Legal Innovation in Papua New Guinea

Papua New Guinea's system of Village Courts, initiated at the country's independence in 1975, provide a valuable test case in the integration of less formal, local-level adjudication forums within a formal legal structure. The courts were designed to provide rural communities with access to the legal system, and also to provide this access in a form that would suit local sensibilities, for instance by placing less emphasis on a distinction between civil and criminal cases.

In the 35 years that have passed since their inauguration, Village Courts have undergone some important developments and transformations, not all of them welcomed by the legal establishment of Papua New Guinea. Village Courts have appeared in cities and towns. They have begun to hear cases outside of their jurisdiction, such as land claims and murder trials. They take very seriously the widespread concern in the country about witchcraft and sorcery, which cannot be legally recognised in the higher courts. The services of so-called 'bush lawyers' with no formal qualifications have arisen, when Village Courts were intended to be free from the interference of lawyers or other legal specialists. These and other irregularities in Village Court practice are seen by legal elites in the country as signs that the system is in trouble, and is in need of bringing back into line with the courts' proper functioning as delineated in their original remit.

This project proposes instead to regard the developments in the Village Courts as signs of a system that is doing precisely what it was supposed to do: to fulfill locally-determined desires for justice and adjudication. That it has adapted to different needs in different parts of this extremely diverse country is an indication that the flexibility of the Village Courts is something to be examined as an indication that Papua New Guinea's legal system is one in which the delivery of justice is not always designed in a top-down fashion from the centre, but can and does develop organically at the grassroots level.

In order to do this, the project will draw on the skills of two anthropologists with longstanding research interests in the operation of Papua New Guinea's legal system, with the assistance of students from the University of Papua New Guinea who will contribute knowledge of local languages (the country boasts some 800 languages) as well as local variations in social organisation and cultural values. The project team will conduct the first broad survey of Village Court practice since the 1970s, with an eye to documenting precisely how the courts have adapted to local needs and sensibilities since their inception.

The significance of this research is twofold. Firstly, Papua New Guinea is a country that is chronically at pains to divest itself of the reputation of being a 'failed state' with non-functioning instruments of civil society. The project offers a re-framing of Village Court innovations from indicating a breakdown of the legal system to indicating that the legal system is adapting in necessary - and highly functional - ways.

Secondly, there is a burgeoning interest internationally in informal or community-oriented systems of justice delivery and adjudication. From the reconciliation commissions that have sprung up in the wake of conflicts around the world, to the adoption of restorative justice alternatives in the British criminal justice system, the operation and development of informal courts in one part of the world has profound implications for how courts and other forms of justice delivery can develop elsewhere. Papua New Guinea has inherited the essential structure and tenets of its legal system from the United Kingdom and other Commonwealth states. The way its own courts have developed since independence offer a model for how the delivery of justice and equity can adapt to local sensibilities in common law jurisdictions throughout the world.

The project will serve the interests of three groups of stakeholders: in Papua New Guinea itself, in Australia, and in jurisdictions further afield (including the United Kingdom) in which there is an interest in restorative justice.

In Papua New Guinea, two government bodies - the Village Courts Secretariat and the Constitutional and Law Reform Commission - will be the most immediate beneficiaries of this research. Both entities are based in the national capital of Port Moresby, and are staffed by the educated elites of the country. As such they have difficulty ascertaining what is actually happening in the Village Courts, especially those that are quite far from urban centres. The Village Courts Secretariat does not have the capacity to conduct research of this kind, and would benefit from the findings of this project in order to fine-tune its oversight of the system. The Constitutional and Law Reform Commission is concerned more broadly with developing the 'underlying law' of the country, which is popularly conceived as originating in the customs and legal consciousness of the grassroots - in practical terms, this means the Village Courts.

In Australia, entities concerned with the political and social stability of Papua New Guinea will be the main beneficiaries of the project. These will include academic bodies such as the State, Society and Governance in Melanesia centre in the Research School of Pacific and Asian Studies at the Australian National University, and government bodies such as AusAID. Papua New Guinea is the single largest recipient of overseas aid from Australia, and there is periodic discussion in both the media and in policy circles that this aid has had little effect on supporting the institutions of civil society or 'law and order' in the country. This project would be able to provide AusAID and other sources of development funding - such as World Vision International - with concrete data on local legal practices that will in turn help them to fine-tune their funding priorities.

Finally, there is increasing interest among other Commonwealth jurisdictions including the United Kingdom, New Zealand and Canada in exploring and instituting restorative justice practices as an alternative to, or side by side with, more formal legal remedies for criminal cases and others involving conflict of some kind. In the United Kingdom, the Restorative Justice Consortium would be the primary beneficiary of the research. This organisation serves as a clearinghouse for restorative justice initiatives throughout the UK, and would be among the longer-term beneficiaries of the project. We aim to share our research findings with the Consortium and its constituent members in order to discuss and disseminate the lessons learned over the last 35 years by what is essentially an early experiment in restorative justice.