ONE of the most important points missing in discussions on the operation of the law in colonial Papua New Guinea is the understanding that native customs existed and drove the way village people behaved and had to be considered at some point in the eventual legal determination.
Chris Overland has alluded to the knowledge and use of native custom by kiaps applying the law and Phil Fitzpatrick has stated how the formal court system and native custom application were entwined when determining cases involving Papua New Guineans.
There was legislation enacted and known as the Native Customs Recognition Ordinance that directed that this had to happen.
As young kiaps, part of our on-the-job learning was a requirement to sit in on court hearings to observe and learn.
Occasionally, we were thrown in at the deep end and instructed to prosecute criminal cases. We were told to read old patrol reports and, when on patrol, either with a senior officer or by ourselves, to listen to what the village elders told us and to ask questions.
At an appropriate time we were sent to Port Moresby to undertake advanced training in law, legal practice and other field requirements. On successful completion of the training, certification of competency by our Assistant District Commissioner and then by the District Commissioner, we were gazetted as magistrates.
Before proceeding with a hearing, civil or criminal, magistrates had to acknowledge pre-existing critical factors like communication and customs and that these should inform their dealings with the indigenous people.
Firstly, we had to ascertain that the participants were able to communicate in a common language with the court, either with or without an interpreter.
This meant that the parties to the proceedings could communicate freely at the appropriate times and that they could understand what was going on in relation to any relevant laws. In particular, in criminal cases, defendants had to know and understand what they had been charged with to properly plead to the charge.
This has been brought into relevance with a recent appeals case in Western Australian where an indigenous Australian has been released from conviction for manslaughter because he could only communicate in his local language and no interpreter had been provided for the original trial where he did not understand what he was pleading to.
Next we, as magistrates, had to know if there was a relevant local custom applicable to the facts of the case before us.
If so, then in a civil case the magistrate had to be strongly guided by the custom in his decision. In a criminal case, the magistrate only had to assess the impact that the existence of the custom had on the defendant when arriving at a decision based on the facts of the case. In other words, was it a mitigating factor?
The only relief that a magistrate had under the Native Customs Recognition Ordinance was to determine if an applicable custom existed, whether it was abhorrent or not. If abhorrent, the magistrate could determine on the facts alone and ignore the existence of the custom.
An enlightening paper by John Greenwell linked to here explains the Justice Department’s considerations for the extension of the courts into the villages to accommodate customary issues.
Before independence in 1975, the government responded to issues in the court system, including a backlog of cases and a need to respond to village level matters by creating a village courts system.
The Village Courts Secretariat was established within the Department of Justice and made up of a group of kiaps who were also magistrates under District Commissioner Ian Holmes, who subsequently retired and was replaced by national magistrate Andrew Maino.
Village courts were sponsored by local councils who, once assessed and approved by the Secretariat, became responsible for the management of those courts.
The councils would nominate appropriate village people to be trained as either village court magistrates, constables or clerks. Secretariat officers would deliver training courses on the law as it applied to village courts (to a maximum penalty of K50), legal principles and legal practice. I spent two years in the Secretariat as a training officer.
David Gonol’s article referred to marriage occurring when agreement was reached between the families and the bride price exchanged.
I am aware of areas in PNG when this occurs when the young bride-to-be is only 13 years of age but early puberty makes her eligible for marriage.
Under the Native Customs Recognition Ordinance this arrangement would be considered abhorrent because of the age of the child and the fact that her mental age would not give her the capacity to have her consent legally recognised, if it was sought at all.
Two young village girls were “deflowered” by two young adult men of the village. It was alleged that custom of the area encouraged this activity. The men were convicted of unlawful sexual intercourse (rape) because the magistrate ruled that the acts were abhorrent. The girls were four years and six years of age. The parents of the girls congratulated the magistrate after the hearings. I was the magistrate.
It is all very well to suggest that traditional law and government law are incompatible but to suggest that the incompatibility is because of colonial law is a long bow to draw because your nation has been in existence as an independent nation for 42 years and has had the chance during that time to make its own laws that better reflect the integration of customary law.