their police authority. If Village Courts were exercising their limited criminal jurisdiction and the police were involved, the District Officer's supervisory jurisdiction would in that event have been quite incompatible with any notion of independent justice.
A broader question is involved – how would the almost 'no-law' area which would prevail at village level interact with the national legal regime.
The Local Courts Ordinance 1963, the Native Customs Recognition Ordinance and Native Custom (1965-1970)
We must conclude this discussion of the rival views on Native Courts and return to what in fact happened. On the 3rd September 1962, Hasluck gave a succinct and emphatic direction to the Administration about the Local Courts Ordinance which was then being prepared:-
"1. There is to be a single system of courts administering a single body of law;
2. By a single system of courts I mean –
(a) there shall be equal access by all races to all courts;
(b) there shall be no court constituted to deal only with native offenders or litigants and there shall be no court in which in practice only native offenders or litigants appear or which the law applied or the procedures followed is different from those applied or followed in other courts."*
The Local Courts Ordinance, enacted in 1963, did not come into operation until 1 January 1966. In many respects the Ordinance conformed with Hasluck's strictures. Of central importance, the new Local Courts were to be integrated into the new judicial hierarchy. The Ordinance provided for 'equal access by all races'. In conformity with his Minute the court was not 'constituted to deal only with native offenders or litigants' (although, of course, as the lowest court in the judicial hierarchy the court would inevitably attract mostly indigenes). All appointments to the Local Courts bench were 'professional' as Hasluck had directed. His Minute had added that he had no objection 'to associating honorary Justices or assessors with professional magistrates particularly during a period when the indigenous people are being trained to discharge magisterial junctions'. This justified the provision in the Ordinance for the appointment of Assistant Magistrates. Hasluck had directed the institution of a training scheme for indigenous Local Court Magistrates in 1962 which included a special course for Assistant Magistrates.
Although, as we have said, the Derham Report was not permitted to be published, a document entitled 'Derham Report – a summary of recommendations and action taken' was tabled in the Papua New Guinea House of Assembly in September 1966.
It was there stated that the Local Courts Ordinance itself was based upon the Derham recommendation that 'summary jurisdiction courts especially concerned with native matters should be established so as to be an ordinary part of the judicial system of the Territory'. It was further stated that sections 13(c) and (d) and section 14(1)(a) and section 17 of the Native Customs Recognition Ordinance were based upon the Derham recommendation 'that such courts ought to have a discretion to decide many matters in the light of native customs but the classes of matters must be specified, and the requirements for acceptance of custom must be laid down'. In addition, section 31 of the Ordinance provided for mediation in civil proceedings instead of proceeding to hear and determine the matter according to law.
We know from an historically invaluable letter written by C.J. Lynch, drafter of the Local Courts Ordinance in December 1978* the source of this provision:
"Incidentally, it might be noted that many of the ideas in the Native Courts Bill were subsequently taken into the Local Courts Act 1963 in particular the idea of settling as many matters as possible by mediation: in fact, I used a draft of the Native Courts Bill in the preparation of the Local Courts Act although, Fenbury I fear, uncompromising as ever, regarded this 'compromise' as treason to the cause. The emphasis on mediation was, of course, simply an extension of the practice in the better 'kiap's' courts and I for one had hopes that mediation would spread to the settlement of most civil and many petty criminal proceedings (as it had done in those courts)."
Section 13(1)(c) of the Local Courts Ordinance 1963 conferred jurisdiction on local courts in "all matters arising out of and regulated by native custom, other than matters as are within the exclusive jurisdiction of the Land Titles Commission". This provision is inseparably connected with the Native Customs (Recognition) Ordinance 1963, which also came into force in January 1966.* "The Native Customs (Recognition) Ordinance provided that native custom shall be recognised and enforced by … all courts", subject to the Ordinance. (S6). Section 4 defined custom as 'a reference to the custom or usage of the Aboriginal inhabitants of the Territory obtaining in relation to the matter in question at the time and place in relation to which the question arises, regardless of whether or not that custom or usage has obtained from time immemorial."* *
The Native Customs (Recognition) Ordinance provided that native custom should not be taken into account except, in civil cases, in matters concerning native land, devolution of native land on the death or birth of a person; trespass by animals; marriage, divorce, and custody in accordance with a marriage entered into in accordance with native custom; a transition which the parties intended to be regulated by native custom; the reasonableness of an act or the state of mind of a person. (S8).
In criminal cases native custom was not to be applied except in ascertaining the state of mind of a person; deciding the reasonableness of the act, default or omission or deciding the reasonableness or otherwise of an excuse (S.7).
In addition, the Ordinance provides for certain overriding exceptions to the recognition of native customs. Native custom would be inapplicable if it were to be repugnant to the general principles of humanity; or inconsistent with an Act, Ordinance or subordinate enactment in force in the Territory or if its recognition … would result, in the opinion of the Court, in injustice or would not be in the public interest.*
No reference was made to the relationship of native custom to the common law. Section 6 subordinates custom to legislation only. It would seem native custom would predominate over the common law.*
The breakdown of law and order: The Curtis-Greenwell and Desailly-Iramu reports 1970-71
By the late 1960s there was what Andrew Strathern described as an 'efflorescence of violence in the highlands' leading to calls in the House of Assembly for a restoration of the death penalty or mandatory life imprisonment for murder. But crime was also greatly increasing in the towns. The Speaker of the House of Assembly, John Guise, reiterated common concerns in an address at about this time, when he said 'the increase in urban lawlessness which we must anticipate is growing… the stabilising effect of the unwritten traditional customary laws which govern our village societies and contain lawlessness is beginning to crumble before the onslaught of urbanisation'. And on the Gazelle Peninsula a full-scale dissident movement was, by 1969, challenging the establishment of the multi-racial Council and law and order generally.
Colonialism inevitably involves an emphatic intrusion of westernisation into non-western, and particularly traditional, cultures. Alan Moorhead once described this as the 'fatal impact' and sometimes indeed it was. At all events a traditional society was never the same after experiencing western colonialism. But this transforming cultural impact intensified immeasurably during the period of decolonisation. Economic development necessary for the new nation radically changed ancient agricultural practices; urbanisation broke traditional ties and education created new aspirations.
Papua New Guinea was no exception to this. By 1970 it was in a highly mobile state – politically, economically and socially.
In his Colonial Sunset, Les Johnson, the last Administrator, explained the situation:
"Outwardly life in the Villages seemed much the same. For those with cash there were some exotic commodities which could be purchased at the trade store, still mostly expatriate-owned. Rice, canned fish and meat and beer were available which meant less reliance on the traditional food crop. There were radios which told of the outside world and there were visitors from other tribes and other countries to buy the crops now produced locally. In many villages there was a school which, for better or worse, changed the aspirations of the young, and there was a movement of young men away from the tedium of village life where exciting ceremonies were now less frequent and where tribal wars were forbidden or at least their practice restrained. The biggest change of all, in part produced by cash cropping was the arrival of the road. The road was the umbilical connection uniting the part with the whole. The future of the village was now inescapably linked with that of the developing nation."*
Subsequently in a further passage*
"The road brought us problems… the road as far as most Papua New Guineans were concerned, was the road from Lae into the Highlands. It was begun by an energetic District Commissioner in Goroka, Ian Downs, who enlisted the labour of tribesmen to cut a track to the coast. In the 60s it was gradually upgraded, and an all-weather road (mostly) climbed up the mountains from the coastal plains, reached Goroka and extended to Mt Hagen in the Western Highlands. In the 70s it reached Mendi in the Southern Highlands. It was the road which revolutionised Highlands transport. Previously all freight in and out of the Highlands was carried in by air… the road made trucking possible and reduced costs greatly. But it also made for very many accidents caused by inexperienced drivers, poor conditions and the like, and for every death there was a demand, from fellow tribesmen of the deceased for exorbitant compensation payments, or a payback killing was planned. Sometimes enraged villagers killed the driver of the offending vehicle on the spot."
And so, a departure from subsistence agriculture, receipt of cash, a new means of transport produced a shock to traditional society inevitably leading to conflict. By 1967 disputes over the ownership of land were raging, exacerbated rather than mitigated by the Demarcation Committees which sought to achieve agreement.
Large scale migration to towns – Port Moresby, Lae, Madang and Rabaul – began at this time. And if the population of towns only accounted for 15% of the population, 52% of indigenes under 24 lived in the towns. C.D. Rowley writing of this time said that 'the breaking down of village discipline is part of the process of becoming competent as a town-dweller. Delinquency is certain to increase as towns grow. People do not suddenly, and at a convenient point in a change of social changes, acquire ready-made a new set of traditions; yet contact with the town society makes it impossible for them to carry on in accordance with the old'.
The immediate law and order concern of the government and the Papua New Guinea Administration was the rise in violence in the Highlands (putting aside the special and highly political problem of the Mataungan Association in the Gazelle). But they could not disregard the increasing crime in major urban centres.
1970-1971 – Inquiry into Village Justices
On 5 March 1971 the Minister for External Territories, Mr Barnes, agreed to a request by the Administrator for a fresh Inquiry into Native Courts or Village Justices, as they were now described. The Inquiry was to be carried out by Lindsay Curtis, Secretary for Law in the PNG Administration, and myself. I was then head of the legal area in Territories.*
To understand this Inquiry and the form it took it is necessary to recognise that by this time opposition to Native Courts in any form whatsoever had almost become doctrina definita in policy on Papua New Guinea. This was of course a hangover from the Hasluck days. But Les Johnson, the Administrator, and others were becoming extremely concerned about the rising law and order problems. Accordingly, when Curtis and I had been asked to make an Inquiry into lower court jurisdiction the Administrator was able to get the question of Village Courts tacked on to this Inquiry. It was in form incidental to our larger Inquiry. The need to justify any re-examination of Hasluckian policy runs through our report.
We would have made unconditional recommendations but for an extraneous event occurring during the course of the Inquiry. New Land Legislation was introduced into the House of Assembly. It had been prepared by a joint working party of Australian officials from the Administration and the Department of External Territories. Its introduction into the Papua New Guinea legislature produced an explosion. The legislation sought to individualise traditional land tenure and it was not just the substance of the legislation but the source from which it had emanated which excited hostility.
Next time Curtis and I met on the Village Justices Inquiry he said, no doubt correctly, that it was too late in the day for white officers to submit proposals on a topic of this kind with any hope of them being acceptable to Papua New Guinea legislators. He advised that we needed to have an indigenous oversight. What actually appeared in our report was the following:
"Were it not that the Secretary for Law has found considerable reservations about the operation of the Village Court system in some Highlands areas, we would have been prepared to make a firm recommendation for its introduction… Accordingly, we think that a closer examination of the matter at village level than has been possible for us is required before a definite policy is adopted."
This led to a further Inquiry by Francis Iramu, a respected Local Court Magistrate, and Ian Desailly, a Stipendary Magistrate.
Curtis had in fact received surprising and troublesome queries in the Highlands. But the real catalyst was the unspoken expectation of anti-white hostility in the House of Assembly to any recommendations we might have made.
Turning to the report itself which was submitted in December 1971, we said that
"In rethinking the issue of village courts ten years later we accept much of the reasoning that underpinned the then policy. The point is however that the policy and the reasoning underlying it envisaged a closely integrated system which involved the following steps: (i) the extension throughout the Territory of a Local Court Magistracy … (ii) the extension of the police into rural areas (iii) the consequent elimination of judicial and police powers exercised by District officials and (iv) the abolition of village constables, luluais and tultuls.
In effect, Government policy involved a 'package' and a failure to implement the positive aspects of it was bound to result in a law enforcement vacuum at the village level. We think that this is in effect what has happened."
We drew attention to the fact that 'village constables, luluais and tultuls were substantially abolished. The Police and Judicial functions of the District official have been gradually withdrawn… No fully effective police presence has been established in many rural areas. There has not been an expansion of the Local Court magistry throughout Papua New Guinea. The first indigenous full-time magistrates did not commence duty until 1966, there are today only about 40… it is evident that the Local Courts have not been able to penetrate to the village level in many parts. We think that many villagers feel that the system of law the Local Courts administer is an alien system, to be resorted to only when customary procedures of dispute settlement fail'.
It followed from this, we went on to say, that it was 'imperative that this vacuum should be filled without delay' and that this justified re-examining the question of Village Courts. We added as further reasons for re-examining the issues the fact unofficial tribunals were filling the 'vacuum' and also the abbreviated time span for self-government and the likelihood that Village Courts would be set up following self-government in any event.
We then described the essential difference between the situation that existed in 1960 and 'that obtaining today'. 'The only way Native Courts could at that time (1960) have been linked with central government was by placing them under the control of District Administration. This was inevitable because there were no courts sufficiently close to village level to maintain supervisory and appellate control. … the position today is quite different. The establishment of the Local Courts has provided a means of linking the Village Justices with the courts system. The Local Courts have not penetrated to village level in many parts and will not do so for some years to come. Nevertheless they have expanded sufficiently to provide a structure for linking the Village Justices with central government'.
As mentioned previously we recommended that the government announce its willingness to review policy on the establishment of village courts but that it should initiate a further Inquiry 'involving indigenous representation to report to the Minister on whether Village Justices should be established and the attitude of the people'. In paragraph 85 we expressed the view that three principles should circumscribe any further Inquiry or consideration. These were '(a) the appointment of Village Justices and their suspension and dismissal must not be made by local government councils although councillors would not be barred from appointment; (b) the justices would be subject to control by the course and (c) any system of Village Courts should be introduced on a step-by-step basis'.
To advance consideration of the matter we put forward certain specific proposal for legislation:
· The Administrator would be empowered to appoint Village Justices in rural areas after consultation with local government councils. Appointees would be traditional leaders.
· Selection of prospective appointees would be made by two Local Court Magistrates and an Administration officer after consultation with Local Government Councils.
· The Village Justice would be required to sit in a definable place but preferably not in the Council Chambers. The place of sitting would be specified in the warrant appointing each justice. The area of jurisdiction would cover an estimated morning's walk from the place of sitting.
· Jurisdiction of each justice would be defined by warrant. They would be permitted to apply native custom only. Jurisdiction would be confined to simple stealing, common assault, wilful damage, adultery, pig trespass, ordinary debt to the amount of $50 and bride price claims.
· No power of imprisonment would be available. The Village Justice could direct compensation to be paid and they would have power to impose a fine up to $50.
· The only procedural requirements would be that
(a) all disputants should be present at the proceedings; and
(b) a record must be kept.
Failure on either ground would entitle the Local Court Magistrate to set the decision aside (Local Court Magistrates would be required regularly to inspect the records kept by the Village Courts).
· An aggrieved party would have a right to appeal to a Local Court Magistrate if the proceedings were oppressive or if justices had exceeded their jurisdiction or if all parties were not present.
· Village Justices would not be renumerated although they might be paid a special allowance if their capacity to earn had been interfered with.
* * * *
As foreshadowed the history of this matter must stop incompletely at this point. De facto authority over the matter passed to the Papua New Guinea Administration and after the April 1972 elections to the Papua New Guinea Government.
Neil Desailley and Francis Iramu completed very efficiently by May 1972 the report we had recommended. They had consulted extensively in rural areas. They emphatically recommended abandonment of the policy of opposition to Native Courts. They rejected the implication in our report that the need for Village Justices may only be short-term in order to meet the shortage of Local Court Magistrates. In this, I think, they were clearly correct.
Thereafter legislation was introduced and there was much debate. We took little part in this. One feature of the legislation was the drift towards greater authority of Local Government Councils.
At the final stages in 1973 the legislation had to be presented to the Minister. This was a constitutional anachronism. For various reasons legislation had in a formal sense to be approved by the Minister before it became law. This led me to make a belated and vain attempt to have the authority of Local Government Councils diminished. My views were embodied in the Minute to the Minister appended as a note to this paper.
Final Remarks
The history given here is incomplete in point of time because it ends in 1972 before independence when Papua New Guinea assumed de facto control of the administration of justice from Australia. It is incomplete also in that, apart from personal recollection, it relies exclusively on published works. A different light may be thrown on aspects of it when the files are examined My chief purpose though has not been historical but to isolate the very acute problems, almost of a jurisprudential kind, to which introduction of western law gave rise.
With this in mind I have reached the following views:
1. The law and order problems of Papua New Guinea in the sixties were due chiefly to the rapidity of economic and social change resulting from the movement to independence. The so-called law and order 'vacuum' which was said to have occurred when judicial or police powers were removed from District Administration greatly exaggerates the significance of those changes. Very substantial law and order problems were unavoidable given the move to independence and the move to independence itself was inevitable. The only question is whether steps taken in the field of justice aggravated or steps not taken could have mitigated, the difficulties bound to arise. I mention this first because of the prevailing view that all problems derived from the withdrawal of District Administration powers or that Papua New Guinea could have remained petrified as a colonial state, or – more recently – that all problems would have been solved by the introduction of native courts. These through repetition have become akin to myths. In examining the matter now it is necessary to put aside these somewhat superficial or ergo post propter hoc assumptions.
2. Hasluck and Derham were right, as against David Fenbury, in rejecting the introduction of native courts as part of or subject to the Administration. That would have permanently jeopardised the introduction of a system of law necessary for a nation state and the rule of law. The same objection would have been open to Native Courts being subject to Local Government Councils.
3. Halsuck was wrong – and as I read the historical material Hasluck rather than Denham was in error on this – in rejecting the introduction of native courts on the ground that to do so would have introduced a dual system of law into Papua New Guinea. It was highly desirable that native courts be introduced as a 'bridge' between indigenous social regulation and introduced law, provided those courts were within the national judicial system.
4. It follows from this that native courts should have been introduced as soon as they could have been integrated into the judicial system – in effect when they could have been subject to the supervision and control of Local Courts.
5. Accordingly in his October 1961 address to Parliament Hasluck should have announced the introduction of native courts and set about their introduction concurrently with the establishment of Local Courts under the proposed Local Courts Ordinance. Derham's 'interim' recommendations would have justified that course. Under the system as actually introduced, District Officers became Local Court magistrates on a temporary basis pending the training and permanent appointments thereafter of Local Court Magistrates. In that interim period luluais, tultuls and the other native officials should have been available to give effect to mediation under section 31 of the Local Court Ordinance appropriately modified. They would have been supervised by the District Officer – Local Court Magistrate acting in his judicial role. Upon a permanent Local Court Magistrate being appointed to a given area, the appointments of both the District Officer as Local Court Magistrate and native officials would have come to an end – the latter would have become available for appointment to the newly formed Native Court which I have envisaged being established.
6. The question remains whether failure to introduce Native or Village Courts in the gradual and limited way suggested and concurrently with the introduction of Local Courts had any bearing on the law and order situation as it emerged in the 1960's. In my view very little. It certainly did lead the newly formed Local Government Councils to enter into unofficial dispute settlement on a fairly large scale (which incidentally demonstrated the felt need for that kind of dispute settlement among Papua New Guineans). But of course, to the extent the Local Council Komities did in fact settle disputes, they achieved what Native Courts would have achieved. In one respect though unofficial Local Government dispute settlement suffered from a disability which did not apply to either the Courts of Native Affairs or the subsequently introduced Village Courts. Local Council Komities had no effective way of enforcing a settlement if it should break down. My own view is that, whilst a factor, this was of subsidiary importance in the overall law and order situation. And the same can, I think, be said of the withdrawal of District officer judicial powers. One would though be less confident of such a view in regard to the termination of police powers in the early 1960's. But those urging the view that this was unnecessarily destabilising must explain how District Officer police powers could have been preserved consistently with the development of a viable police force for an independent Papua New Guinea.
The rule of law and district administration in Papua New Guinea (1960)
Hasluck's prime objective was to establish the rule of law in a future Papua New Guinea. He had no illusions about the difficulty in achieving this. In the final sentence of his October 1961 address to Parliament on the administration of justice in Papua New Guinea he said, 'our present task is to build an implicit acceptance of the rule of law in Papua New Guinea on foundations that will outlast political change. To do that we not only have to create institutions, we have to educate a whole community.'
To achieve this both Hasluck and Professor Derham believed that separation of judicial functions from Administration was an essential condition.
During the pre-war years and in the immediate post-war period the Department of Native Affairs carried out most of the responsibilities and most of the functions of government in the field. In 1946, the Administrator, Colonel Murray, made the District Officer (re-named the District Commissioner in 1951) responsible for all the Departments in his District. By 1951 the situation was changing and technical Departments began to be represented at the field level. This led to important changes in the line of control in the Districts but did not affect the Department's effective control over Courts of Native Affairs.
Until 1953 there were small and separate Police Forces in each Territory. In that year they were merged into the Royal Papua and New Guinea Constabulary. The police were mainly stationed in towns but detachments of native police were posted at outstations and District centres. There they were subject to the District Officer who held a commissioned rank in the Field Constabulary Branch of the Police Force.
The District Officer's role as magistrate presiding over Courts of Native Affairs has been explained and described in the text. Also described was his role as gaoler and prison officer.
Against this background, I turn to the rule of law. This note does not traverse the question whether the rule of law was a desirable or achievable objective for Papua New Guinea. It only seeks to justify the proposition that if it were to be introduced the separation of the judicial and administrative arms was essential.
The rule of law serves two purposes. It restrains the exercise of power by subjecting it to pre-existing law and it defines in a predictable way the use of power.
The first function requires the executive not only to be subject to law but to be examinable by the courts and thereafter to give effect to the law as declared by the courts. It also means that the organs of power which enforce the law are subject to it. So the police are controlled by law in the manner of their investigation – they cannot without warrant enter homes, seize things or documents, demand answers to questions, use force to secure information nor can they detain persons except upon objectively defensible grounds and then only for a limited time. Prosecution must be independent and only justifiable if there is a prima facie case in law and, equally, the prosecutor should not fail to prosecute if there is a prima facie case in law; Judges, whose decisions are subject to appeal, must conduct trials according to law, giving effect to the presumption of innocence by recognised standards of proof and applying the criminal law according to its terms and only to offences which existed at the time of the alleged offence and so on.
But the rule of law not only restricts power but defines its exercise. The doctrine of the separation of powers, insofar as it is a legal principle and not a mere political doctrine, exemplifies this. In a democracy it is the law which defines the relative powers of legislature and executive and confines them to their proper spheres. It is the law that confines the major concentration of power in the community – the military forces and police – so that under law they acknowledge and give effect to the primacy of the civil power.
All the incidents of the rule of law assume the 'law' to be a distinct body of rules independent of executive decision, decree, regulation or rule and that the executive is not only subject to this body of law but will enforce it, even against itself, when the courts have interpreted and declared the law in a particular way."*
But it is evident this can only be the position when the executive and judiciary are sufficiently separate. It also requires that the latter ascertain the law by processes of legal reasoning and logic which are not governed by, or subordinate to, administrative convenience. This needs specialists sufficiently expert in the 'law' to be able to administer it.
It seems to follow that if the rule of law were to be introduced in Papua New Guinea it was, as Hasluck maintained, necessary to separate the judicial functions from the Administration, for the Courts to be independent and for the Administration to be subject to the law.
The Minute, a copy of which follows, was sent by me to the Minister, Mr W.L. Morrison, in 1974. It was my last word on Native Courts and Village Justices.
The copy Minute is itself undated (the original was date stamped) but it is clear from its contents – and in particular the reference to administration of justices being a 'retained' power – that it was sent after self-government.
Papua New Guinea attained self-government on the first December 1973 and Independence on sixteenth of September 1975.
Self-Government ordinarily involves the transfer of responsibility for internal government excluding only authority over Defence and Foreign Affairs. This dichotomy was not followed exactly in the case of Papua New Guinea. Certain aspects of the administration of justice were not transferred at self-government. The 'retained powers' were of 'all matters pertaining to the Supreme Court and all courts established by ordinance together with Legal Aid'. These functions were retained by Australia at the request of the Papua New Guinea Government pending formulation by the Constitutional Planning Committee of arrangements for the post-independence judicial system in the Constitution. The Australian Government took no part in the preparation of Papua Guinea's Constitution and was therefore something of a stakeholder until arrangements were finalised. These were concluded in 1974 and the transfer of the Court system took place in that year.
Whatever the formal arrangements the de facto position in the interval was quite different. On these internal matters the Papua New Guinea Government was not inclined to take a great deal of notice of the views of the Australian Government at this stage. My recollection is that Morrison approved the recommendations in my Minute but, although conveyed to the Papua New Guinea Government, were not much discussed.
The object of his minute is to canvass proposals for Village Justices which have recently been received from Papua New Guinea. At the request of the Chief Minister, those proposals are to come before the AEC on the 4th April with a recommendation that Cabinet:
(a) provisionally approve the proposals and instruct the legislative draftsman to prepare a parliamentary draft bill to implement them;
(b) approve the circulation of the proposals;
(c) consider the preliminary draft bill in the light of comments received as a result of the circulation, before the end of April.
2. Attached is a copy of the proposals and the text of the AEC Submission. A summary of the proposals is also attached. You will note that the draft AEC Submission endeavours to reserve your position.
3. As you are aware the question of Village Justices has been under consideration for some time. This Department has supported proposals for the establishment of a system of rural justice based upon traditional methods of dispute settlement.
4. The present proposals constitute a revised version of those formulated by the Department and the Department of Law, and result from discussion with advisers to the Constitutional Planning Committee.
5. The administration of justice is a retained power within your responsibility. In addition there may be certain aspecs of it which bear upon Australian international obligations with regard to human rights.
6. The Department has certain reservations with regard to the current proposals. It has however supported the introduction of Village Justices. In these circumstances it is necessary to define the advantages and disadvantages of such a system in order to isolate the reasons for our present objections.
7. The essential idea of Village Courts is simply that they would be better able to settle disputes peacefully in rural areas where traditional society predominates than the ordinary courts applying Australian law. In these areas the traditional methods of dispute settlement are more acceptable and better understood.
8. Customary dispute settlement seeks to resolve the dispute by achieving a consensus in which, in so far as "rules" are applied, they are extended or limited by the need to patch up the argument. A modern law system cuts across this. It applies relatively categorical rules to the factual situation before it and ultimately its solution – whether punishment of compensation – is enforced by the central government law enforcement agency. Its relatively rigid rules (e.g. the division between criminal punishment and civil remedies) are inconsistent with the flexibility needed to achieve the kind of consensus traditional society aims at.
9. Apart from this basic difference, many of the rules in our system run counter to traditional feeling e.g. fault liability. In other instances the procedures built up are incomprehensible and unnecessary in a purely traditional context e.g. the detailed procedures to protect an accused in a criminal trial.
10. It is apparent that the differences in the two systems relate chiefly to the difference in the size of the societies with which they are dealing and the economic structure of each. Traditional societies are not merely small but a kin relationship of varying degress often exists between those involved. In these circumstances a consensus was possible. Economic transactions are of an immediate character and do not require a body of rules to deal with future contingencies.
11. The difficulty in introducing a system of village courts at this point is that PNG is not just a collection of traditional societies but is a nation with a developing monetised economy. In this area traditional methods of dispute settlement are quite inadequate to cope. Indeed before European contact the inadequacy of traditional methods was evident where societies came into collision. In the absence of settlement, payback was the only solution.
12. Once society consists of large urban aggregations and relations become interpersonal there must be general rules which are ultimately enforced by the State. A developing economy needs rules which are reasonably predictable in their operations. Investment in business enterprises the borrowing and lending of money and contractual arrangements generally cannot depend upon some indefinite rearrangement by consensus in the future.
13. The problem is thus to introduce a system of Village Justices but ensure that it remains contained to the type of society and kind of disputes in which it will deal successfully. This will not be the case if the jurisdiction of the Village Courts is so wide and its linkage with local government so close as to set up in effect different legal systems in different areas.
14. In order to achieve this a system of Village Justices should be
(i) Subject to the ultimate control of central government and integrated with the national court system. This does not exclude local authorities from consultation and close involvement but ultimate authority should rest with central government.
(ii) Their jurisdiction should be limited and fitted in with the national courts. Their authority should not be capable of indefinite expansion as a result of local political pressures.
(iii) They should be subject to supervision by the Local Court Magistrates, who are indigenous, and for this purpose the latter should have the authority to review.
2. The Department's objections to the current proposals are in brief
(i) There is too close a link with Local Government Councils
(ii) Their jurisdiction is too wide and ill defined.
(iii) There is inadequate provision for supervision and review.
Relationship with Councils
2. Under the current proposals
(i) Councillors may be appointed as Village Justices although they are to be excluded when the council makes a complaint.
(ii) The Administrator may declare a Village Court area but "the initiative in proposing an area and in defining its limits will be with district or local government administrative authorities".
(iii) All fines imposed by Village Justices are payable to the Local Government Councils for the area.
(iv) Village Justices may impose a penalty for "community work" for the area.
(v) Councils may direct the custom which Village Courts are to apply.
(vi) Councils may "determine" that the standard civil jurisdiction of Village Courts be extended.
(vii) Councils may proclaim offences to be dealt with by Village Courts.
(viii) Village Peace officers are to be created to enforce Village Court decisions and these are to be attached to Councils.
Jurisdiction and Authority
(i) There is no prescribed limitation on the area in which Village Courts can operate. As previously stated local authorities have the initiative with regard to this.
(ii) The Village Courts can deal with any dispute within its proclaimed area by agreement between the parties e.g. murder, rape, corruption.
(iii) Although a standard jurisdiction is stated this may be extended indefinitely by proclamation and Councils are to have the prime influence in determining wether it will be extended.
(iv) The criminal jurisdiction is undefined although it is limited by the amount of the penalty ($50).
(v) No other court can deal with the matter once it has gone to the Village Justices except in the case, when punishment is involved, of indictable offences.
Review and Appeal
Although there is provision for appeals to the Local and District Courts there is no power to review.
2. It is suggested that the authority of Village Justices ought to be more closely defined and the powers of Councils limited.
3. Jurisdiction over serious offences should not depend upon some relatively non-public agreement between the parties with its potentiality for abuse e.g. "agreements" induced by threats of prosecution. It may well be a useful addition to the Supreme Court's or the District Court's jurisdiction, for them to be able to refer either at the request of the Crown or at the Courts own motion), the subject of the offence to the Village Justices to ascertain if the dispute can be resolved by compensation. In the event of agreement the Court can be given authority to discharge the defendant.
4. We see no objection in the possibility of the Village Court's jurisdiction being extended by proclamation in relation to its process to award compensation. This capacity for extension should not however be prerogative of local authorities but of central government with the Councils being consulted.
5. There is danger that the wide and indefinite jurisdiction of Village Justices could stifle the development of the Local Courts. These Courts, comprised of indigenous magistrates numbering 78 in all, have been functioning since June 1967. Generally it is agreed that they have done a good job although there are too few of them. There is however danger that if the Councils, who have some vested interest in the Village Justices jurisdiction, were to be at liberty to expand the Local Courts could become unduly deprived of their authority.
6. One aspect of this is the authority of Councils to direct Village Justices as to the custom they should apply. If there is a dispute as to the custom to be applied this should be the function of the Local Courts with the advice of the Village Justices not involved in the appeal.
7. Local Court Magistrates should have the power to review decisions of Village Justices. If Village Justices are to have authority of settling by compensation serious offences and imposing punishment, there are dangers of abuse. In these circumstances, the Local Court Magistrates as in some African Countries, should have the power to review upon the broad ground that there has been a substantial miscarriage of justice. Under the current proposals, in criminal matters, there is no way in which the requirement that the onus should be on the Crown, can be enforced.
8. Generally the power to punish should be in respect of offences efined in the Ordinance, and unlike compensation, should not be capable of enlargement except by statutory amendment.
9. Fines for non-council offences should be payable to central government in the first instance. With Councillors sitting as Village Justices there could be a temptation to impose unreasonable fines.
10. Village Peace officers should not be employed by the council but by Central Government. Their powers should not be left to be prescribed by the government but should be defined in the Ordinance. Broadly their powers should be confined to the reporting of offences and arrest where a breach of the peace has occurred or likely breach of the peace will occur.
Financial and Staffing Implications
11. As appears from the AEC Submission the proposals call for provisions to be made for the payment of magistrates sufficient staff courts throughout the distract at an average of 50 courts to each district and 5 magistrates to each court. This will involve 900 courts and 4,500 Village Court Magistrates. The rate of payment for each magistrate has been suggested between $100 and $200 per year for each magistrate. What is envisaged is an expensive and administratively complex business.
12. This runs counter to the recommendations in the Lower Court's review, which suggested a step by step approach. The reasons for this relate both to the need for supervision and the necessity, reinforced by the experience of the Demarcation Committee, to ensure adequate administrative support.
2. It is recommended that:-
(i) You request the Papua New Guinea Government to defer further consideration of the proposal pending discussion between officers of the Department and officials of the PNG Government.
(ii) You permit discussion to take place between officers of the PNG Government with a view to reaching agreement on the proposals. It is not suggested that at such talks departmental officers should be restricted to any particular points made in this Submission. They would however put forward amendments to ensure that –
· Central Government had adequate authority over the system
· the jurisdiction of the Village Courts written submissions more clearly defined and fitted in with the jurisdiction of other courts.
· there was adequate supervision of the Village Courts.
It is clear that the rules governing trial processes and evidence at trial had to be introduced and that those had to be consonant with the rule of law, but it did not follow that these had to be the unmodified Australian rules..
The Australian law of evidence had been introduced into the law of Papua New Guinea (The Evidence and Discovery Ordinance 1913 of Papua and the Evidence Ordinance 1934 of New Guinea). It included detailed rules designed to protect the accused. These had grown up in historical circumstances very different from those applying in traditional Papua New Guinea. They seemed incomprehensible to a New Guinea Highlander charged with an offence, to his community and to the community to which the victim belonged. That in itself was very important. In addition, there was a very real issue whether these rules would be needed in the future, at least in the technical form in which they were embodied in our law.
The rigid exclusion of hearsay evidence was peculiarly relevant to jury trials which did not take place under territory law. Significant amendments could have been made to the law relating to admissions without detriment to a proper protection of the accused. Except in the case of a confession obtained by force or the threat of force, the rules could have allowed the Judge to admit confessions irregularly obtained where in the Judge's opinion the irregularity would not have detracted from the truth of the admission and where it would not otherwise be contrary to the interests of justice to admit the confession. Admissions under our law are regulated by rules formulated by the Judges in England in 1912, although in neither country do the rules have formal force. What would have proved an interesting exercise is if Judges, Department of Law, the Public Solicitor and the Police had worked jointly on revision of the rules to produce something suitable for an emerging nation. Such a review would have taken account of the traditional background of the society, the state of the police force, the need to maintain order and the rights of the accused. In addition to modifying the hearsay rule it was also desirable to do away with some of the very restrictive limitations on judicial notice in the context of Papua New Guinea. Judicial Notice is the principle of evidence which enables the Court to rely upon facts not proven in Court if they are a matter of common knowledge.
The adversarial nature of the trial process was not understood by Papua New Guineans. In our procedures the Judge is required to adopt an umpire-like role. A more inquisitorial approach as found on the Continent may have been more comprehensible and effective, although it is true one would need to have to proceeded with circumspection as the close involvement of the Judge can result in a loss of impartiality or the appearance that it has been lost.
Finally, the way in which western law separated punishment from compensation needed substantial reconsideration. The distinction in our law between these two processes should have been modified so as to allow a Court when sentencing to have the power to award, compensation at trial not only for the victim but to the group which had suffered loss.
All these matters needed examination. Whatever reforms may have been needed, views might legitimately differ whether they should have been undertaken and completed by Australia before Independence. In practical terms the end-date for Australian initiatives would have been about the end of 1971. Completion of a task of such magnitude would have been barely possible within that time frame. Also, it may be contended that substantial change to the law in these areas was no longer a matter for unilateral Australian action but needed to reflect indigenous opinion as expressed by its legislature.
These are certainly strong reasons justifying deferral.
To my mind though the persuasive consideration is that Australia had instituted reforms of the Supreme Court and introduced the office of Public Solicitor in the 1960s. These initiatives were in themselves highly commendable. Indeed they were essential if the Papua New Guinea legal system was to move from its emphasis on administrative convenience to that of the rule of law. But to introduce these reforms and leave untouched the law of evidence and criminal procedures resulting in very substantial problems for a relatively inexperienced Police Force and Prosecutor's office and ultimately law and order in the independent nation.
In my view Australia should have commenced to work on reforms in these areas even if that work were to be completed by the newly formed PNG Law Reform Commission and legislated by the House of Assembly.
What was needed to eliminate self-help was not only the institutional establishment of the State with sufficient power to eradicate self-help but concurrently the substitution of the idea of a territorial for a personal link - the importance of this being that the community could then tend to give more weight to the maintenance of order than to the satisfaction for the loss sustained.
The history of the elimination of self-help in Anglo-Saxon and Norman England provides an example of how slow and difficult such a process can be and some interesting contrasts with Papua New Guinea.
Anglo-Saxon tribes took over eastern and southern Britain after the departure of the Romans. The tribes were based upon kinship: the maegth which was the basic descent group was cognatic. The Anglo-Saxon 'kings' were for a very long time little more than tribal chieftains. Eventually, these petty kingdoms were consolidated into the kingdoms of Northumbria and Mercia. But Wessex had by the ninth century repelled the Viking incursions and established some kind of hegemony over England. In the eleventh century
another Norse invasion under Canute established control over more or less the whole of England but it accepted and developed rather than replaced Anglo-Saxon laws and customs.
Modification of Self-help: As Alan Harding has written in his 'Social History of English Law'*, 'the consistent aim of the Wessex dynasty was to do away with the blood-feud as the basis for private law'.
Monetary compensation for the victim became a principal object, "To force the injured man of the slain man's kinsfolk to accept a monetary composition instead of resorting to reprisals is a main aim for the law-giver"*.
And so Ethelbert, King of Kent, in the sixth century wrote down in his laws 'the customary worth of his subjects, the amount proportionate to the victims wergild and the nature of the wrong, to be paid.' An example was, 'if anyone kills a man he is to pay as ordinary wergild 100 shillings'. 'In fact his laws provided a complete tariff establishing an appropriate sum for each imaginable injury in the order of limbs commencing with the hair of the head.*' In laying down the law in this way the King's object was to maintain order but he could still do so only by satisfying the kin. This was recognised even in the period we are describing. Tacitus in his Germania, wrote 'A man must take up the enmities of a father or relative as well as the friendships, but they do not endure unappeasable for each homicide is settled by a fixed number of cattle and sheep, to the satisfaction of the whole kin and the benefits of the people, for enmities are more dangerous where there is liberty.'
Another step designed to prevent self-help was to delay it. Alfred (871-899) forbad a plaintiff from attacking an opponent in his home until he had besieged him for 30 days and sought justice from the King.
But the main substitute for self-help taken by Anglo-Saxon England was to encourage settlement by mediation and arbitration. Kentish laws in the seventh century set out the procedures for arbitration before the folk-moots. There was no attempt in these folk-moots to sift the evidence. The aim was to achieve a settlement.
A major problem was to ensure disputants would arbitrate. They were forced to do so. Athelstan (895-939) provided that if anyone failed to answer a summons by a plaintiff to three successive borough courts it was for the leading men of the borough, not the claimant, to ride to him and 'take all that he owned and put him under surety'.*
What we are seeing is the gradual intervention by the State but it was far from strong enough to superimpose its authority on the kin and indeed the community was still insufficiently non-personal for it to do so. Even so, for many wrongs, there came to be a double payment, the wer for the kindred and the wite for the King. This was an expression of kingly power and also involved a recognition that the wrong was not just a wrong done to the victim and his kindred. It was a wrong done to the 'King's peace' - to the protection accorded by the King to the community at large.
We also see a shift from kinship to territorial enforcement. Just as the maegth was entitled to vengeance or compensation for a wrong done to one of the kin so it became liable for a wrong done by one of the group. The maegth thus became the original form of Group Pledge. As late as Alfred, kin enforcement still operated and if a malefactor had no kin, a group of associates known as the gegildan would be liable for a third of the wergild if he had no paternal kin and half of the wergild if he had neither paternal nor maternal kin.
What we see at this time - and it remained so until the twelfth century - was that the kings were powerless to enforce the law completely and so they conscripted, so to speak, the kinship group to do this. It was laid down that everybody must be in a borh or pledge.
Before the Conquest, the most explicit enactment concerning group-liability was that of Canute who, in about 1030, provided that every freeman above the age of twelve should be in a borh, hundred and tithings, on pain of losing his lad (ie right of exculpation for crime) and his right of being atoned for by wergild if slain.
Territoriality in place of kinship was beginning. Even before the Norseman came, Wessex was divided into shires, each centred on a defensible town of an important Royal estate. In the tenth century there appeared the Hundred. It seems to have been a territorial sub-division of the Shire.
The Shire and Hundred 'courts' were not courts in the strict sense but independent folk-moots. By Ordinance of King Edgar (959-963), the Shire court met twice a year and a Borough court thrice and the Hundred court every four weeks.
Out of this developed the Frankpledge which held sway as an enforcement measure for two hundred years.
The large proportion of the population were placed in tithing groups at the head of which was the tithing man or 'capital' pledge. These were conscripted to maintain order.
The tithing was responsible for the lawfulness of its members. A delinquent among them must be brought to justice on pain of communal amercement for his non-production. The penalty was serious amounting in Henry II's day to half a mark - six shillings and eight pence.
Townships and boroughs were separate Frankpledge units. Thus the kindred and tithing, originally groups of kin, became geographical expressions. In France, public functions were transformed into local divisions, the bailliage, originally the office of the Baille. The county, originally the office of the Count, acquired a geographical meaning. Originally the law was personal. It gradually became territorial and split into hundreds of local customs.
We must turn at this point to the expansion of the State which means in these times the expansion of the 'King's Peace'. Originally, in Anglo-Saxon times, the King's Peace was the peace of fairs and markets and the peace of Church buildings. It was probably restricted at that time to the peace of his household or where the king was resident for the time being.
The idea of the Peace was that if an injury was done, the wrong was done not merely to the injured man or to his kin, but to the householder. His Peace had been disturbed. There was thus in the first instance many 'Peaces'. The history of the English State is how the King's Peace swallowed up these separate Peaces. At first - and for a long time - it was not identified with an impersonal institution - the State. It was personal to the King. Until the death of Henry III the Kings' Peace died with him. Edward, his son, being then in Palestine, the Council took the bold step of issuing a proclamation of the Royal Peace in the yet uncrowned King's own name.
A major factor in England in establishing the King's Peace over the whole nation was the claim to overlordship by William I which was conceded to him in the great gathering on Salisbury Plain. One further factor going back to pre-Norman times was that the King's officers presided over the Shire and Hundred Courts. These were eventually displaced by the Royal Courts emanating from the Curia Regis.
To Henry II belongs the chief credit for extending the King's Peace to become the law of the land. His work was consolidated by his grandson Henry III.
Henry ascended the throne in 1154. He appointed sheriffs, thereby restoring Royal authority at the local level. The Royal Court consisted of professional judges. The Royal Judges and Clerks of Chancery introduced a new system of procedure by which actions in the King's Courts were initiated by the King's writ and a new method for ascertaining the facts which became in time the Jury.
All of this involved the replacement of kinship by the territorial principle. To some extent it was a consequence of feudalism - the links with the lord being territorial rather than kin. It was also enhanced by the growth of towns, the church and by military duties.
* * * * * * *
There are some obvious differences in self help and the elimination of it between the Anglo-Saxon world and Papua New Guinea.
Papua New Guinea societies were even more fragmented and 'stateless' than Anglo-Saxon tribes. Moreover, from the sixth century, English Kings employed monks to embody in written declarations the laws of the kingdom. These laws, declared by Ethelred and Athelstan, were not though in any real sense 'made' by them. These declarations were, or purported to be, of existing custom.
The most important difference though is that, in the case of Papua New Guinea, the State was externally imposed quite suddenly. It did not gradually evolve parallel with the equally gradual elimination of self-help as in the case of Anglo-Saxon and Norman society. It was able to display a degree of coercive might which was never possible for the Anglo-Saxon State.
It was this latter consideration which led to the Administration at times to harbour the illusion that self help and payback had been eradicated. Thus, Marie Reay described the situation of the Minj, 'in 1947 the Australian Administration "pacified" the war-like clans of the Minj area by breaking up fights then in progress, and preaching the rule of law. By the time of my arrival in 1953, the Administration considered inter-clan warfare to belong to the past. The Kuma themselves had a strikingly different view regarding the kiaps … as transient, they looked forward to resuming their interrupted hostilities after the white people departed'.*
Payback was peculiarly tenacious. Ultimately, it could only be eliminated or wither away when the territorial principle had supplanted the personal principle in Papua New Guinea society and the legitimacy of the State's claim to a monopoly of force thereby recognised.
The isolation of clan communities, for long the prominent feature of traditional Papua New Guinea, began to break down. Roads were developed. Cash became a feature of the economy with cash crops such as coffee, planted in the 1950's maturing. There was much more mobility. But this mixing of clans did not lead to the removal of clan enmities. On the contrary clan enmities were enhanced, at least in the period before independence. Cash cropping itself resulted in more land disputes.
"At that time too, people began to travel about in passenger trucks and in the late 1960's, with increased traffic on the roads road accidents made death compensation a lively issue. All vehicles were required by law to carry third party insurance after the Australian pattern, and this amounted to hundreds (reputedly sometimes thousands) of dollars. But the third-party insurance was known as 'government money', for although vehicles were insured with private insurance companies, owners face to face transactions were with government officers. Whatever 'the government' did about paying for persons killed in road accidents, the Waghi people saw the driver - and therefore his clan - as being responsible and therefore liable to give compensation (kumap) to the victim's clan. In 1970 an expatriate living near Mt. Hagen yielded to demands for $2000 as compensation from a man he had accidentally killed while driving, and the Waghi people tried to take this amount as standard."*
We can also see the failure of the territorial principle in the difficulties faced by Native Councils. These were introduced in 1960. They involved the setting up of new political entities of elected members representing approximately 25,000 people. It was hoped that clans would cease to be separate groups but would become absorbed in Council wards. But, instead, Councillors acted as advocates for their clan.
* It was not remotely realistic to imagine decolonisation as simply that of an Australian withdrawal and the returning of Papua New Guineans to their pre-contact state as a collection of clans. The unreality of this is mentioned by David Derham in his University of Chicago Law Review article [Law and Custom in the Australian Territory of Papua and New Guinea, Vol 30, 495 esp. at pages 498-499] "It is now too late in the day to act upon that view whatever merits it may have had". In any event, to have attempted it would have been contrary to international obligations assumed by Australia under the United Nations Charter and to the Trusteeship Agreement.
* "The State differentiates civilisation from tribal society. The development of civilisation was nothing less than a transformation in the quality of the social system… The critical development was not the establishment of society as a Territory. The State and its subdivisions are organised as territories - territorial entities under public authority - as opposed for instance to kinship under lineage chiefs - a State has a true government public and sovereign, structurally separated from the underlying population and set above them. A mass of people in the state domain become subjects and the government sovereign by virtue of the force vested in the latter." M. Sahlins, The Tribesmen, p.5.
* This enabled Great Britain, unlike France, to institute a system of Indirect Rule in Africa. British colonial administrators led by Lord Lugard in Nigeria believed it desirable to have indigenous rulers performing a wide-range of governmental functions customary to African society. The African rulers were conferred with powers, rules and regulations which enabled them to perform initially a limited, and later a wider range of modern governmental functions. These African chiefs were officially described as native authorities or native administrators. It was not easy to transpose such a system to traditional Papua New Guinea which lacked hereditary chieftainship. Nevertheless it does appear that the original Native Courts Proposal which was linked with the introduction of Village Councils in 1949 was influenced by the concept of Indirect Rule. David Fenbury, its author, had been attached to the government of Tanganyika and the British Colonial Office between 1946 and 1947. Hasluck was very much opposed to Indirect Rule and had been, as he says, opposed since his undergraduate days. Hasluck, A Time for Building, Melbourne University Press, p.165.
* See Bohannan, African Outline, Penguin, pp.182-183; Mair An Introduction to Social Anthropology, Clarendon Press, p.99.
* Descent groups were patrilineal, matrilineal or cognatic. Patrilineal and matrilineal descent is through the male and female respectively. Cognatic groups comprise those whose descent is derived through either sex. In patrilineal society descent is from father to son who assumes control of the lineage on the death of the father. Included in the group would be the father's brothers and their sons. The matrilineal society, being derived only through the female, will comprise the mother and her children, but not the father. But such societies do not entail female control. In the matrilineal lineages the mother's brother (who alone in the mother's generation is related to her by blood) assumes control of the group. Origins of the distinction are not known. It seems to derive from a view, on the one hand, that the conjugal family – father, mother, children – is the basic social unit, and, on the other, that it is mother and child.
Ordinarily, in the case of a patrilineal group, a man would live near his agnates, i.e. descendants from the same male ancestor. In the case of a matrilineage he would live near his mother's brother.
In the Highlands descent groups were mostly patrilineal whilst in the islands they were matrilineal. Cognatic societies existed in the Southern Highlands and in the Bagasin area inland from Madang on the north east coast of the mainland. In the Highlands, combinations of patriclans could form a tribe of phratry which would be brought together in a common territory to settle disputes within the enlarged group (tribe or phratry) and, in the case of the tribe, to defend the territory against external attack, Fashion of Law in New Guinea, P. Lawrence, The State v Stateless Societies, p.22.
* Thus customs in the Trobriand Islands are reasonably definite and bear clear similarity to those in other areas: "claims for lula which is the traditional payment offered by an aggrieved man to the person who had insulted him. If the offer is refused, this confirms the original insult and the aggrieved man must either be compensated or he will take direct (violent) action; Claims for ninabwaila kulututu – the payment necessary to compensate relatives for the death of a person in certain circumstances such as when a man dies when fishing with the defendant in the defendant's canoe…; Claims for sagali, which arise when a stranger has been given rights over clan land for good cause and the donor subsequently dies. The stranger is entitled to claim a payment called sagali from the donor's clan if the members evict him; Claims involving veoula karibudoboda, the obligatory repayment to be made in yams after the yam harvest for goods or services rendered during the year. The amount of the repayment is a variable amount depending upon what is reasonable in view of the season and the relationship between the debtor and his relatives who are normally expected to contribute towards the repayment." T. Barnett in Fashion of Law in New Guinea ed. B. Brown, The Local Court Magistrate, p.167 recording information given by Mr Lepani Watson, M.H.A.
* Epstein, Contention and Dispute, A.N.U. Press, p.26.
* Fox, Kinship, Penguin.
* Epstein, op. cit., p.26.
* J Sinclair, Behind the Ranges, Melbourne University Press, p.135.
* Gore, Justice versus Sorcery, Jacaranda p.195.
* Marie Reay expressed the point in the following terms: "Thus, although the ultimate aim of dispute settlement was the restoration and maintenance of social order, the immediate and instrumental aim was the implementation of the abstract idea (ie of kab'g or justice). The ultimate aim was traditionally to restore order and guard against further disruption of community life by eliminating legitimate grounds for grievance. To achieve this aim, a settlement had to be acceptable to all as kab'g, a concept embracing but more flexible than our notion of justice". Although Marie Reay was referring to the ultimate aims of settlement the same observation applies equally to what was sought to be achieved through payback, see Contention and Dispute, ed A.L. Epstein, Changing Conventions of Dispute Settlement, M. Reay, P.198.
* R.M & C.H. Berndt, The World of the First Australians, Ure-Smith, p.294.
* G. Sawyer, Law in Society, Clarendon Law Series, p.41.
* M. Reay, Contention and Dispute, A.N.U. Press, p.204.
* Peter G Sack, Land Between Two Laws, ANU Press, 1973, p.14.
* See Reay, op. cit., p.204.
* "Where warfare had broken out between clans who were ostensibly friendly, peace might be possible when the deaths on either side were even".
* Under the Queensland Criminal Code which applied in Papua New Guinea, provocation was allowed to constitute a defence to assault as well as murder: ss268-269. In the case of murder, Section 304 provided that "when a person kills another under circumstances which, but for the provisions of this section would constitute wilful murder, does the act which causes death, in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only". It is not necessary here to consider the judicial debate whether 'provocation' as referred to in Section 304 of the Code meant 'provocation' as defined in Section 268.
* (1960) 8 FLR 391 at 393 – Supreme Court, Kundiawa.
* The exception of summary offences, aptly described by the High Court as 'not criminal in the real sense', does not affect the accuracy of this comment.
* Limited stigma attached to punishment. Thus the strange story narrated by David Selby in Itambu. A group of natives who had killed a man in their village arranged with another to take the blame. Assuring him that he would be sent to prison for two years, they promised to give him 20 pigs on his release… He was tried by a very experienced Judge and duly convicted on the evidence of the killers themselves who were able to give a most convincing account of how the murder was done. But then their plans went astray. The sentence of death which was pronounced on their duped kinsman was eventually commuted to five years instead of the two they had promised him. After serving two years in prison he demanded to see the District Officer asking to be released as his two years were up. Eventually, this led to the discovery of the plot.
It does not follow that punishment was on this account totally ineffective but it could not rely upon stigma or a sense of guilt.
James Sinclair in Kiap, Pacific Publications, p.169, described the case of Ninjiba, his gardener. "Ninjiba had been convicted of wilful murder by Mr Justice Phillips at Mt Hagen twelve years before, and sentenced to life imprisonment to be served at Wau, where he could be safe from tribal vengeance. So gentle and willing a little man was he that he had long since been allowed the freedom of the prison and he came and went at his own pleasure.
'Ah, Ninjiba,' I asked him in Pidgin, 'what's all this? You killed a man. That's not a good fashion.' 'No Kiap,' he replied, shaking his head violently, 'that's not true'. Ah, ha, I thought, another innocent wrongly convicted by the cruel justice of the white man. 'I didn't kill a man, kiap,' he went on earnestly. 'I killed my wife. She was no good. She went with another man, so I got my axe and I hit her on the head. And she died'. He smiled at me, sweetly. 'Then they brought me to the Court, and the Big Judge sent me here.' 'Do you want to go back to Hagen, Ninjiba?' 'No. If I went back there, her people would kill me. I'll stay here. This is a good place.'.
* Rv Pieti-Idugugali, Supreme Court, Laiagam, January 1961, charge – wilful murder:-
Statement by the defendant –
"I was angry about losing my big pig. I want to kill a big pig and give it to the relatives of Piagori [deceased] for what I have done. I do not want to go before the Big Court. Our custom is that when we kill someone we compensate the man's relatives. If we do not compensate the male relatives with a pig feast they pay-back with a revenge killing. The clan members did not tell me to kill this man, I killed him of my own accord and therefore I myself will make compensation to his relatives. My clan members will not be involved in this compensation payment. If I go to gaol for a long time then I will not make the compensation payment. If you release me and let me make the compensation payment everything will be in order."
* It is necessary to gloss such questions as the extent to which retribution and deterrence are the criteria of punishment and whether retribution is only a modern equivalent of the idea of group satisfaction. Here the object is to isolate the differences: for an interesting discussion, among many, of the idea of 'deserts' in punishment, see C.S. Lewis: The Humanitarian Theory of Punishment, (1954) Vol.6 Res Jud p.224.
* The Supreme Court could only order compensation for personal injury or damages to property if it decided to suspend punishment on first conviction, Criminal Code, S.656(5). In the lower courts Magistrates could order restitution of stolen property or compensation for stealing or like offences or could discharge a person convicted of property offences upon his agreeing to pay damages to the person aggrieved, Criminal Code S.448. The Local Courts, introduced later than the period of which we are writing, did have a power to award compensation.
* In recent years most countries, including the Australian states have modified the analytical distinction between crime and tort to enable the victim to be compensated.
* Peter Lawrence, Politics and True Knowledge, New Guinea, March/April 1967.
* Land Between Two Laws, A.N.U. Press, p.14.
* Fashion of Law in New Guinea, ed. B. Brown The State v Stateless Societies, P. Lawrence, Butterworth, pp.18-19.
* The English criminal trial is not an inquiry into the truth of a matter but is designed to ascertain whether the Crown can prove the case against the accused beyond all reasonable doubt.
* The common law rules as to confessions and the Judges Rules applied in both Territories: see Mr Justice Minogue, The Law of Evidence; Fashion of Law in New Guinea, p.105 esp. at 113-114.
* The protection of the right to silence and the privilege against self-incrimination only exemplify a general principle that the accused is not required to co-operate or assist the Crown in that task. 'The Crown must shoulder the whole load' as the Supreme Court of the United States put it. This is a response to the strong centralised State and the fear of the police. A police force was introduced into England in 1828. Between 1837 and 1844 judges ruled in a number of cases that even if a policeman told a prisoner that anything he said might be given in evidence for him or against him the subsequent admission made by the accused was inadmissible. Finally, it was recognised that this was carrying protection too far and would inhibit an innocent defendant from giving an explanation. Eventually, a compromise was reached and it was sufficient if the police man gave the accused the now familiar caution (R v Baldry 1852 (2 Den. 430). That procedure was embodied in the Judges Rules formulated in 1912 in England and have since been applied throughout the Commonwealth.
* Hence the bravura but over-simple comment of Professor Nash in his inaugural lecture as Dean of the Faculty of Law at the University of Papua New Guinea, May 1967, "To stand robed and wigged on the concrete floor of a kunai-roofed court house and argue that an admission made by a lap-clad native, who until 10 or 15 years ago was a stone-axe wielding cannibal, should not be admitted because he had not been cautioned … may be one way of obtaining an acquittal. It is not necessarily the best way of developing in a primitive community a respect for … justice". p.44.
* It is not suggested that these possibilities are exhaustive. The Indian Evidence Act 1972 provided for admissions to be taken by magistrates and there are no doubt others. Still the discussion highlights the problems.
* See especially Section 24(5).
* Hasluck, Melbourne University Press, p.187.
* See Hasluck, A Time for Building, Melbourne University Press, p.176.
* See Sack, The Derham Report, p.353.
* Appearing at page 45 of the Report.
* "They ought to have discretion to decide many matters in the light of native custom but the classes or matters must be specified." Derham.
* Page 6 of the Report on the Administration of Justice by Professor David P. Derham dated 21st December 1960.
* That Minute dated 3rd September 1962 appears at pages 351, 352 in A Time for Building and is set out infra.
In September 1966 the Secretary of Law tabled in the House of Assembly a summary of action taken on the Derham Report. He acknowledged that the interim Native Courts proposed by Derham had not been set up. In the tabled statement he said that the Local Courts to be established under the 1963 Local Courts Ordinance had superseded them. In regard to the Native Justices proposed by Derham, the Secretary merely added the laconic comment that "one is led to wonder whether the recommendation did not take an over-optimistic view of the rate of development of the native layman." Be that as it may, the fact is that Derham's interim proposals were effectively barred by Hasluck's August 1962 Minute on the Local Courts legislation.
* See the End Note which explains why if administrative and judicial functions are combined, as in the case of District Administration, it would not have been possible.
* Law and Custom in Papua New Guinea, Vol 30 Chicago Law Review 502.
* See Derham Report, para 10.
* "After a killing over a land dispute in 1966, kiaps encouraged and supervised the payment of approximately £2,000 between the groups concerned as blood money and attended a peace-making feast (personal communication from R Hyde to T Barnett). A similar payment was made after killings on Mt Willhelm in 1969. (T Barnett).
* p.189-190,194.
* Marie Reay, Contention and Dispute, ed. Epstein, Changing Conventions of Dispute Settlement in the Minj Area, p.198 at pp.206-207.
* Peter Sack, Law Custom and Good Government: The Derham Report in its Historical Context, pp384-385, Papua New Guinea: A Century of Colonial Impact 1884-1985, ed. Sione Latukefu.
* L.P. Mair, Australia in New Guinea, 2 edit, 1970, Melbourne University Press, p.87.
* Para. 105.
* 1969, Fashion of Law in New Guinea, ed. B. Brown, The Local Court Magistrate, p.162.
* See Barnett supra.
* See L.P. Mair, Australian and New Guinea, Melbourne University Press, p.109.
* I Downs The Australian Trusteeship Papua New Guinea 1945-75, APS pp.161-162.
* It has been suggested that Fenbury had in mind selected District Officers with legal qualifications holding magisterial authority to supervise the new Native Courts when introduced. It is difficult to believe there would have been enough of them for this to have been administratively practicable and it does not seem realistic to suppose such a system of supervision could have survived independence even if this mix between the administrative and judicial would have been sound in principle.
* The problems of bias would be substantial and could not reliably be left to the general and informal supervision of an overworked indigenous District Officer.
* ANU Press, 1974, pp.210-214.
* pp.212-213.
* As appears from A Time for Building, pp.343-356, (Chapter 29) Hasluck had been closely involved in the preparation of the Local Courts Ordinance since his address to Parliament in October 1961. He did not leave the portfolio until December 1963 and the Ordinance was not enacted until 1963. No later instance of Hasluck taking part is referred to in A Time for Building. Only access to the files would clarify what part he played in the preparation of the Ordinance after the September 1962 minute and whether the Ordinance in its final form was seen by him. One might hazard the suggestion that at least section 31 was not.
* Melanesian Law Journal Vol 1 Nos 1 and 2, 114-117.
* Since independence this Ordinance has been renamed the 'Customs Recognition Act'.
* The common law required proof of the existence of a custom from time immemorial if it were to be given legal effect. This meant it had to be proved to have existed since 1189 (the first year of the reign if Richard I). As a general rule proof of the existence of a custom, as far back as living witnesses can remember, is treated in the absence of any sufficient rebutting evidence as proof of the existence of the custom from time immemorial. In proving an immemorial custom the usual course was to call persons of middle or old age to state that in their time, usually at least half a century, the custom had always prevailed, Halsbury's Laws of England 3rd edit, Vol 11, paras 314, 315 and 320.
* This definition is substantially the same in the Underlying Law Act No 13 of 2000 except for the substitution of 'indigenous' for 'aboriginal'. The Papua New Guinea Constitution, Article 20, directed Parliament to enact the underlying law for the new country. A Bill to give effect to this was drafted by the Papua New Guinea Law Reform Commission but legislation was not enacted until April 2000.
* The question of repugnance to the general principles of humanity has been frequently litigated in the years since independence particularly, where it has been alleged that the custom is oppressive and infringes the rights of women: Re Kepo Peramu (1991) PNGLR 84: Re. Raima (1994) PNGLR 486 and Re. Willingal (1997).
* See the interesting discussion in The Common Law in Papua and New Guinea, Robin S. O'Regan (1970), Law Book Co., esp. at pp.14-15. The Underlying Law Act 2000 sets out an ingenious hierarchy of law which is to apply to any question involving native custom.
* p.175.
* p.177.
* I had joined the Department in August 1970. But I came to this particular issue with some background. I had been interested in the problems of justice in Papua New Guinea for over five years and had in that period read much of the law and some of the anthropology relating to them. I was fascinated. In July 1967 I made a private visit to Papua New Guinea. I knew many of the judges on the Supreme Court who were Victorians – Alan Mann, the Chief Justice, John Minogue and Sydney Frost. Through them I saw many of the courts in action and flew to Rabaul where Paul Quinlivan, the Stipendary Magistrate, took me out to the villages to witness the first Local Courts which were presided over by an Assistant Magistrate with, as I recall, the unusual christian name of February.
* See essay 'The Rule of Law and the Democratic Principle'.
* A. Harding, Social History of English Law, Penguin, p.21.
* Maitland, Constitutional History of English Law, Cambridge, p.4.
* A. Diamond, Primitive Law Past and Present, Methuen, p.64.
* This was also a problem in early Rome. The State would endeavour to promote reconciliation but its power to do so was limited. It could make an offer from one party to the other but the party to whom the offer was made could accept or reject it. Thus, the person aggrieved could at his election accept compensation or pursue the feud. If he chose the latter he was not originally guilty of an offence in having recourse to self-help.
The early form of civil procedures required both parties to submit their disputes to the praetor.
The next step is for the law to require that before violence is used a demand to proceed in court should be made. If that demand was refused, and witnesses testified to that, the praetor would treat the refusal to come to court as a wrong for which he would give remedy by action.
Ultimately, but not until the time of Diocletian the State undertook by its own authority to summons the defendant and compel his attendance and obedience to its order. Even then the first step was really to compel the parties to arbitrate before the Iudex and again it was not the officers of the state who enforced the decision. The successful party himself acted upon it. And his remedy was against the person of the debtor. One sees in this how gradual was the intervention of the State and the use of its coercive authority.
* See Changing conventions on dispute settlements in the Minj area, Contention and Dispute, op. cit., p.205.
* Reay, op. cit., p.264.