Reto’s chance: State and status in an urban Papua New Guinea settlement
According to the ‘state-in-society’ model developed by Joel Migdal, states cannot be analytically regarded as separate from the societies they govern and have to be viewed in their social contexts. Migdal’s model has been well received by scholars discussing governance and, especially, social control, in Melanesia. An anthropological qualification which could be applied to the model is that local elements of state in Melanesia are socially permeable, since their employees are likely to come from the communities they serve. This permeability arguably contributes to a mutually transformative relationship between state institutions and local groups whose praxis is informed by exigencies of kinship and community.
Heuristically viewing the colonially planned `village court system’ in Papua New Guinea as an element of state in terms of Migdal’s model, this paper presents a narrative of the appropriation of a village court into community sociality and individual aspirations for status in an urban settlement in Port Moresby. Ethnographically, it suggests that an application of the state-in-society model in the Papua New Guinean context, at least, must allow recognition of the way colonially and neo-colonially introduced institutions have been appropriated into the praxis of local communities, and thus must preserve a sense of the transformations both of the institutions and the social life of those communities, to be analytically viable.
Discussion of the engagement of the state and society in Melanesia has drawn recently on what has been called the ‘state-in-society’ model developed by Joel Migdal (Migdal, Kohli & Shue 1994). Constituent themes of the model are that states are almost never autonomous from social forces and have to be viewed in their social contexts (Migdal, Kohli & Shue 1994:2-3), that the overall role of the state in society `hinges on the numerous junctures between its diffuse parts and and other social organizations’ (1994:3), that the relative position of a social group within the overall social structure is not a simple determinant of the power of that group (1994:3-4), and that `states and other social forces may be mutually empowering’ (1994:4). Migdal’s overall approach has thematic similarities with recent independently developed representations of Melanesian states as fragmentary or diffuse and socially contextualised (e.g. Filer 1992, Gordon and Meggitt 1985, Standish 19811), sometimes in relation to nationhood (e.g. Hirsch 1997, Wanek 1996). In this respect Migdal’s representation of his model as intended to correct an unfortunate tendency in social science to treat the state as an organic, undifferentiated actor’ (Migdal 1994:17) might overstate the tendency. Perhaps the pertinent function of Migdal’s model, as far as Melanesia is concerned, is that it tidily encapsulates the kinds of indeterminacies explored by social scientists in particular local settings where the weakness of the state is a political given. The compactness of the model has made it a handy resource in a number of recent discussions of governance and, especially, social control in Melanesia (e.g. Claxton 2000, Dinnen 2001, Dauverne 1998).
It should be acknowledged, though, that institutions and ideas introduced by their colonizers have been creatively appropriated into Melanesian praxis since the beginnings of colonial intrusion and that these appropriations are as transformative of the institutions and ideas as they are of the lives of the indigenes. Thus, the late colonial state of the 1970s is reproduced in the contemporary Papua New Guinea state only partially, and in its ostensible structure rather than its substantive functions. In this respect, its organs appear to a conventional European gaze only nominally equivalent to those of a Western state. My query about Migdal’s model, then, is whether its application in the Papua New Guinean context will allow a recognition of the appropriation of colonially and neo-colonially introduced institutions into the praxis2 of local communities, and thus preserve a sense of the transformations both of the institutions and the social life of those communities. The particular focus of my interest here is Migdal’s observation that the engagement between the state and social forces may be mutually empowering in some instances and a struggle for agency in others, often marked by mutually exclusive goals (Migdal 1994:24). To this we could append the anthropological observation that the outcomes of these kinds of engagement in specific local communities are often reflective of the social permeability of localised elements of state, whose employees are likely to come from the communities they serve. This is an important contributing factor in the mutually transformative relationship between state institutions in Melanesia and local groups whose praxis is informed by exigencies of kinship and community. My concern is to maintain a dialectical view of the relationship which Migdal’s model addresses. Ethnographically this article is a story of the quest for prestige and a measure of power among urban so-called ‘grassroots’ males – little bigmen, so to speak. It provides an opportunity to explore the way a small element of the state has been absorbed into group and individual praxis in a settlement in Port Moresby.
The relevant element of state in my discussion (conceptualising the socially embedded state according to Migdal’s model) is the Village Court system of Papua New Guinea, which had its ideational beginnings in the 1940s in the imagination of well-intentioned colonizers. It was legislatively planned in the twilight of colonialism, and finally came into operation as Melanesian leaders publicly anticipated a post-colonial legitimation of long– suppressed ‘custom’. But while political representations of the village court system invite an interpretation that it is a grassroots justice system blending custom and law, historical investigation lends weight to a more political understanding that it is a state institution whose planners intended it to serve the parochial judicial needs of villagers and rural homesteaders (e.g., Chalmers 1978b, Gordon and Meggitt 1985:210-236). As such its anthropological examination affords insights into the efforts of small-scale communities to incorporate elements of state into local and sometimes individual strategies.
I will begin with a brief account of the historical background of the village court system and its practical operations, and then describe the particular social context of my ethnography, an urban settlement. This will set the scene for a narrative of the rise and fall of magistrates in an urban village court, illustrating the dialectical relationship between group and individual praxis and an element of state.
The negative attitude of colonial officials toward the idea of indigenous juridical officers began to change after the Second World War, when Papua and New Guinea became a single entity known as the Territory of Papua and New Guinea for administrative purposes. The governing Labor Party in Australia began to implement a ‘New Deal’ policy with a view to eventual independence for the territory (Wolfers 1975:119-123). The Administrator, J.K.Murray, mooted the idea of ‘Native Village Courts’, and Section 63 of the Papua and New Guinea Act 1949 provided for the establishment of native village courts and other tribunals run by Papua New Guineans. However, Murray’s proposal, ‘Native courts…with jurisdiction in minor civil and criminal matters, especially but not exclusively in those relating to native custom’ (Murray 1949:61), was not implemented, partly as a result of a change of Australian Government in 1949. The idea of native, or village, courts was fielded several times during the 1950s (Lynch 1978:114-116, Fenbury 1978:25) without finding favour with the Australian Minister for Territories, Paul Hasluck (Hasluck 1976:187), or with an influential conservative section of the judiciary in Papua New Guinea.
However, there was a growing concern on the part of the Administration that the majority of the population was not using the formal system of justice, and unofficial courts, over which the Administration had no systematic control, were flourishing (Fitzpatrick 1980:139-40, Strathern 1972:2-6). Discussion among Administration planners began explicitly to bring together issues of legal services, indigenous participation and custom in a configuration which forcefully reintroduced proposals for a Village Court system. In 1965 the legislative draftsman of the time, C.J.Lynch, proposed a reform of the legal system involving ‘native courts’ using ‘minimally trained native magistrates of the “village elder” type’, and administering ‘custom’ or ‘customary law’, arguing it would provide speedy justice at a low financial cost and would be physically close to the people (Lynch 1965:27-28).
Other factors were also providing impetus toward a new justice delivery strategy. From the 1950s there had been increasing pressure from the United Nations on Australia to prepare Papua New Guinea for political independence, resulting in, among other things, a program of ‘localisation’ of positions traditionally held by Australians. In the 1960s a growing number of Papua New Guineans were moving into positions of authority in a variety of spheres including parliament.3 Among indigenous parliamentarians and academics in particular a developing anti-colonial rhetoric included calls for the favouring of custom and customary law as more appropriate regulatory instruments for an emerging Melanesian nation than the imposed legal system. This body of opinion complemented a contemporary influx of Papua New Guineans into the judiciary, and added considerable weight to the resurgent notion that some form of ‘native courts’ might be advantageous. In particular there was concern about the inadequacies of Local Courts such as over-formalised procedures and language difficulties, which alienated local communities particularly in rural areas, and a procedural emphasis on producing a winning litigant, in contrast to traditional Melanesian concern with the maintenance of community stability (Chalmers 1978b:57ff).
A review of the lower court system (Curtis and Greenwell 1971) and a subsequent enquiry into the need for village courts (Desailly and Iramuu 1972) led to a White Paper being tabled in the House of Assembly and debated late in 1972. By this time the majority of parliamentarians were Melanesian and ‘custom’ was becoming a rhetorical component of the debate over Papua New Guinea’s political independence (Gordon and Meggitt 1985:192). The Melanesian parliamentarians were mostly in favour of village courts. Among the themes traversed in the course of discussion were nationalism and criticism of the colonial legal system (Chalmers 1978a:266ff). In September 1973 the Village Courts Bill was introduced for parliamentary debate 4 by the then Minister for Justice, John Kaputin, who stressed its potential efficacy in giving indigenous communities control over their own affairs. The issue of returning power to local communities was persuasive in the climate of the demise of colonial rule, along with the issue of the rural shortcomings of the current legal system, and a perceived need for an emphasis on rural `law and order’ (Curtis and Greenwell 1971, Chalmers 1978b:71-72). The Village Courts Act 1973 came into force on November 28, 1974. Overall, mediation and the pursuit of peace and harmony in the settlement of low-level intra-community disputes were the principal aims. The commentaries of legal specialists of the time suggest that there were some expectations that village courts would gather existing unofficial dispute settlement procedures into the centralised legal system (e.g. Bayne 1975:33).
When the first village courts began operating, in a rhetorical climate anticipating a post-colonial revival of custom, John Kaputin enthused that `customary law will from now on be a real part of the national law… Village Court magistrates who will be appointed because of their knowledge of customary law will be a vital source of information and, indeed, a catalyst for reform’ (Kaputin 1975:12). To this end the legislation provided for village court magistrates, untrained in law, 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).
Within a short time, however, constraints presaged in the legislation and manifest in bureaucracy shifted the practical operations of village courts away from the idealised realm of ‘custom’. Under the weight of official rules and regulations stipulating judicial limits and demanding the keeping of written records, village court officers found themselves structurally integrated with the existing legal system. Their activities could be overseen by members of the formal judiciary, and certain types of cases were to be referred to local or district courts, which could also hear appeals by disputants against village court decisions. Community expectations, driven by experience of the colonial court system rather than by neo-customary political rhetoric, provided further impetus for village courts to be partially modelled on local and district courts both procedurally and architecturally. Planners of the village court system had intended that the courts would simply be held where and when a dispute arose, but within a decade bush-material village courthouses were common and there were regular court sitting days in many communities (Goddard 1992, Paliwala 1982, Scaglion 1979). The general principle of disinterested adjudication represented by the colonial legal system was also attractive to local communities, who had experienced customary dispute settlement as a process beset by bias and manipulation under the exigencies of kinordered social organization (Goddard 1996, 2000).
While village courts shifted toward legal formalism they did not completely break with informal practice. Lawyers are not allowed to attend village court hearings, and while disputants may have expectations that their court will operate like a district court they commonly use tactics more suited to the traditional moots and arenas whose spirit the village court system was originally intended to express. The legally unschooled and unconditioned magistrates demonstrate creativity in their dispute management and decision making. Overall these factors have resulted in a great variation in operational style among village courts in general. Individual courts reflect the sociality of the particular local community they serve, and their praxis is a complex integration of introduced law and a variety of local customary dispute management procedures (cf. Garap 2000, Goddard 2000, Scaglion 1979, 1990, Westermark 1986, Young 1992, Zom 1990).
In modern Papua New Guinea there are more than 1000 village courts in operation, and the system has proved to be a success, spreading into urban areas where it mostly serves the ‘grassroots’ population in settlements and urban villages, rather than the urban elite. Village courts provide local communities with a readily accessible legal institution for the reasonable settlement of disputes. Notwithstanding occasional criticism alleging miscarriages of justice, particularly in respect of women in some parts of the highlands (Doherty 1992, Garap 2000, Jessep 1992, Young 1992), the village court system has proved popular with the local communities which it was intended to serve and has become institutionalised in practice, if not by its inaugurators’ intent, somewhere between autochthonous dispute settlement procedures and local and district courts.
Nevertheless, as the foregoing history shows, the contemporary village court system is an element of the state, by virtue not only of its origins in colonial state planning but of its continuing administrative connection to the hierarchy of formal courts, and this status is consolidated by its financial circumstances. In this respect it demonstrates similar dysfunctional tendencies to most other elements of state in Papua New Guinea. Despite its spread and popular support, the village court system has been beset by administrative and financial problems since its beginnings. Positioned in a formal legal structure, village courts are under considerable pressure to perform to standards of efficiency determined by bureaucratic and judicial overseers, rather than by the flexible and customary criteria of the communities they serve. Periodic reviews of the system have been attempted, and calls for better ‘training’ for village court officers are common, and often come from the officers themselves, who aspire to the imagined knowledge and efficiency of officers of local and district courts.
There has never, however, been sufficient funding or administrative organisation to achieve more than a few workshops in regional centres for limited numbers of officers. Financial problems are exacerbated by a division between the executive administration of the system, vested in the Village Court Secretariat, and its financial administration. The remuneration of village court officers is not by salary but by ex gratia payment, and responsibility for provision of payments has shifted over time between different state organs. Most recently, in 1996 an organic law transferred financial responsibility to provincial governments. The Village Court Secretariat has subsequently attempted to implement this decision, but has found that a number of provincial governments are recalcitrant, and money received by them for village court remuneration is being used for other purposes.’ In the National Capital District, financial responsibility is taken by the National Capital District Commission (NCDC), but payment is inefficient and funds frequently go missing.6 The consequences are that village court officials often go for months without remuneration. Lack of payment is a constant source of frustration and anger for the officials, who (understandably) expect that it should be a simple matter to redistribute to them a proportion of the money they collect in village courts in the form of fines and deliver to authorities like the NCDC or provincial governments.
Having introduced the village court system as an element of state, I will now turn to a description of the urban context of one village court, Erima, which takes its name from a settlement roughly in the centre of the populous suburbs it serves. It is the busiest village court in Port Moresby and serves an area of more than 18 square kilometres.
THE URBAN CONTEXT: ERIMA SETTLEMENT
The disputants who come to Erima village court reside in four densely populated suburbs which have expanded in the northern part of the city since the late 1950s. In addition to several large high-covenant and low-covenant housing estates the area contains a number of habitats which are referred to in the media as ‘settlements’ or `squatter settlements’ (often interchangeably) though their boundaries are not as clearly demarcated nor their inhabitants as socially marginalized and unemployed as the popular use of the term implies (cf. Chao 1989, Goddard 2001, Jackson 1977, Kaitilla 1994, Norwood 1984, Wrondimi 1994). Erima itself is a legitimate self-help settlement area of rental plots on government land. Informal subdivision and sub-leasing of rented sites is not uncommon, resulting in great architectural diversity and a crowded atmosphere in some sections of the settlement, and a large and fluctuating population. It is a volatile habitat, since it contains a mixed population of migrant background from many regions of the country competing for housing and jobs and forced to share restricted space. Regional groups form enclaves within its general boundaries, and try to get along with their neighbours as best they can. Violent confrontations are common, especially when alcohol consumption exacerbates chronic friction among diverse and mutually suspicious ethnic groups.
The potential for continuing friction to destroy the community is offset by a sense of unity against outside forces. Settlements are represented by the popular media as criminogenic, and are constant targets for police raids as the state attempts to demonstrate efficiency in the fight against endemic crime (Dinnen 2001:63-65, Goddard 2001). In addition, settlements such as Erima are constantly being ‘researched’ by officialdom, welfare-oriented organisations and academics, mostly working in teams, who legitimate their intrusion with assurances that research findings will result in better conditions and services. The failure of such assurances ever to come to fruition has made settlement-dwellers cynical and occasionally hostile toward outsiders who descend on them to ask questions and pry into their affairs. Negative experiences such as these contribute to a strong sense of territoriality in the settlement as a whole, and a pronounced communal guardedness of the habitat they have created for themselves. Like a large, fractious, family they bicker and fight amongst themselves yet present a united front toward any outsider who does not have ‘connections’ within the settlement. Episodes of sometimes violent confrontation among themselves are followed by processes of reconciliation (though rarely complete resolution) in relatively short order, partially under the impetus of a shared sense of their need to maintain reasonable solidarity as a residential community.
When disputes occur settlement dwellers have a range of potential resources, amounting to neo-customary dispute management procedures (Goddard 2000:244), which are used in preference to local or district courts to contain their problems within the community. Taking small disputes to local and district courts involves a risk of legal complications, unforeseen costs and technicalities which threaten the degree of control the community has over its own affairs. In many local communities in Papua New Guinea, including settlements like Erima, social organization is intrinsically connected with the social activity of various christian church denominations, and consultation with church deacons or other officers provides a forum for the settlement of family and other local disputes. Most settlements also have at least one secular committee to address socio-economic problems of the community in general, and these can be used as a dispute-settling resource, depending on the nature of the dispute. In addition ethnic groups within the community often form their own self-help associations (linked to networks of political ethnic associations across the country), and again, disputes of certain types can be taken to these groups. In comparison, the village court is a more formal and more public forum which can serve several purposes for an aggrieved disputant: it is adjudicatory rather than arbitrational, monetary compensation for the aggrieved can be ordered (and usually is) and the accused can be subjected to the censorious and shaming attention of a large crowd.
Despite the polemical connection made by politicians and the media between settlements, unemployment and crime (Goddard 2001) Erima, like most settlements around Port Moresby, contains a mixture of employed and unemployed people, who are mostly lawabiding. On weekdays those in formal employment leave the settlement in the morning and return in the late afternoon. During a large part of the day, Erima becomes the precinct not only of small children, housewives and the elderly, but of the unemployed and those in informal money-earning activities. It is a hive of activity in this respect. In addition to the smallgoods, softdrinks and blackmarket beer sold from a sprinkling of tiny tradestores and ‘tucker boxes’, betelnut and baked or fried snacks are sold from small stalls in its pathways. Card games, bingo games and dart-throwing competitions, all played for money, are endemic. Small-scale usury is a common practice. These and other activities redistribute money through the community but are also opportunities for their organisers to gain some measure of local social prestige. Other opportunities for prestige in the settlement community are offered by church-related activities and membership in the various committees set up to protect and improve the living conditions of settlement dwellers. Men, in particular, vie for membership and positions of authority in these committees to enhance their own prestige and gain at least a degree of control over their immediate social environment.
The village court offers an opportunity for prestige and authority, though without great monetary prospects. A number of magistrates are elected or re-elected by the community periodically, and then choose from among themselves a chair and deputy chair. The court also requires a court clerk and a number of functionaries officially called peace officers. All village court members are supposed to be issued with a uniform of blue shirt and trousers and fabric badges of office. In practice the uniforms are issued rarely and haphazardly by governing authorities who give little attention to the needs of village courts. Magistrates and peace officers covet these symbols of authority and wear them with pride, even when they have become ragged and threadbare with age. The various positions in the village court, then, provide an opportunity for the symbolic and practical expression of authority and are often sought by men with little education or vocational or professional training, some of whom hope the court will serve as a vehicle to higher goals such as careers in politics or public service administration. At the same time, many village court magistrates are as much, or perhaps more, preoccupied with the good of the community than with achieving an elevated status. An example of the latter is Andrew Kadeullo, who is at the centre of the narrative to which I will now turn.
THE RISE AND FALL OF CHAIRMAN ANDREW
Andrew Kadeullo migrated to Port Moresby from Milne Bay in the late 1960s and worked his way up to what appeared to be a secure clerical position in a govenment office but illness, involving hospitalisation, cost him his job. By then he was married and had children at school, so he decided to stay in the capital city and obtained a block of land in Erima settlement, where he built a small house. He immersed himself in community work, while looking for reasonable employment, and soon found himself on the settlement’s self-help committee. Here his clerical background proved an asset for the settlement community. He knew how to handle paperwork, a valuable resource for the growing number of migrants negotiating with city authorities for land blocks and amenities in the sprawling settlement. His clerical skills also drew him into service in Erima village court.
His problem-solving abilities were noticed by the court’s ageing chairman. According to Andrew the old man groomed him as a successor, teaching him all he needed to know, ensuring his election as the next chairman and, having passed on his mantle, shortly dying peacefully. Andrew attributed his skills as a magistrate to this personal schooling, and saw his work as a mission. Each village court has several magistrates, usually elected by the community they serve, and these in turn choose one of their number to be the chairman. Andrew was continually re-elected, and was commonly known as `Chairman Andrew’ throughout the community at large. It was in this role that I first encountered him in the early 1990s when I travelled the country looking both at rural and urban village courts in action and talking with village court officials. Chairman Andrew struck me as unusually insightful about his work, compared to the other magistrates I had spoken to. Erima village court had the highest caseload of any that I saw, serving an extremely mixed and volatile population of migrants from all over the country. Subsequently in 1994 I chose Erima as one of three village courts around Port Moresby to monitor over a period of several months. One of these courts served a single ‘traditional’ village on the edge of the city, and another served two or three downtown settlements dominated by migrants from a single region of the country. Erima, serving a large and culturally diverse population, contrasted markedly with the other two. I was interested to compare the types of cases heard among these three courts, and the way the courts dealt with them. Among other things I was curious to see how Andrew and his fellow magistrates coped with the very heavy caseload at Erima (far greater than those of the other two village courts combined) and how he negotiated the cultural and regional variations among court users, in light of the directive that village courts should follow ‘local custom’ as much as possible.
Like many village court magistrates, Andrew dichotomised ‘law’ and ‘custom’ discursively, and regarded it as a duty to be as knowledgeable of disputants’ local customs as possible. This was a particularly daunting prospect in Erima village court, which Andrew hyperbolically described as catering to migrants from every province of the country. In practice, however, I found Andrew worked with a commonsense knowledge of regional variation in attitudes toward matters such as social obligation, reciprocation and compensation and subscribed to common urban stereotypic representations of the character traits of regional groups. It seemed to me that his success as a village court magistrate owed little to the idealised customary knowledge to which he aspired and much more to his understanding of the social and local historical context of the disputes he heard, his remarkable memory and a commitment to the wellbeing of the settler community at large. He was also expert at subtle persuasion. Village court decisions should reflect the deliberations of all the magistrates who sit on the case (this must be at least three by law, and was often five at Erima). Andrew never perceivably forced his fellow magistrates to bring their often wildly disparate views on guilt or penalties into consonance with his own, but his own conclusions always prevailed in the corporate announcement of the court’s decision.
In the early weeks of my observations court decisions sometimes appeared strange to me, though in the interests of cultural relativism I withheld judgment on their fairness or rationality. Asking for explanations of various decisions at the end of a day’s hearings, I would invariably receive a lesson in social and historical contextualisation and the politics of settlement life, and a demonstration of Andrew’s memory and local knowledge. He would give me a long history of previous encounters with the disputants, their social relations with each other and the wider community. He would detail at length the ramifications of the decisions and the potential ramifications of possible alternative decisions. These explanations traversed socio-economic considerations, micro-ethnic relations, and networks of marriage and other social relations throughout the various settlements of the north-east area of Port Moresby which the court served. I found them dizzying in their complexity, but they made sense of the decisions, fitting them into wide-ranging strategies managing the wellbeing of the community at large. An apparently unfair decision of the moment became contextualised, for example, in a long-term manoeuvre to extricate a woman from a violent marriage, or to save a threatened relationship, or to avoid interethnic violence, or other consequences destabilising settlement community life.
The official village court handbook, which Andrew knew by heart, recommended that mediation should be attempted, where appropriate, before disputes reached formal village court hearings. Andrew’s dispute management strategies transcended these procedures, however. I became accustomed to the frustration of listening to a complex dispute which was eventually adjourned to the following week’s hearing, only to find when the subsequent court hearing took place that the case had mysteriously disappeared in the interim. Usually, this meant Andrew had effected some kind of truce or even a solution through meetings with the disputants at his house. Somehow he kept an account of these labyrinthine dealings, for the village court records were faultless. This was despite the shortcomings of the court clerks who came and went over the years and who displayed varying levels of commitment, integrity and competence. Through a variety of diplomatic strategies, both during and between court hearings, Andrew would make sure their mistakes were corrected, their lapses breached, and if necessary their incompetence masked.
Clearly, Andrew controlled the village court, one way and another. The weekly hearings began at 9 am and continued through to the evening. This was an arduous day, and Andrew would occasionally declare himself in need of a rest, retiring to the rear of the court area to chew betelnut while the deputy chairman and fellow magistrates managed a case or two. But even on these occasions he watched and listened, drifting in during the magistrates’ deliberations to guide the discussion to a decision which his fellows regarded as their own. There is legal provision for disputants to appeal against a decision of the village court, taking the matter to the district court, and appellants were as prevalent in Erima village court as in any other. While Andrew’s decisions may have been in the best interests of the community at large, they did not always suit the individuals immediately involved in the disputes. Weekly trips to the district court were part of Andrew’s routine. The appeals were rarely successful. Andrew was as persuasive of his legal superiors as he was of his fellow village court officials. There seemed no malice in the appeals: indeed, Andrew appeared to regard them as a kind of battle of wits, and announced his rare losses publicly in the village court when a case returned to be reheard, or a fine was reduced by order.
The community at large regarded Andrew with great respect. Slight of build and extremely mild in disposition, he made no gestures of self importance or patronage. But there was a general recognition that he was a man of integrity with the best interests of the community at heart, and his skills as a resolver of disputes were rewarded with a steady trickle of gifts of betelnut, beer and food items to his house.
There were six other magistrates in Erima village court, of varying competence and commitment. Andrew worked with them as best he could, as they were elected by the community and he could do little about those he privately regarded as incompetent or lax. The fellow magistrate he regarded most highly was Reto (not his real name), a man very different from himself in temperament and background. Reto was from the Southern Highlands district. He was an ageing rogue, a hard-drinking gambler incessantly in search of cash by dubious means, for he was formally unemployed. He had begun his involvement with the village court as a peace officer, delivering summonses and acting as an executive servant of the magistrates. Andrew had encouraged Reto to become a magistrate, he told me, because he was tough and courageous, frightened of no-one despite his age and short stature. He could not be intimidated, and for this he had the respect of many people, despite their being exasperated by his roguish behaviour.
As a magistrate, Reto provided a marked contrast in behaviour to Andrew. Where Andrew was patient and polite to disputants who displayed recalcitrance or hostility before the court, Reto was intolerant and snarling: he imposed fines for ‘contempt’ with little provocation and dismissed cases if complainants could not or would not make themselves clear. He had no time for rambling explanations, the wordy were curtly told to get to the point. He swung unpredictably from bawdy humour to bad temper. When Andrew and Reto shared the bench to hear a case, they were a complementary pair: Reto’s fiery presence and intimidating style could quickly undermine prevarication and webs of deceit, after which Andrew would guide the court toward fair and reasonable outcomes. In an election held among the magistrates in 1993 Reto became deputy chairman, a position offering him a rare opportunity for prestige in the urban settlement community. This was important to him, for he was too old and did not have the resources to achieve big-man status through the manipulation of exchange relationships as he might have in his natal place. Here, in an urban settlement, he was given the opportunity to belatedly achieve a position of prestige by other means.
Reto’s strengths as a village court deputy chairman were chronically challenged by his extra-judicial failings. His drunkenness got him into trouble time and again as did his various intrigues in pursuit of money – he was frequently obliged to appear before the very court he served on, as a result of petty disputes. Also, he was non-literate and lacked a sophisticated grasp of the areas of law within which the village court was obliged to function. Among chairmen and deputy chairmen in rural village courts these do not amount to problematic shortcomings, but urban village courts such as Erima have much more contact with other arms of the judiciary and bureaucracy and Reto’s lack of knowledge in these areas meant Andrew had no relief from dealing with these aspects of courtwork. Andrew bore this extra burden without complaint and considered that Reto’s practical strengths as a magistrate made him a worthwhile deputy. In the intra-magisterial elections in late 1994, however, Reto was not re-elected to this office, possibly due to his fellow magistrates’ misgivings about the amount of trouble he got into. Replaced as deputy, he continued to serve as a magistrate. He was clearly disappointed not to have been re-elected deputy, and his attendance subsequently became erratic.
A few weeks after Reto lost the deputy chairmanship, I moved from Papua New Guinea, and was no longer able to monitor Erima or the other courts intensively. However, I paid yearly visits to the country and was able to periodically investigate the state of the three village courts and the fortunes of their magistrates. Erima court remained relatively stable, Reto seemingly reconciled with his loss of the deputy-chairman position, and Andrew presiding as ever over a volatile but manageable cohort of magistrates, peace officers and successive court clerks. I had come to regard Andrew as an ideal urban village court magistrate. Wise, fair, combining formal and informal notions of justice with Solomonic integrity, respected by everybody, he guided his erratic fellow magistrates with patience and good grace toward decisions in the best interest of the community. Given the difficulty facing a village court trying to manage the chronic friction attending such a volatile, regionally mixed community and having watched all the magistrates in action I found it impossible to imagine Erima village court without Andrew at its helm.
When I visited Erima in 1998 the unimaginable had happened. Andrew had recently been deposed, and Reto was the chairman. Reto himself fobbed off my requests for explanation by joking and changing the subject. Andrew and the other magistrates were more forthcoming and I was able to piece together the chain of events. A few weeks previously Reto had suddenly accused Andrew of misappropriating his fellow village court officers’ financial entitlements, paid out by the National Capital District Commission. These entitlements were supposed to be regular small payments funded from the fines imposed by village courts in the NCD and were collected from a central office by village court chairmen, who distributed them to their fellow officers. In practice, the financial affairs of the village court system and the NCDC were chaotic. Payments rarely came through, and village court officers often went for months without receiving their modest allowance. Unable to grasp why there was no money, village court officers throughout the district functioned in a climate of frustration, and of suspicion of each other. As it was usually a chairman’s lot to return from the NCDC office with the news that there had been no payout, chairmen themselves were commonly suspected of stealing the allowances.
Andrew had been shocked at his colleague’s sudden accusation, but as his integrity was being questioned he had immediately stood himself down from the chairing position, forcing an election among the magistrates. He had expected support from his fellows, but they elected the self-nominated Reto as the new chairman. Magistrates told me Reto achieved this result by simple gifting (common at all levels of politics in Papua New Guinea). Moments before the vote, Reto had pressed money into the hand of each magistrate. The imperatives of the gift permeate all areas of Melanesian society: Reto’s aggressive, carefully timed gifting would have been almost impossible to refuse, and obligated his fellows to give him their vote. Andrew had never used such a direct method to achieve his own ends, and was taken by surprise.
The magistrates soon regretted their election of Reto. Once in the chair he became publicly autocratic, imposing his own will irrascibly on court decisions and alienating his colleagues. His judgements proved to be hasty, erratic and harsh, and lacked the systematic rationality of the judgments made under Andrew’s leadership. Appeals against court decisions increased greatly in number. Reto had no understanding of judicial processes beyond his own experiences in the village court, and was unable to negotiate the appeal process in the district court. This task fell back to Andrew, who was now faced with chronic defeat and embarrassment in the appeals court since Reto’s idiosyncratic judgements, unlike his own, were indefensible. It was in fact through a consequence of a successful appeal that I first learned, on the first morning when I revisited Erima in 1998, that he was no longer the chairman. Approaching his house, I was greeted by his wife Dai with the news that Andrew was too embarrassed to see me because he was showing the effects of a beer-drinking session the previous night. A disputant had appealed against a decision by Reto, and had won the encounter with Andrew in the district court. The disputant, recognising that Andrew was attempting to defend a judgement he would never have made himself, sympathised with the communally respected ex-chairman and to show his goodwill bought a case of beer which they consumed together.
Not only had the magistrates come to regret electing Reto, but they had realised that Andrew had been falsely accused of misappropriation, and they had asked him to return to the chairmanship. Andrew had refused. Not only would this have to be done properly by another election (and unless Reto did something blatantly criminal or was physically unable to perform his duties an election was not due for some time) but he had been insulted. He expressed a willingness to continue to handle the district court appeals and carry the clerical load – nominally there was a court clerk but his work needed correction, and Reto’s idiosyncratic decisions made the clerical work even more daunting – but he was not ready for complete reconciliation with his doubting colleagues. No longer in a position to fully control process and judgement in the village court, Andrew was now working harder than ever. His time was increasingly taken up with bookwork, appeals cases and behind-the-scenes mediation and negotiation with court disputants to prevent what he saw as the social damage which Reto’s erratic judgements threatened to bring about.
In 1999 I returned to pursue four months of follow-up research in the same three village courts. I found Erima village court in uproar. Reto had clung to his chairmanship in the year since I had last visited, but had recently been caught out in exactly the activity he had accused Andrew of. An internal shake-up in the NCDC had resulted in a well-publicised large payout of overdue allowances to village court chairmen for distribution. There was clear evidence that Reto had collected the money for Erima village court officers, but it had never been distributed. It was never found, and Reto pleaded ignorance of what had happened to it. Legally lacking evidence to prosecute Reto, the NCDC nevertheless refused to countenance his continuance as chairman, as did his outraged fellow magistrates. Although this was Andrew’s chance to return to the chair, he simply refused to be nominated. He was still smarting from the lack of support shown by his fellow magistrates when Reto had accused him of misappropriation, and he was exhausted from attempting to contain the various consequences of Reto’s leadership of the court.
The court had certainly fallen into disarray, ridden with blatant factionalism as various ambitious magistrates had jockeyed to overcome the autocratic leadership of Reto. The caseload had increased through the inefficiency of the court and the large numbers of rehearings as the district court upheld appeals. Erima village court was now sitting two full days a week, where previously it had managed to process its caseload through single weekly hearings. Shortly after I resumed research the magistrates met and, under the scrutiny of an NCDC officer to ensure fairness, elected a new chairman. The new chairman immediately gave a speech in which he acknowledged Andrew’s long service in the chair and reaffirmed the court’s trust in him, making it clear that his wisdom and clerical skills would be relied upon in the future. Nothing was said about Reto. The latter prowled in the background accusing the group as a whole of a lack of trust in himself and eventually stamped out of the court area and disappeared.
The new chairman proved during the next few weeks to be competent, but relied heavily on Andrew’s procedural and bookwork knowledge. In effect Andrew was less burdened than during Reto’s leadership but still working very hard. A constant stream of disputants visited his house, as they always had, for informal resolutions or to seek advice on how they should respond to developments in court or prepare for upcoming court appearances. He was still referred to in the community at large as Chairman Andrew, and seemed to be settling into an avuncular role in relation to the village court.
Meanwhile Reto had acquired a document from the Village Court Secretariat (which all the other village court officials assured me was forged) stating that although he could no longer be chairman, he could still serve as a magistrate. Four weeks after his walkout he appeared at the beginning of a day’s hearings, thrust the document at the new chairman and sat himself on the magistrates’ bench. He was unchallenged, and effectively returned to the role he had fulfilled before he had accused Andrew of misappropriation a year previously. For his part, Andrew appeared to bear him no particular ill will and continued to represent him to me as a good inquisitorial magistrate. During the rest of my research period Andrew continued to pursue his mission of ensuring justice and peace as far as he could in the community at large and when I finished my research he still appeared to have no wish to regain the chairmanship of the village court.
On a subsequent short visit in 2001 1 found Andrew still serving as an avuncular advisor and substituting for an unreliable court clerk. Reto had been dismissed from service by the Village Court Secretariat. Andrew told me this was the result of complaints by the other magistrates, who would not tolerate his presence in the long term. At the time of my visit Reto was serving as a security guard in a nearby produce market.
THE VILLAGE COURT IN LOCAL PRAXIS
The foregoing narrative discloses a complex engagement between the local community and the village court in which the court, as an element of state, undergoes a degree of transformation under the exigencies of community life and at the same time can be transformative of the projects of individuals in the community. As I noted earlier, as far as their practical operation is concerned village courts have become institutionalised somewhere between autochthonous dispute settlement procedures and local and district courts. For settlement dwellers the urban village court is a resource used strategically in relation to a number of others, such as church and settlement committees, which have developed organically from the complexities of settlement life. At the same time it is an alternative forum to the local courts and district courts. Many settlement dwellers prefer not to use the latter in the first instance, but nevertheless appeal to them if they are dissatisfied with the outcome of a village court hearing. Consequently, Erima village court fulfils neither John Kaputin’s rhetorical prophesy of the enshrinement of `customary law’ in national law (1975:12), nor the intention of legal planners that it would gather informal dispute settlement procedures into the centralised legal system (Bayne 1975:33).
Further, inasmuch as village courts were intended to settle intra-community disputes and restore community peace and harmony, Chairman Andrew’s decisions on individual cases disclosed the contradiction embedded in the adjudicatory project of the village court system. In the 1960s, the mooting of some form of ‘native courts’ was partially informed by concern over the contrast between the introduced law’s procedural emphasis on producing a winning litigant and customary Melanesian concern with the maintenance of community stability (Chalmers 1978b:57ff). Nevertheless the strictures of the village court system’s origins in state planning and the categorization of the village court as a legal forum – however informal and putatively informed by local ‘custom’ – commit village courts to the ideal of abstract and impartial justice administered to the two parties before the court. In Erima village court (like others I have seen in action) this ideal frequently gives way to the need to maintain community harmony? Indeed, Peter Lawrence’s apt comment on the maxim fiat justitia, ruat coelum, that Melanesians are more concerned with keeping the sky up (Lawrence 1970:46), is manifest in Andrew’s preoccupations.’ Andrew was obliged to deal with the adjudicatory contradiction by negotiating with disputants informally outside the village court and (in the case of appeals) by exercising his skills of persuasion in the district court. Andrew’s manipulations indicate that village courts have not ameliorated the problem which concerned legal planners in the late colonial period, but rather have become intrinsic in the unresolved dialectic between legal and social exigencies in communities like Erima.
The use of legally untrained community members as village court magistrates, related to an imagined reliance on expertise in ‘custom’ in village court decisions, has contributed significantly to the adjudicatory contradiction. Magistrates are aware that they are not supposed to show bias, and routinely remove themselves from hearing individual cases if a kinsperson is involved, but their participation in the community’s social life prevents them from taking the disinterested position implicit in the courts’ terms of reference, even though they may not be as consciously protective of the community as Chairman Andrew. The involvement of local community members draws the village courts into other dimensions of local sociality as well, as the toppling of Andrew from the chair shows. My own assessment of Andrew after a few months of fieldwork had been that he was indispensable as the chairman of Erima village court, based on observation of his remarkable skill at solving disputes, managing community tensions and discord, and keeping the court’s juridical affairs in order. But I had not taken account of the degree to which the village court was articulated into the community’s political life.
Nobody denied Andrew’s wisdom and skill, and I doubt that anyone in the community would have questioned his appropriateness as chairing magistrate according to the criteria I had used. But his long-proven trouble-managing ability was not enough to preserve him when Reto seized his chance. Perhaps unspoken jealousies among his fellow magistrates about his status played a part, in addition to suspicions generated by the constant non– arrival of their payments. Certainly the village court chair was a coveted position, but few of the other magistrates would have had the temerity to publicly accuse Andrew of misappropriation in order to replace him. Crude as it may seem, Reto’s accusation exploited the chronic issue of non-payment which has vexed magistrates throughout the NCD and which is constantly raised in meetings at the end of court days where court officers discuss administrative affairs. Andrew played into Reto’s hands by suspending himself from the chair and calling for an election. Simple gifting elicited a cultural response which superceded any considerations related to village court administration such as Andrew’s character, past record and chairing skills, or concern for the efficient running of the court.
For Reto, the deposing of his mentor served his own drive to achieve belated bigman status in the settlement community. His triumph quickly became hollow however, as his unsuitability for the chairman’s position became obvious. Yet in the aftermath of the deposing of Andrew we see another aspect of the appropriation of the village court into local praxis. While the village court itself was in disarray, Andrew continued his role as a dispute manager to the community at large, albeit beset by the complications wrought by Reto. Importantly, Andrew’s dispute managing took place largely beyond the formal precincts of the village court, away from the public gaze. The ambiguity of the village court’s role in the community’s pursuit of justice is visible in this divergence. Not only is the village court the most formal of a number of resources available in the community for dispute managing, but it is an arena where the complainant can bring the censorious gaze of the public onto the other party, adding shame to the weight of accusation. The complexities of mollification, compensation and reconciliation can often be dealt with outside this theatrical space. Thus even with the incompetent and autocratic Reto in the chair, the village court serves usefully to certain ends, while judicial outcomes can be pursued beyond it.
Reto’s subsequent fall, and Andrew’s ambivalence about returning to the chair while remaining integral to the court’s operations indicate that his status transcended the nominal position at the head of the village court, although the chairmanship had contributed to the development of his status. While he was hurt by Reto’s accusation and the immediate lack of support shown by his fellow magistrates, Andrew remained secure in the value that the community at large placed on his wisdom. Indeed he continued to be called `Chairman Andrew’ regardless of the chairmanship of Reto or his successor. Andrew had never flaunted his bigman status and did not need to reassert himself by attempting to reclaim the nominal chairmanship after Reto fell from grace. While the village court served as a vehicle for the pursuit of individual status its integration into the community, by virtue of its officers being community members, militated against its exclusivity as a road to prominence. Reto was undone not only by misappropriating payments, but by his behaviour and reputation within the community at large. The village court, the financial dysfunction of the NCDC and the consequent climate of frustration and suppressed distrust among court officers have provided him with his chance, but he had none of the other qualities he needed to pursue the kind of status Andrew had achieved through the village court.
Returning to Migdal’s state-in-society model, and his observation that the engagement between the state and social forces may be mutually empowering in some instances and a struggle for agency in others, often marked by mutually exclusive goals (Migdal 1994:24), I think my narrative demonstrates this well enough. Certainly village courts make the justice system accessible to grassroots communities, and simultaneously bring some (but certainly not all) unofficial dispute settlement procedures into the centralised system, as state planners intended. They offer an opportunity for status and the authoritative management of community problems, to the advantage of the grassroots communities they serve. Yet mutually exclusive goals are certainly evident in the contradiction between the state justice system’s imperative of justice for disputants, and magistrates’ attempts to weigh matters of individual guilt and punishment against wider communal issues. And further, where Andrew’s benevolent intent as a magistrate exemplifies the ideals of `grassroots justice’ embedded in the original model of the village court system, a very different goal is evident in Reto’s ruthless lack of concern with the same ideals in his own quest for status. At the same time, in such examples as the exploitation by Reto of the NCDC’s financial dysfunction, we have seen the effects within the community of its administrative connection with other elements of state. In these and other linkages and disjunctions evident in the foregoing narrative the village court serves as a handy example of Migdal’s basic argument about the lack of autonomy of the state from social forces, and the need to view states in their social contexts.
But importantly, we have also seen that the village court, an element of state, has been transformed in the dialectical relationship with community praxis, a matter which Migdal’s model does not appear to address. This transformation is partly due to the village court system’s social permeability, staffed as it is by members of the community it serves, which enables its political appropriation into the sociality of the community. In the context of a long history of creative appropriation of introduced institutions into Melanesian praxis since the late 19th century, this last observation is unremarkable, at least in social anthropological terms. Indeed, in observing the village court in relation to both state and local community praxis we simply serve a contemporary imperative for anthropology to contextualize its traditionally localised research in wider social, economic and political processes (preferably without sacrificing the central place of ethnography in our endeavour). Certainly we should not conceive of the state analytically as autonomous from social forces, and Migdal’s model, gathering in themes already explored by social scientists, has heuristic value, particularly in respect of Melanesian societies. But we should be careful to employ the model in such a way as to admit the dynamism and creativity of social life and the ongoing transformations both in the state in all its aspects and the local communities with which it is intimately engaged.
I am grateful to residents of Erima and nearby settlements for their tolerance and hospitality, and to Erima village court magistrates for their patient indulgence, over a number of years. I must also thank the Papua New Guinea Village Court Secretary, Peni Keris, who has continued to facilitate my research. The National Research Institute of PNG provided affiliation status for my most recent research visit, in 1999, which was funded by the University of Newcastle. I benefited from discussions with Keith Barber, Sinclair Dinnen and Bill Standish at various stages in the development of this paper, and thank Oceania referees for their comments. Any errors of fact are my own.
I. Standish refers to some Africanist literature along similar lines from the 1970s (1981:44-49), with which I am not familiar, but which encourages an inference that the thematic substance of Migdal’s model is not particularly new.
2. I use this term in the dialectical sense (the negation of the negation) elaborated in regard to the social subject by Marx in his critique of the Hegelian dialectic (Marx 1974:124-147).
3. The first elections for Papua New Guinea’s House of Assembly (which succeeded the Legislative Council) were held in 1964. Thirty-eight of the total 64 members were Papua New Guinean.
4. Read 28 September 1973, recorded in Hansard Vol III No.21, p2881. 5. Personal communication, Village Court Secretary, March 1999.
6. There is nowadays a general assumption in Papua New Guinea that corruption is a natural attribute of government and public service institutions, and bureaucratic inefficiency is also rife, as are heists and cash theft. The payout office of the NCDC has experienced robbery and theft several times in the past decade.
7. An example can be found in my account of a case in which an arguably innocent woman was found guilty of a sorcery-related offence to satisfy community expectations but was subsequently extricated from the punishment process by Andrew’s skilful handling of paperwork (Goddard 1996).
8. I presented an abridged version of this article in a seminar at the Research School of Pacific and Asian Studies, Australian National University. During discussion Anton Ploeg observed, in respect of the customary orientation which village courts were intended to have, that the behaviour of those involved in Erima village court actually exemplified Melanesian custom. I agree, but this customary behaviour is not of the same order as the imagined `local customs’ which late colonial planners were attempting to appropriate into juridical consideration.
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