Publication: Oceania
Publication Date: 01-MAR-05
Format: Online - approximately 13882 words
Delivery: Immediate Online Access
Author: Goddard, Michael
Article Excerpt
INTRODUCTION
Claims have been made recently in academic literature that women are disadvantaged, or mistreated, in Papua New Guinea's village courts. These claims have the common theme that village courts are male-dominated institutions, and that, particularly in 'the highlands', the courts apply 'custom' or 'customary law' which discriminates against women. Overall, the rhetoric that women are mistreated in village courts has become powerful enough to be accepted as unquestionable fact beyond the research community. Indeed, when I mention my own research interest in village courts to people who have an educated acquaintance with Papua New Guinea (PNG) nowadays, their response as likely as not includes an assertion that the courts discriminate against women, and a consequent degree of incredulity if I do not immediately concur.
My purpose in this article is simply to interrogate these claims, partly through a review of research-based and other literature and partly with reference to my own research. Contrary to the negative view of village courts, which adds them to a catalogue of women's oppression in PNG, I suggest that available research findings indicate that the courts are an important resource for aggrieved grassroots women with limited avenues for seeking justice and recompense. I should emphasise here that beyond discussing women's treatment in village courts, this article is not intended to be a contribution to the literature on the broader issue of violence and violent crimes against women in PNG. I begin with a short account of the political and rhetorical climate in which the village court system was established. I then review the, mostly academic, commentaries on the village courts in relation to women in the historical order of their publication from the 1970s to the 1990s. A short comment on the analytic perspectives represented in that literature is followed by examples of the more recent negative commentaries. I subsequently present some findings of my own, and a brief conclusion.
THE ESTABLISHMENT OF THE VILLAGE COURT SYSTEM
Village courts in PNG were established through legislation, the Village Courts Act 1973, at the end of the colonial era and have come to occupy a position between formal courts and customary dispute-settling procedures. Overall, the intentions of the legislative planners were that the courts should concentrate on mediation and the pursuit of peace and harmony in the settlement of low-level intra-community disputes. The legislation also directed that village courts should apply custom 'as determined in accordance with.... the Native Customs (Recognition) Act of 1963' (Village Court Act 1973). (1) In the rhetorical climate of the time politicians represented village courts and customary law as portending a revival of custom, making customary law a 'real part of the national law' (Kaputin 1975:12). (2) To this end village court magistrates, untrained in law, were to be selected by the local community on the criteria of their adjudicatory integrity and good knowledge of local customs (Village Court Secretariat 1975:1). A longstanding colonial attitude that an antagonistic relationship existed between European law and 'native custom' (3) had contributed to the defence of 'custom' becoming part of an anticolonial polemic among indigenous intellectuals and politicians at the time of their introduction (Chalmers 1978a:266ff, PNG House of Assembly 1972:1163-8).
The combination of pro-custom rhetoric and arguments that power should be returned to local communities, that the formal justice system of the late colonial period was not accessible to villagers (Curtis and Greenwell 1971, Iramu 1975, Lynch 1965:32, Oram 1975) and that something should be done to improve rural 'law and order' (Curtis and Greenwell 1971, Chalmers 1978b:71-72) overrode concerns--mostly among Europeans--about the possibility of corruption in village courts (Bayne 1975b:41, Oram 1975:67-68, M. Strathern 1975). At the same time, the commentaries of legal specialists implied some expectations that, rather than revive customary law, village courts would fulfil a more pragmatic function of gathering existing unofficial dispute settlement procedures into the centralised legal system (see, for example, Bayne 1975a:33). In practice, while promoted by politicians as 'customary', the village courts were, and are, constrained by a strict set of rules about what kinds of cases they could hear, and what kinds of penalties they could impose. In village courts I have observed during the past decade or so, while magistrates sometimes make verbal references to 'custom' they mostly apply common sense and 'the law' in their adjudications (see, for example, Goddard 1996, and cf Scaglion 1990, Zorn 1990).
Despite overwhelming support among Melanesian parliamentarians and progressive legal advisers for the establishment of village courts, fears remained among conservative jurists and other Europeans that village courts would be legally or otherwise corrupt and that village court officials' ignorance of the law would result in the application of anachronistic customs. Consequently when village courts began to be proclaimed in 1975 after a trial period, critics of the scheme were anxious to observe their practice. Among the first village courts proclaimed were some in the Mendi district of the Southern Highlands, (4) which were almost immediatedly visited by concerned European observers.
CONFLICTING REPRESENTATIONS
The first published mention of allegedly discriminatory practices in village courts was made by Oram in 1979, with reference to some unpublished notes by a white official who visited Mendi village courts in 1975 (Martin 1975). Oram describes the incident thus:
A village court in the Southern Highlands convicted a woman who had infringed a resurrected or invented customary ban against smoking by women. Local white officials were worried that village courts in such a conservative area might discriminate unjustly against women and strangers to the area and appealed as a test case. The district supervising magistrate granted the appeal on grounds of the village court's lack of jurisdiction, but he upheld the right of the village court to interpret local custom against the view of the reserve magistrate. The officials were also concerned lest village magistrates would use their appointments as a power base. (Oram 1979:73)
No attempt seems to have been made to investigate, to any analytically significant degree, the cultural background or circumstances of the case or the village court's decision. It needs to be noted that village court magistrates in these first courts had no handbooks to guide them in the negotiation of legislative demands that they apply both the law and custom. Neither had they been properly informed about the limits of their jurisdiction. The Village Court Handbook, issued to village courts of its time, was not published until 1976, a year after this incident.
The treatment of women was one aspect of a subsequent critique of the village court system by Paliwala (1982), which typified a point of view emanating from dependency theory, seeing Western legal systems as agents of control in non-Western societies and therefore systematically oppressive of the ruled people. According to this view--sometimes called 'legal centralism' (Galanter 1981, Griffiths 1986, Scaglion 1990)--while legislation such as PNG's Village Courts Act might appear to reinforce customary law, the courts actually impose an alien system, and depart significantly in practice from pre-existing forms of dispute settlement (Paliwala 1982:192-201). Village courts are thus seen as agents of the state applying both custom and law oppressively to the political economic ends of a dominant class. Paliwala saw village courts as applying oppressive customs more strictly than had previously been the case, in the interests of social control over women as the most important source of rural labour power (1982:221-222). Paliwala's article was based on research from 1975 to 1978, and contained references to the incidents at Mendi mentioned by Oram. Interestingly, he revealed that the white officials involved were told by the Department of Justice and the Department of District Administration to stop interfering with the new village courts (1982:204).
In the mid 1980s differing views of the treatment of women in village courts were emerging. Mitchell, a law lecturer at the University of PNG, brought a conventional legal perspective to the matter, pointing out the contradiction between the notion of women's equality found in the PNG Constitution and its promotion of the Melanesian family at the same time, which reinforced customary attitudes to women's role and treatment in marriage (Mitchell 1985:88). She believed directives that village courts apply custom were bound to result in discrimination against women, whom she believed were customarily subordinated in marriage (1985:88). Mitchell conducted some comparative research in the North Solomons and the Southern Highlands and attempted to achieve a balanced view of what she understood to be customary law and the way it was applied in the village courts. She noted that village court magistrates were predominantly male and regarded this as a disadvantage for women. She also described women as inexperienced and lacking skills in public speaking, to their detriment in court (1985:88). Noticeably Mitchell avoided simply categorizing village courts as misogynist, blaming instead what she saw as the discriminatory customs which she believed village courts inevitably apply under the directives of the Village Courts Act, and the contradictions in the Constitution (1985:89). From Mitchell's legalist perspective, which regarded custom as a conservative force impeding women's equality, education to change the views held by both men and women was essential (1985:89).
A contrasting view was offered by Westermark, who published an article in the same year as Mitchell, using statistics developed out of anthropological fieldwork in the Agarabi area of the Kainantu District in the Eastern Highlands from 1977 to 1978. He offered case studies demonstrating the role of the village courts in managing disputes, importantly indicating the wider context in which individual disputes occur (1985:114-117), and commented:
The most frequently contested family issues in the courts are marital problems and assaults.... those who complain most frequently about both of these matters are women ... If the problem has become serious enough for complainants to come to court, however, they usually come to request a divorce. While treating such requests as worthy of discussion, magistrates are reluctant to give approval.... Magistrates typically lectured the disputants about their responsibilities to each other and the importance of marriage, warned them about separating without court approval, and then sent them back to their community to attempt conciliation. (Westermark 1985:112)
Westermark contextualised the village court's reluctance to give divorces in local issues of the time: '....one consequence of the court's strong stand against divorce and violence may be to help ameliorate the social and economic pressures causing conflict and family instability among the Agarabi.' (Westermark 1985:118). He did not mention that village courts are not authorised to grant divorces: a matter to which I will return later. Significantly, though, he noted 'Magistrates hearing cases of marital violence have been severe with male defendants' (1985:114), and reviewing the high number of women using village courts, he commented 'That women should be such frequent users of the court, when in other public contexts they tend to refrain from asserting themselves, suggests that they view the court as an effective method for responding to their conflicts' (1985:114).
In the same year again, an article by Scaglion and Whittingham used statistical analysis from all parts of the country to look at women's use of village courts, finding that women used village courts more than any other forum (ranging from village moots to higher formal courts) to settle grievances (Scaglion and Whittingham 1985:132). A series of short reports provided by Papua New Guineans in 1986 on marriage and violence in their own areas had occasional references to village courts in highland provinces suggesting that village courts did occasionally facilitate divorces, (5) and the very brief examples implied evenhanded decisions toward the male and female disputants (Warus 1986:61, Tua 1986:67-68, Asea 1986:80, Kakaboi 1986:89), incidentally mentioning cases of village courts finding in favour of women disputants against men (Wain 1986:45, Tua 1986:72).
In a 1990 publication, based on a ten-year retrospective analysis of Balupwine village court in the East Sepik Province, using statistics gathered by himself, Scaglion wrote:
Clearly, Abelam women are now making good use of the Village Court in pursuing their grievances. In 1977, they were the plaintiffs in only about 22 per cent of disputes resulting in Court Orders. It was clear from the context of many of these disputes that males were bringing cases on behalf of their female relatives. By 1987, however, it appears that women have taken matters into their own hands: they were the complainants in 53 per cent of all Orders. It thus seems that Abelam women are now able to remove their grievances from the male-dominated forum of village politics and still have them heard by a body that recognizes local custom. (Scaglion 1990:29)
He added an explicit criticism of Paliwala's view:
The increasing tendency of women to bring their grievances to a Village Court is perhaps doubly significant in that it nicely illustrates the dangers of an uncritical acceptance of the legal centralism philosophy.... Legal centralist studies commonly see women as an oppressed minority, and...
NOTE: All illustrations and photos have been removed from this article.
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