The snake bone case: law, custom, and justice in a Papua New Guinea village court.

The snake bone case: law, custom, and justice in a Papua New Guinea village court. INTRODUCTION The village court system in Papua New Guinea Papua New Guinea(păp`ə, –y is not autochthonous autochthonous/au��toch��tho��nous/ (aw-tok��thah-nus)1. originating in the same area in which it is found.2. denoting a tissue graft to a new site on the same individual. .It was introduced at the end of the colonial era through legislation,the Village Court Act of 1973. Two general themes constituted thediscursive context of its introduction: one of these was that the formaljustice system of the late colonial period Colonial Period may generally refer to any period in a country's history when it was subject to administration by a colonial power. Korea under Japanese rule Colonial America See alsoColonialism was not accessible tovillagers (Curtis and Greenwell 1971, Iramu 1975, Lynch 1965:32, Oram1975),[1] the other was a rhetoric that the colonial legal system hadbeen unjustly censorious cen��so��ri��ous?adj.1. Tending to censure; highly critical.2. Expressing censure.[Latin c of custom and customary law and that the lattershould be restored and preserved (Chalmers 1978:266ff, PNG (Portable Network Graphics) A bitmapped graphics file format endorsed by the World Wide Web Consortium. It is expected to eventually replace the GIF format, because there are lingering legal problems with GIFs. House ofAssembly 1972:1163-8). Consequently the Act stipulated that the villagecourts' primary function was to `ensure peace and harmony',endeavour to obtain `amicable settlement of disputes' and applycustom `as determined in accordance with....the Native Customs(Recognition) Act of 1963' (Village Court Act 1973).[2] Subsequent academic literature on the village courts can beroughly divided into two schools of thought. One has argued that despitethe intention that the village courts should be informal and `adjourn adjournv. the final closing of a meeting, such as a convention, a meeting of the board of directors, or any official gathering. It should not be confused with a recess, meaning the meeting will break and then continue at a later time. (See: recess, session) from time to time and place to place' (Village Court Act 1973) theyhave drifted toward legalism le��gal��ism?n.1. Strict, literal adherence to the law or to a particular code, as of religion or morality.2. A legal word, expression, or rule. , taking on the trappings and procedure offormal courtrooms. This view, referred to by Scaglion (1990:17) as legalcentralism cen��tral��ism?n.Concentration of power and authority in a central organization, as in a political system.central��ist n. and by Aleck (1992:113) as structural purism pur��ism?n.1. Strict observance of or insistence on traditional correctness, especially of language: "By purism is to be understood a needless and irritating insistence on purity or correctness of speech", was especiallyprevalent in the early 1980s, and regarded the creeping legalism as amanifestation of the extension of state control into village society (egFitzpatrick 1980, Paliwala 1982) and of the effort by village courtofficers to consolidate their authority locally by copying the procedureof local and district courts (Paliwala 1982). The alternative school ofthought draws attention to the creative use of the village court systemby local people, to variation in the operation of the courts from placeto place and to substantive flexibity in matters of evidence anddecision making (eg Scaglion 1990, Westermark 1986, Zorn 1990). Scaglionhas referred to this view, which has become more prevalent than theother in recent times, as the `interactive model of legalpluralism' (1990:18). Its proponents point to a complex integrationof introduced law and customary law, or as Zorn puts it, a mixing ofelements of `court' and `compromise' models (Zorn 1990). Zorngoes so far as to suggest that this blending of court and compromisemodels pursues the aims of dynamic customary law (op. cit.:306). The academic trend, then, is away from dichotomous di��chot��o��mous?adj.1. Divided or dividing into two parts or classifications.2. Characterized by dichotomy.di��chot models in whichlaw and Westernization west��ern��ize?tr.v. west��ern��ized, west��ern��iz��ing, west��ern��iz��esTo convert to the customs of Western civilization.west are opposed to custom and tradition and towardintegrative models which stress the dynamism of custom and prefer to seevillage courts as an alternative to both traditional dispute settlementand legal formalism This article is about Formalism in law. For other uses, see Formalism.Legal formalism is a positivist view in jurisprudence and the philosophy of law. While Benthamite positivism can be seen as appertaining to the legislature (Aleck 1992:114). My concern in this article is withsome complexities in the relationship between law and conceptions ofcustom which I do not think have been adequately addressed in theliterature and which arise in part from the enormous practical successof the village court system (by mid 1994 there were more than 1000village courts in operation throughout Papua New Guinea). In particularI want to question the notion of custom, not so much in itswell-critiqued post-colonial literary and propagandist usage[3] as inits use by participants in the village court system. The discussion isillustrated by a single case, selected as apt and thematicallyrepresentative, from around 200 cases observed and recorded during fivemonths of research in Port Moresby Port Moresby(môrz`bē), town (1990 pop. 193,242), capital of Papua New Guinea, on New Guinea island and on the Gulf of Papua. Rubber, gold, and copra are exported. Port Moresby was founded by Capt. John Moresby, who landed there in 1873. in 1994. VILLAGE COURT PRAXIS When the village court system was established the participation ofits magistrates, clerks and `peace officers' (executive assistantsto magistrates) was officially viewed as community service performed bypeople selected after deliberation among villagers. The job required noformal educational qualifications: rather, the personnel were expectedto be `persons whom the people respect and feel confident about, thatis, who know the customs of the area well, and can be relied upon tomake fair decisions...' (Village Court Secretariat 1975:1).Magistrates received a tiny remuneration of around $2 per week, whichwas less than a quarter of the official rural minimum wage of thetime[4], reflecting the anticipation that their duties would beoccasional and light. By the mid 1990s this retainer had risen only toaround K6 per week, little more than a quarter of the national minimumadult wage of K22.96 per week determined by the National Wage Board in1992[5]. While the low retainer may suggest a relatively light workload, village court officials in reality devote a great amount of timeand effort to their work. In addition to formal sittings which have become institutionalisedas weekly or twice-weekly rituals in most areas, mediations occupyvillage court magistrates at length. Papua New Guinea's kin-orderedsocieties are typified by complex relations of obligation andreciprocity between individuals and groups. The labyrinthine lab��y��rin��thineadj.Of, relating to, resembling, or constituting a labyrinth.labyrinthinepertaining to or emanating from a labyrinth. demands ofthese relations generate inevitable friction, expressed in chronic pettydisputes which are managed mostly by the achievement of compromise ofone sort or another. Village court magistrates act as mediators in suchcases both officially, following the Village Court Act'sstipulation that where possible they should attempt mediation beforeproceeding to more formal adjudication The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. , and unofficially, as theirmagisterial mag��is��te��ri��al?adj.1. a. Of, relating to, or characteristic of a master or teacher; authoritative: a magisterial account of the history of the English language.b. status invites community members to appeal to them asdispute settlers on a personal basis. This unofficial work is sometimesrewarded by gifts of food and (increasingly) beer, from mollifieddisputants, but not to an extent which could be reckoned a systematicalternative to an appropriate wage. The village court system hasextended into urban areas, and some village court magistrates of myacquaintance in Port Moresby work fulltime as dispute settlers in thesettlements where they live, and which the urban village courts mostlyserve. The peace officers, delivering summonses, intervening in physicalconfrontations (a responsibility generated mostly by communityinterpretation of their job-title) and ensuring court attendance byrecalcitrant disputants, also devote far more time to their duties thanwas anticipated when the village court system began. The high workloadalso burdens village court clerks: relatively unschooled, they wrestlewith paperwork which has increased in complexity with the developmentand refinement of the village court system's bureaucraticprocedures. Furthermore Papua New Guineans PoliticsDame Josephine Abaijah Sir Peter Barter Sir Julius Chan Ted Diro Sir John Guise Chris Haiveta Leo Hannett Joseph Kabui Sir John Kaputin Sir Albert Maori Kiki Sir Paulias Matane John Momis Jeffrey Nape in general, even in relatively`remote' areas, have become fairly well acquainted with theintroduced legal system and the notion of `unbiased' legal process.In its idealised representation the judicial concatenation of formality,jural The principles of natural and positive rights recognized by law.Jural pertains to the rights and obligations sanctioned and governed by positive law or that law which is enacted by proper authority. disinterest and methodical process is commonly seen by villagersas a desirable alternative to the necessary biases, compromises andbarely disguised manipulations involved in `traditional' disputemanagement. This notional dichotomy oversimplifies the workings ofintroduced law (see Aleck 1993), of course, and parallels a polaracademic model of the relationship between law and custom of whichsocial scientists are becoming increasingly critical (ibid).Nevertheless it is discursively manifest in community critique of thevillage court system, which tends to be regarded at village level(despite the intentions of the system's original promoters) as alegal alternative to an established and enduring variety of informaldispute settling procedures (Goddard 1992:90-93). A consequence of this attitude is that disputing villagers try tomanipulate village court decisions in their favour with tactics familiarto them from village moots and other arenas, while simultaneouslytreating village courts as if they were institutions of the same orderas local and district courts, even to the extent of challengingdecisions on occasion with appeals to law. The latter strategy wasparticularly prevalent in the busiest court I monitored in Port Moresbyin 1994 and the chairing magistrate had come to regard trips to thedistrict court `to see who wins...' as a regular part of his work(cf Goddard 1992:90). Under this pressure village court magistrates tendto rely very heavily on their officially issued operational handbooks,with lists of offences and penalties, and complaints of a lack ofsupport from district courts and police are not uncommon (Goddard1992:90 cf Gordon and Meggitt 1985:234-5). In response to thecombination of a heavy workload and community pressure for putativelegal rigour rig��our?n. Chiefly BritishVariant of rigor.rigouror US rigorNoun1. there is a growing demand from village court workers aroundthe country for a proper wage and more training in `the law'(Goddard ibid, cf Gordon and Meggitt 1985:230). To this end one recentstrategy has been a movement initiated by a small group of village courtofficers in the Port Moresby area in 1994 to form a national associationor union to press for `proper training', with the long term goal oftaking over the work of the formal local courts[6]. This initiative waspartly grounded in a logic that the majority of cases heard in villagecourts are of the same order as those heard in local courts. Practical exigencies, then, drive village courts toward formalism.But in tension with the increasing legalism is an awareness by villagecourt officials and village court users of the official directive thatthe courts are to follow custom, and village court magistratesconscientiously struggle to implement this.[7] Regardless of what somecommentators regard as their integrative practice, they carry in theirminds a dichotomous notion of law and custom. This is manifestdiscursively: in the village courts in Port Moresby that I observed longkastom sait... [Tok Pisin Tok Pis��in?n.A pidgin based on English and spoken in Papua New Guinea.[Pidgin English, from Englishtalk + Englishpidgin.] : on the custom side...] or kastom kahadekenai... [Hiri Motu: on the custom side...][8] were common phrases inlingua franca lingua franca(lĭng`gwə frăng`kə), an auxiliary language, generally of a hybrid and partially developed nature, that is employed over an extensive area by people speaking different and mutually unintelligible tongues in order to argument and discussion, relative to the `law' sideof a matter. The dichotomy is also manifest in magistrates'preoccupation with establishing and stating the nature of particularcustoms those which are limited to a city or district; as, the customsof London.See also: Custom involved in cases before the court, though this was invariably in��var��i��a��ble?adj.Not changing or subject to change; constant.in��vari��a��bil arhetoric rather than a substantive achievement in the courts I observedduring fieldwork. In urban village courts, serving ethnically mixedpopulations, magistrates regard the identification and pursuit of customas particularly vexing. In their interpretation the directive to followcustom imposes a need for them to become knowledgeable about a diversityof customs, and burdens them with the problem of whose customs to followin a dispute between people of differing ethnic backgrounds. This dialectical relationship between an effort to follow customand a simultaneous desire to become more legalistic le��gal��ism?n.1. Strict, literal adherence to the law or to a particular code, as of religion or morality.2. A legal word, expression, or rule. is, I think, thecentral problematique of the village court system in its day-to-dayoperation. While the factors generating the drive to legalism (outlinedabove) are comparatively discernable, the preoccupation with customrequires more analytic attention, and is the subsequent focus of thisarticle. `CUSTOM' I referred earlier, in regard to the inauguration of the villagecourt system, to a salient rhetoric about the censorious attitude ofcolonial authority toward custom. The attitude of colonial authoritiesneeds elaboration here for it determined subsequent, post-colonial,notions of custom particularly in legal discourse. In the early colonialperiod custom was defined operationally by the political intentions ofthe colonisers, rather than by anthropological or legal-historicalreflection. `Custom' was the range of indigenous social behaviourconsidered to be significantly at variance with Anglo-Australian (and,for a while in New Guinea New Guinea(gĭn`ē), island, c.342,000 sq mi (885,780 sq km), SW Pacific, N of Australia; the world's second largest island after Greenland. , German) norms. The British in Papua (thenBritish New Guinea) introduced the Native Board Regulations in 1889 toexpedite the spread of British control and `civilization'. Sorcery sorcery:see incantation; magic; spell; witchcraft. SorcerySorrow (See GRIEF.)sorcerer’s apprenticefinds a spell that makes objects do the cleanup work. [Fr. ,adultery, some mortuary practices, assault, theft, spreading of `lyingreports' and destruction of `valuable' trees were amongbehaviour outlawed in a raft of regulations specifically applied toindigenes. The Administration was particularly concerned to control theincidence of killings which it classified as murder, and AdministratorWilliam MacGregor Sir William MacGregor GCMG, CB, (20 October 1846 – 3 July 1919) was a Governor of Newfoundland and Governor of Queensland. Early lifeMacGregor was born in the parish of Towie, Aberdeenshire, Scotland. He was the eldest son of John Macgregor, a farm labourer. saw, in the motives for murder (sorcery, intertribal in��ter��tri��bal?adj.Existing or occurring between tribes.Adj. 1. intertribal - between or among tribes; "intertribal warfare" warfare, sexual offences, revenge for stealing), `the customs which hewould need to eradicate in order to reform native society' (Joyce1971:185). Ironically the `customs' which MacGregor interpreted asmotivating murder were in many cases transgressions in Melanesiansocieties, which regarded them as seriously as did the Administrationand imposed a wide range of punishments (e.g. Chinnery1925:31,133,Landtman 1927:170). For some of these outlawed practices,such as sorcery and non-christian mortuary practices, thecolonisers' inexact in��ex��act?adj.1. Not strictly accurate or precise; not exact: an inexact quotation; an inexact description of what had taken place.2. gloss `native custom' could sensibly onlymean that they were not experienced in contemporary Western societies,for they certainly were not (and still are not) peculiar to Papua NewGuinea. The Native Board Regulations, and the succeeding NativeRegulations introduced under an Ordinance in 1908 by the AustralianAdministration which inherited Papua from the British, served as anadministrative mechanism for separating out undesirable indigenoussocial behaviour from a general body of acceptable `custom'. When New Guinea became a mandated territory at the end of theFirst World War and Australia took over its administration from Germany,a Native Administration Ordinance was introduced consisting of a seriesof special regulations aimed at New Guineans, similar to the NativeRegulations of Papua. With the Ordinance the relatively liberal attitudeof the German Governor, Albert Hahl, toward `customs' (see, eg,Firth 1986:136-160, Hahl 1980:54, Wolfers 1975:71) was replaced by amore interventionist policy. Through the legal practice and discourse ofthe Australian Administration of the interwar period “Interbellum” redirects here. For other uses, see Interbellum (disambiguation).The interwar period (also interbellum) is understood within Western culture to be the period between the end of the First World War and the beginning of the Second World War in custom wasconceived ahistorically as a body of beliefs and practices of equivocallegal and moral validity requiring distinctions to be made between thosewhich could be tolerated and those which could not. TheAdministration's official attitude was expressed in the doctrinethat traditional customs were allowed to continue unless repugnant REPUGNANT. That which is contrary to something else; a repugnant condition is one contrary to the contract itself; as, if I grant you a house and lot in fee, upon condition that you shall not aliens, the condition is repugnant and void. Bac. Ab. Conditions, L. tothe `principles of humanity' -- an anthropologically meaninglessphrase best understood, in retrospect, by reference to conservativeAustralian mores of the time. In references to custom in the literatureof colonial officialdom there was no conclusive enumeration 1. (mathematics) enumeration - A bijection with the natural numbers; a counted set.Compare well-ordered.2. (programming) enumeration - enumerated type. of what wereconsidered to be `native customs' nor was there anything whichcould be considered an adequate lexical definition of `custom'.Occasionally, though, an undesirable custom would be referred to byname. One of these was `sorcery', a major concern for thecolonisers in the early part of this century, and a handy example inthis discussion, for sorcery was alleged in the village court casedescribed below. Sorcery was forbidden under the Native Regulations, andits alleged practitioners were given a six-month gaol The old English word for jail. GAOL. A prison or building designated by law or used by the sheriff, for the confinement or detention of those, whose persons are judicially ordered to be kept in custody. sentence if theywere found guilty. The Administration used the term `sorcery' veryloosely, to cover a wide range of real or imagined types of personalviolence practised by Papua New Guineans not involving immediatephysical attack. Words like `witchcraft' and `magic', usedinterchangeably, were subsumed under the rubric RUBRIC, civil law. The title or inscription of any law or statute, because the copyists formerly drew and painted the title of laws and statutes rubro colore, in red letters. Ayl. Pand. B. 1, t. 8; Diet. do Juris. h.t. of `sorcery'without the caution or qualification occasionally expressed in academicliterature (eg Evans-Pritchard 1976, Stephen 1989:215-217, 236n). TheAdministrator Hubert Murray Sir John Hubert Plunkett Murray, (29 December 1861 – 27 February 1940) was Lieutenant-Governor of Papua from 1908 until his death at Samarai. Early lifeMurray was born in Sydney, the son of Sir Terence Aubrey Murray (1810-73), and was educated at Sydney Grammar regarded Papuans as living in `constantterror of witchcraft' (Murray 1925:67), and a Resident Magistrate A Resident Magistrate is a title for Magistrates used in certain parts of the world, that were, or are, governed by the British. Sometimes abbreviated as RM, it refers to suitably qualified personnel -notably well versed in the law- who are brought into an area from of the period substantiated his own later reminiscences about theproblem of sorcery by citing a comment by Murray that the elimination ofsorcery beliefs would minimise serious crime in the territory (Griffinn.d.:214). Sorcery continues to be outlawed in Independent Papua New Guineaunder the Sorcery Act, in which it is defined enumeratively as including`witchcraft, magic, enchantment, puri puri, mura mura dikana, vada, meamea, sanguma or malira, whether or not connected with or related to thesupernatural.' (Independent State of PNG Sorcery Act:6). While thismay appear superficially to be an exhaustive stipulation of acts ofsorcery, it is better understood as a partial catalogue of a greaterclass of malevolence. In addition to the vagueness of the English terms,the lingua franca phrases cover a wide range of practices. For instance,mura mura dikana refers to poisoning (Hiri Motu: mura mura = a strongdrink or drug, dikana = bad); sanguma (Tok Pisin, absorbed from Sepikregion) refers to a type of attack where victims are set upon, renderedunconscious, physiologically interfered with, restored to consciousness,and sent on their way with no memory of the event, to suffer later; vadaand mea mea (Hiri Motu) refer to illness or death inflicted at adistance using personal items secretly obtained from the victim. It canbe seen, then, that the transition from colonial to post-colonialrepresentation has preserved the ambiguity of the official definition ofsorcery. The modern use of the term `sorcery' exemplifies theuncritical perpetuation of imprecise colonial concepts of indigenouspractices generally glossed as custom. In a reformist atmospherefollowing the Second World War the colonial administration began torecognise the inadequacy of its conception of custom, but was unable tofind a remedy. A report by Derham, who was appointed to review theadministration of justice in 1960, recommended that custom be taken intoaccount to a greater degree in courts, while conceding that custom wasnot a systematic equivalent of European law and would be difficult torationalise for judicial purposes (Derham 1960:35-36).[9] The simplistic sim��plism?n.The tendency to oversimplify an issue or a problem by ignoring complexities or complications.[French simplisme, from simple, simple, from Old French; see simple ahistorical a��his��tor��i��cal?adj.Unconcerned with or unrelated to history, historical development, or tradition: "All of this is totally ahistorical. notion that indigenous customs were immutable IMMUTABLE. What cannot be removed, what is unchangeable. The laws of God being perfect, are immutable, but no human law can be so considered. and legallyand ethically questionable was superceded in subsequent debate in thecolonial bureacracy (see Fenbury 1978:124-5) but no progress was madetoward the judicial rationalisation of custom. Unsurprisingly, in post-colonial Papua New Guinea references tocustom in legal discourse are still not grounded in a sound genericdefinition. Section 4 of the colonial Native Customs (Recognition) Actof 1963 provided a tautologous Tau`tol´o`gousa. 1. Repeating the same thing in different words; tautological. stipulation that `custom' meant the`custom or usage of the aboriginal inhabitants of the territory ...regardless of whether or not that custom or usage has obtained from timeimmemorial'. At Independence this definition was enshrined in PapuaNew Guinea's Constitution (schedule 1.2) with the word`territory' replaced by `country', and remains the touchstonefor jurisprudential discussion of custom in the country (eg. Ottley1992, Jessep and Lulaki 1994:79 and passim PASSIM - A simulation language based on Pascal.["PASSIM: A Discrete-Event Simulation Package for Pascal", D.H Uyeno et al, Simulation 35(6):183-190 (Dec 1980)]. , PNG Law Reports 1992:174).The relevance of the ambiguity in notions of custom to the considerationof praxis in village courts is demonstrated in the village court case towhich I will now turn. It was heard in Erima village court, Port Moresbyin 1994, when I monitored proceedings in three village courts indifferent parts of the National Capital District. THE SNAKE BONE CASE Erima village court serves an area of more than 18 squarekilometres covering four densely populated suburbs[10] and containingfive major settlement areas, all of which were established since the1960.[11] The populations of these settlements are a broad mix of ethnicgroupings, unlike those of the older settlements established in the1940s and 1950s.[12] While the settlements are neither as violent nor ascriminogenic crim��i��no��gen��ic? also crim��o��gen��icadj.Producing or tending to produce crime or criminality: "Alcohol is the most criminogenic substance in America"James B. Jacobs.as the popular media in Papua New Guinea sometimes suggest,inter-ethnic distrust and hostility generates a volatile socialenvironment (eg Chao 1989:98), and Erima is the busiest of the dozen anda half village courts in the Moresby area. The cases it hears areclassified by magistrates according to according toprep.1. As stated or indicated by; on the authority of: according to historians.2. In keeping with: according to instructions.3. a list of offences given in theHandbook for Village Court Officials (1976, hereinafter cited asHandbook)[13] which includes theft, assault, property damage, slander,insulting language, sorcery, disturbing the peace, drunkenness, carryingweapons, and failing to obey court directives. The list is given inplain language in the handbook, with the most complex category beingsorcery, which is subdivided into five offences covering `making'sorcery or pretending to make sorcery, threatening sorcery, procuringsorcery, owning `things that can be used to make sorcery' andpaying for sorcery (Handbook 1976:25-28). Whatever their classification,the majority of cases in Erima court arise from tensions generatedeither by interethnic marriage or by complications arising when amarried couple migrate from their home areas to the city. Marriages inPapua New Guinea continue to be predominantly linkages in interclaneconomic exchange and political alliance or truce. Consequently, ininterethnic unions and cases of urban migration by married couples thecomplex kin-ordered expectations and obligations which marriagesengender are especially problematic (see eg, Baxter 1973:96ff,Zimmer-Tamakoshi 1993 and cf Rosi and Zimmer-Tamakoshi 1993). The case discussed below was recommended to my attention inadvance by the chairing magistrate, `Chairman Andrew', who referredto it specifically as a matter of `custom' and as a `sorcerycase'. Complainants in disputes register their case with the courtby getting the court clerk A court clerk, in British English clerk to the court or in American English clerk of the court is an officer of the court whose responsibilities include maintaining the records of a court. Another duty is to swear in witnesses, jurors, and grand jurors. , usually, to write out their complaint inplain language on a form which acts as a summons to the defendant, thuscourt officials have a rough guide to the nature of the dispute orcomplaint before the case is heard. Also, as the village court workersare part of the settlement community and its gossip network, theysometimes know most of the details in advance of the hearing ofevidence. As the classification of offences in the court records has tofit the list given in the village court handbook, it is not uncommon forvillage court officials to hear disputes through almost to completionand then decide what the specific offence is, for the purposes of properdocumentation. When disputants face the magistrates in Erima village court it isusual for a peace officer to stand between the two parties, both as aformality Adv. 1. as a formality - in a set manner without serious attention; "they answered my letter pro forma"; "he kissed her cheek perfunctorily"perfunctorily, pro forma and to be ready to intervene in the event of a physical attackby one party on another. When this particular case was called, byannouncing the disputants' names, a man called Sobe whom I guessedto be in his early 30s took his position, as complainant A plaintiff; a person who commences a civil lawsuit against another, known as the defendant, in order to remedy an alleged wrong. An individual who files a written accusation with the police charging a suspect with the commission of a crime and providing facts to support the allegation , on one side ofthe peace officer, while a slightly younger looking woman called Mataand a much older man called Yaba stood together on the other side. The court clerk read out the complaint. Sobe accused his wife Mataand her older kinsman kins��man?n.1. A male relative.2. A man sharing the same racial, cultural, or national background as another.kinsmanNounpl -men Yaba of `sorcery': Mata was alleged to haveput snake bones in a cup of tea made for Sobe, with the connivance The furtive consent of one person to cooperate with another in the commission of an unlawful act or crime—such as an employer's agreement not to withhold taxes from the salary of an employee who wants to evade federal Income Tax. ofYaba. Sobe was from the Tari area of the Southern Highlands Province,his wife and her relative from the Eastern Highlands Eastern Highlands,c.2,400 mi (3,860 km) long, general name for the mountains and plateaus roughly paralleling the east and southeast coasts of Australia (including Tasmania) and forming the Continental Divide (see Great Dividing Range); rises to Mt. Province. Accordingto the Village Court Regulations at least three magistrates must sit onany case. Chairman Andrew (originally from Milne Bay Province Coordinates: Milne Bay is a province of Papua New Guinea. Its capital is Alotau. ) wasjoined on this case by the Deputy Chairman, Tagube, originally from theSouthern Highlands Province (and from the same general area as thecomplainant, although unrelated) and a magistrate originally from theEastern Highlands. The case was conducted in Tok Pisin. Chairman Andrewreferred to the alleged offence by the English term `Sorcery'. Thedisputants used the Tok Pisin term Posin pasin. While the term includesa transliteration of the English word `poison' (and of`fashion'), it does not always mean `poisoning' in the strictsense, and is commonly used as a Tok Pisin gloss for the indistinct in��dis��tinct?adj.1. Not clearly or sharply delineated: an indistinct pattern; indistinct shapes in the gloom.2. Faint; dim: indistinct stars.3. range of phenomena covered by the official term `sorcery',discussed above. Chairman Andrew asked Mata what she had to say. She admitted thecharge. She said she had wanted to be rid of Sobe and to get a `newman'. She had taken the bones from a dead snake she found, and hadgiven them to the older man Yaba to look after while she went to themarket. She had retrieved them from him when she returned, and had putthem in Sobe's tea. Chairman Andrew asked her where she had learnedto do this sorcery. She said settlement women from Simbu Province, andfrom Mt Hagen, in the Western Highlands Province, had told her about it.She said it was not a custom of her own area. Sobe, the complainant,told the court he had not drunk the tea because he suspected somethingwas in it. He had become suspicious when he saw Yaba pass something toMata just before she gave him the tea. When asked by the court for hisaccount, Yaba simply denied any knowledge of the whole business. At this point Chairman Andrew produced his copy of the villagecourt handbook and read aloud the sections on sorcery, pretendedsorcery, and procuring sorcery (I discovered part-way through fieldworkthat Chairman Andrew, an extremely conscientious worker, actually knewthe handbook's contents by heart: the ostentatious os��ten��ta��tious?adj.Characterized by or given to ostentation; pretentious. See Synonyms at showy.os reading of thehandbook was a strategy he used often to reinforce communitycomprehension of legal sanctions and to demonstrate that he wasscrupulous in judgement). He said that even if sorcery was not actuallydone, people's fear of it could cause them to die. White peopleknew about this phenomenon of death through fear, he added.[14] Inresponse to this comment, Sobe announced `I have evidence' (thetransliteration evidens is used both in Tok Pisin and in Hiri Motu invillage courts), and immediately produced a fist-sized newspaper bundle,which he placed on the magistrates' bench. Chairman Andrew teasedthe newspaper open with the court clerk's pen, exposing half adozen tiny bones. He commented that he knew about this kind of sorcery.The snake was a common harmless variety that slept a lot. The victim ofthe sorcery would take on the snake's characteristics ofharmlessness and dopiness, and become vulnerable and easy to get rid of.Chairman Andrew then asked Mata to name the women who had told her howto do the sorcery. She said she did not know their names, they were justsettlement women and were not in the vicinity of the court at themoment.[15] Chairman Andrew then adjourned the case for one week. Hesaid he wanted to establish whether Mata had acted alone or whetherothers had been involved. He told Mata to bring the other women to thenext court sitting. The following week, when the court clerk called Sobe, Mata andYaba, the three arranged themselves differently before the magistrates.Mata now stood with her husband Sobe on one side of the peace officer,and Yaba on the other. Before the case was called I had seen Mata arrivewith her husband, she did not appear to have brought any of theasked-for women with her. Chairman Andrew announced that this was acontinuation of the previous week's case, and asked the older manYaba what he had to say. Yaba once again denied any part in the affair.He was asked what his relationship to Mata was. He said he was a[classificatory] brother of her father. Mata was asked what she had tosay. She began a narrative ... her first husband had died, she had beenalone and destitute ... One of the magistrates, `Deputy' Tagube,interrupted and told her to stick to the case at hand. She said onlythat this was the first time she had done anything like this. DeputyTagube (a fiery man whose courtroom demeanour demeanouror US demeanorNounthe way a person behaves [Old French de- (intensive) + mener to lead]Noun 1. contrasted withAndrew's courtesy, patience and gentle humour -- deliberately, Isuspected) suddenly accused Yaba of putting Mata up to the sorcery. Hesaid he had heard that when Sobe discovered the bones Mata had cried andblamed Yaba. Obviously Tagube had been doing some detective work duringthe past week. Yaba once more denied any involvement. Mata then saidYaba had told her that her husband was no good and would mistreat her.Yaba wanted her to get rid of him and find another husband, from theEastern Highlands like themselves. Sobe told the court he and Mata had been together for two years:he had given her a home when she was destitute in Moresby after herfirst husband died. He then elaborated the story of the crime. He saidYaba the referred to him not by name, but as tambu a Tok Pisin term usedin many parts of Papua New Guinea to refer to affines, whose namescannot be uttered) had tried to persuade him to have a cup of tea whenhe was not thirsty. Yaba had been insistent, so Sobe had eventually saidyes, and had then seen Yaba slip something to Mata. When the tea wasmade Sobe was suspicious. He told his relatives he was not thirsty andoffered the tea in turn to several of his wife's kin who werepresent. They all refused it. Eventually he offered it to Mata, at whichpoint Yaba became extremely agitated ag��i��tate?v. ag��i��tat��ed, ag��i��tat��ing, ag��i��tatesv.tr.1. To cause to move with violence or sudden force.2. . Then he discovered the snake bonesand Mata confessed the plan. After hearing this second and more elaborate version of theattempted sorcery Chairman Andrew adjourned the case for a decision.This would normally have been a one week adjournment A putting off or postponing of proceedings; an ending or dismissal of further business by a court, legislature, or public official—either temporarily or permanently. , but Sobe wanted togo to his village for family reasons and said he had already bought aplane ticket, so Andrew adjourned the case for four weeks. He told Matathat in the meantime Adv. 1. in the meantime - during the intervening time; "meanwhile I will not think about the problem"; "meantime he was attentive to his other interests"; "in the meantime the police were notified"meantime, meanwhile she must keep away from her own lain (Tok Pisin:kin-group), stay with her husband, and go with him to his village ifnecessary. Four weeks later the case was called again. By this time it hadbeen written into the court record as a case of attempted sorcery. AgainMata and Sobe stood together. Yaba was asked what he had to say: hedenied everything. Mata confirmed Sobe's version of their marriage,telling the story, which the magistrate had interrupted previously, ofhow her first husband had died, she had been destitute and Sobe hadtaken her in and looked after her. She respected him and was happy withhim, but Yaba had told her that being a Tari (i.e. from Tari area) Sobewould cut her with a tomahawk tomahawk[from an Algonquian dialect of Virginia], hatchet generally used by Native North Americans as a hand weapon and as a missile. The earliest tomahawks were made of stone, with one edge or two edges sharpened (sometimes the stone was globe shaped). . Chairman Andrew said that whoever was to blame, there was no doubtthat a sorcery attempt had been made, and the court had to do somethingabout it. He said if it had been successful it would have led to hugetrouble between Taris and Eastern Highlanders and many people wouldlikely have died. Tagube abruptly confronted Yaba with the accusationthat he (Yaba) had repeatedly asked Sobe to have a cup of tea, which wassuspicious, and further that it had been Yaba who boiled the tea (noneof the disputants had said this -- more detective work by Tagube?). `Whywould I do this thing?' said Yaba, `They are like my ownchildren'. Then the story took another turn, as Mata disclosed to the courtthat there had been no snake bones in the tea at all, her feelings forher husband had made her unable to go through with the plan. So whenSobe had offered the cup around and everybody had declined it, she haddrunk the tea herself because she had known it was not `poisoned'.Sobe reiterated that he had seen Yaba pass something to Mata, hadsuspected the tea was poisoned and had offered it around to see what theresponse was. Finally Mata had confessed and given him the bones. Thiswas the third version of the incident and by now the magistratesconsidered that enough had been heard for them to consider a decision.They decided to announce their finding the following week, after dueconsideration. Chairman Andrew said they would have to think about thiscarefully, because the disclosure that Mata had not actually put thebones in the tea made the matter of whether it was attempted sorcery orpretended sorcery more complex. The following week, the magistrates gave their decision. This timeMata stood with her kinsman Yaba, as she had on her first appearancebefore the court, and the complainant Sobe stood alone. Chairman Andrewexplained that according to the law about sorcery people could bepunished for sorcery, pretended sorcery or attempts to procure sorcery.The maximum fine was K200 and payment of compensation up to K1000 couldbe ordered. He said the court had taken note that Sobe was not harmed inany way, but there had been intent to harm him, and despite Mata'sfeelings and her failure to actually put the bones in the tea, she hadbeen involved. He said the magistrates had decided that Mata and Yabawere guilty of a sorcery attempt, and Sobe should be paid compensation.He then instructed the court clerk to write down that `Yaba and hislain' (i.e. Yaba and his group, without specifying who constitutedthe group) were ordered to pay compensation of K200 to Sobe within twoweeks, and a court fine of K50 within one week. The following week the court fine had not been paid, and a courtorder was made out threatening imprisonment ImprisonmentSee also Isolation.Alcatraz Islandformer federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]Altmark, theGerman prison ship in World War II. [Br. Hist. if the fine was not paidbefore the next court sitting. The order was made out specificallyagainst Yaba, not Mata or Yaba's lain. COMMENTARY The case I have just described is procedurally typical of villagecourts. Some structural elements of legalism are evident, largelydetermined by the operational directives developed under the VillageCourt Act. Also evident are aspects of the intended informality of thesystem, for instance in Tagube's detective work, exploiting hiscommunity ties to find and use information that was not actuallypresented in evidence (something that would not be allowed in a districtcourt). The spatial movement of Mata from defendant to complainant andback (an allegory, perhaps, of her experience of conflicting loyaltiesto her husband and to her hostile kin-group) as the evidence revealedthe ambiguity of her role is another example, as is the humanemanipulation in the sentencing process, when Mata was publicly announcedto be guilty (as the agent of her kin-group) but not named in officialrecords. In this latter manoeuvre the magistrates capitulated tocommunity views of the politics of intergroup in��ter��group?adj.Being or occurring between two or more social groups: intergroup relations; intergroup violence.hostility in Papua NewGuinea by identifying the wife with her natal group regardless of herdilemma,[16] while using the paperwork of sentencing to spare her frompunishment. What I want to address in the context of this article'sgeneral theme, however, is Chairman Andrew's categorization of thiscase to me in advance as a matter of `custom', obviously linked inhis mind to its being about `sorcery'. There is no doubt thataccording to the Sorcery Act and the classification of offences in theVillage Court Regulations this was indeed a `sorcery' case,regardless of the caution social scientists might exercise inclassifying it. Its customary status, however, is more difficult toascertain. Mata denied that the use of snake bones in this way was acustom of her area, and in her initial attempt to shift blame away fromYaba she suggested she had learned about it from women belonging to twoother highland provinces (this covers a large and socially diverse areaof the highlands and Mata's claim can be regarded as deliberatelyvague). Chairman Andrew claimed knowledge of this form of sorcery, as ifit were not uncommon. I spoke about the case to an ethnically diverserange of Papua New Guinean colleagues at the University of Papua NewGuinea The University of Papua New Guinea (UPNG) was established by ordinance of the Australian administration in 1965. This followed the Currie Commission which had enquired into higher education in Papua New Guinea. The University of Papua New Guinea Act No. , where I worked at the time. Nobody claimed the snake bonetechnique as a custom of their area. at the same time, nobody had anydifficulty seeing its rationale, and neither had I during the case. Itis, after all, based on a very simple analogy. My colleagues found themalevolent use of snake bones unremarkable. Among highlanders in general(and particularly among males) fear of poisoning by enemies via food ordrink is common, and people are open to suggestion about the actualsubstance of the poison itself. Interestingly, during the latter part ofthe case when Yaba's culpability culpability(See: culpable) was obvious no-one asked him wherehe had learnt about snake bone sorcery, whether it was a local custom,or something he had heard about from people of a different area, orwhether it was his own idea. The snake bone case falls under the general legal category of`sorcery', which once rendered it `customary' in terms of thedesignation of sorcery as native custom by early colonialadministrations. As we have seen, though, sorcery has always beenillegal, while `custom' has become idealised as acceptablepractice, with some qualifications. In the colonial era thequalification was that it must not be repugnant to the principles ofhumanity, and in the post-colonial era the Customs Recognition Act(1976) stipulates that custom should not be recognised if it wouldresult in `injustice'. As post-colonial customary notions ofjustice are sometimes at odds with those of the State legal system (seeJessep 1991, Senge et al 1992) the post-colonial qualification amountsin practice to custom being recognised in courts as long as it is notagainst the law or the principles enshrined in the Constitution. Thiscreates an irony in the snake bone case. We may indeed observe thatwhile there was talk of kastom, it was not made clear in proceedingswhose custom snake bone sorcery was, and beyond a casual declaration ofacquaintance by one magistrate it was not established whether use ofsnake bones in poisoning was a custom at all. This becomes a cavil CAVIL. Sophism, subtlety. Cavilis a captious argument, by which a conclusion evidently false, is drawn from a principle evidently true: Ea est natura cavillationis ut ab evidenter veris, per brevissimas mutationes disputatio, ad ea quce evidentur falsa sunt perducatur. Dig. ,however, since the specific customary status of the incident is legallyirrelevant. Sorcery, broadly defined to encompass instances of bodilyharm or attempted bodily harm of varying severity up to murder withoutimmediate physical attack (see above), is simply against the law. When asocial practice is legally regarded as an illegal custom, the questionof how it should be dealt with in a village court according to custombecomes something of a paradox. In this case, as far as punishment wasconcerned, the magistrates followed the law, imposing a compensationpayment and a fine in accordance with the penalties listed in thevillage court handbook, and issuing an order threatening imprisonmentwhen the fine was not paid. Contrary to Chairman Andrew's representation of the snakebone case to me as custom by the singular virtue of its being aboutsorcery, I regard the salient customary aspect of this case as a broaderand less exotic phenomenon, and present in many other urban villagecourt cases I have seen. It is manifest not in the offence itself but inthe interethnic tension generated by the marriage in the first place,which the court could not really deal with, considering that the coupleseemed to be staying together. and which would likely continue. ChairmanAndrew identified the underlying problem obliquely in his remark thathad the sorcery attempt been successful it would have led to intergroupviolence. During fieldwork I saw patterns of court appearances byindividuals which were implicitly recognised by magistrates and thedisputants themselves as manifestations of simmering intergroup tensionsperpetuated through marriage links. In the village courts they couldonly be dealt with according to the form in which they appeared -- anassault, an accusation of theft, of non-repayment of a debt, an insult,and so on. It was likely that the snake bone case would prove with thepassage of time to be just one of a continuing series of cases involvingdisputes of one sort or another between members of Sobe's group andYaba's group, unhappy with a marriage which frustrated corporatepreferences about alliance and exchange. Zorn has suggested that the customary process of disputesettlement, might better be termed `dispute management', sincechronic underlying problems are held at bay (but not solved) throughdealing with particular manifestations from time to time (Zorn1992:29-30). While aspects of the snake bone case resonate with thatobservation it should be noted that the legal processes of western,courts are not necessarily contrary to Zorn's typification ofcustomary processes. Individual cases, dealt with as they arise (thoughoften, in sentencing after a conviction, in the light of pastconvictions), are frequently known by judges or magistrates andprobation officers to be linked by underlying socioeconomic factors andcommunity tensions beyond the control of the court. What I witnessed inthe snake bone case in Erima village court was in essence what I wouldhave witnessed if the case had been heard in a local or district court,an attempt to establish whether a crime had been committed, to determinethe guilt or innocence of the accused and to decide on a suitablepunishment. Certainly, there were procedural elements which deviatedfrom an ideal of formal legal procedure, and there was discernablemanipulation and strategy employed by the magistrates to achieve apublic recognition of Yaba's culpability and to reduce the burdenof guilt on Mata, the immediate victim of the affair. But this, whilecommonsense and maybe creative, is hardly customary in the senseintended by the Village Court legislation, or by the rhetoric whichpreceded the establishment of the village court system. CONCLUSION The observation that village court magistrates have awell-developed sense of a need to follow custom and define some cases asmatters of custom when in practice they apply legal principles, albeitwith some procedural flexibility, casts equivocation on the operationalvalue of official directives that they `apply custom'. Further,official definition of custom and its constituents is inadequate as faras precise or critical application in the village court system isconcerned. Village Court Officials are recruited from the communitiesthey serve, and chosen by the community partly on the understanding thatthey are not technically qualified jurists but have an organic knowledgeof the community's customs. But the disputes they deal with areactually categorised into a reduced range of the same offences thattechnically qualified and relatively well paid magistrates deal with inlocal and district courts. And disputants who do not comply with villagecourt directions find themselves in district courts (provided thevillage court clerk is able to do the paperwork correctly: see Goddard1992:90. Village court officers' complaints about their work focusoverwhelmingly on their lack of expertise in law, a perceived lack ofsupport from district court officials and their own difficulties withthe paperwork. These preoccupations, and the movement to press forbetter pay and conditions, suggest that the demands of their work areshifting them inexorably toward legalism and formal status. There is a contradiction, therefore, between the conditionedunderstanding of village court officers that they are to apply custom,and their legally and socially determined practice. This is not to denythe customary issues which underlie many of the cases they deal with,but which are beyond the legal and defacto scope of their activities.Village courts share that particular relationship to custom with everyother kind of court in Papua New Guinea's formal legal system,which precludes it from being considered analytically in terms of thelegislative distinction between the aims of village courts and those ofother official courts. It seems to me that the notion of custom, in thecontext of the operation of the village court system and considering theheavy workload and low pay of its officers, is ideological rather than agenuine constituent of village court praxis. That is to say, theideology that village court officers (especially magistrates) areorganic specialists in matters of custom and customary law, selected bythe community and hearing disputes `from time to time and place toplace, (Village Court Act 1973, op.cit) serves to obscure theirexploitation as poorly paid agents of the legal system at the lowestjurisdictional level. While I appreciate and largely endorse the thematic substance ofthe interactive academic model of the village court system, which paysmore attention to the content of village court proceedings than thestructural purist pur��ist?n.One who practices or urges strict correctness, especially in the use of words.pu��ristic adj. model, I cannot endorse the programmatic suggestionthat village courts magistrates, flexibility in admitting testimony andin decision making pursues the aims of customary law. I think thevillage courts will become an increasingly important element in theformal legal system and that they may maintain their proceduralinformality and flexibility, but I doubt that this will further thepractice of `customary law' in any real way. NOTES(1.) But cf Quinlivan 1975.[2.] The Village Courts Act 1973 was cosmetically amended with theVillage Courts (Amendment) Act 1996, and replaced by the Village CourtsAct 1989, without significant substantive changes. The Native Customs(Recognition) Act 1963 was post-colonially retitled the CustomsRecognition Act.[3.] For discussion of the critique of essentialist and authenticistviews of custom, see for example Jolly (1992), Keesing (1989), Keesingand Tonkinson (1982).(4.) Rural wages were less than half those paid in urban areas in themid 1970s.(5.) The new national minimum rate was set at the level of the ruralminimum wage at the time of determination (1992), and did away with theprevious dual system of urban/rural minimums. See McGavin (1993) fordiscussion.(6.) I was privately shown a draft of a proposal in August 1994.(7.) This has occasionally led to well-publicised controversy, when`local custom' has clashed with the law, especially in regard tothe treatment of women (see Jessep 1991, Senge et al 1992), anotherissue arising from the dichotomization di��chot��o��mize?v. di��chot��o��mized, di��chot��o��miz��ing, di��chot��o��miz��esv.tr.To separate into two parts or classifications.v.intr.To be or become divided into parts or branches; fork. of law and custom which,unfortunately, I do not have space to address here.(8.) Hiri Motu, formerly known as Police Motu, is a lingua francaderived from the Austronesian language spoken by the Motu people ofPapua. It consists mostly of words and phrases Words and Phrases?A multivolume set of law books published by West Group containing thousands of judicial definitions of words and phrases, arranged alphabetically, from 1658 to the present. adapted and modified fromthe original or `pure' Motu language, including several which couldbe translated into English as `custom'. The use of thetransliteration kastom, shared with Pidgin pidgin(pĭj`ən), a lingua franca that is not the mother tongue of anyone using it and that has a simplified grammar and a restricted, often polyglot vocabulary. , in the Hiri Motu discourseof village courts instead of more authentic terms reflects, I think,capitulation CAPITULATION, war. The treaty which determines the conditions under which a fortified place is abandoned to the commanding officer of the army which besieges it. 2. to the colonial dichotomisation of law and custom which Irefer to below.(9.) The contents of Derham's report were embargoed until 1973by Paul Hasluck, then Minister for External Territories, which in theinterim gave rise to incorrect popular speculation that they wereespecially controversial. For discussion of the report in itspolitical-historical context, see Sack )1984).(10.) Port Moresby is popularly referred to as having a population ofaround 200,000 people. High mobility within the Port Moresby area, amongpeople with extensive migrant kin networks who visit constantly, makesestimation of suburban populations unreliable, despite the apparentmeticulousness of regular census taking. I am not willing to guess howmany people are within the catchment area catchment areaor drainage basin,area drained by a stream or other body of water. The limits of a given catchment area are the heights of land—often called drainage divides, or watersheds—separating it from neighboring drainage of Erima village court.(11.) Despite the impression given by popular journalism, Papua NewGuinea's `settlements' are not all peopled by squatters. Theterm `settlement' covers a range including planned, andinfrastructurally well serviced, self-help housing areas, unplanned butlegal (leased blocks) settlements, settlement by permission oftraditional landowners and illegal pockets of squatters (see Norwood1984). Settlement, in this article is used to refer to the entire range,and excludes `high-covenant' and `low-covenant' housingestates and `urban villages' (`traditional villages, encompassedby, or on the edge of, the urban area).(12.) The earlier migrant settlements were established mostly bypeople from the Papuan Gulf area, traditional trading partners of theMotu of the area around what is now Port Moresby (see Hitchcock and Oram1967, Norwood 1984).(13.) Versions were issued in English, Tok Pisin and Hiri Motu.(14.) My regular presence was exploited in a number of ways byvillage court officials and disputants: this is one of them. As it wasknown that I was an academic I was often used spontaneously as an`expert' by magistrates either directly (... `I am right, asMichael can tell you...', ...isn't that so, Michael...',etc) or by indirect means such as the white people, reference givenhere, which always caused a communal glance at me.(15.) When the case began, Erima village court proceedings wereconducted in a building at the largest produce market in Port Moresby, anatural gathering place and a handy and teeming location at the centreof the court's geographical jurisdiction. A few weeks later, aftera wrangle about rent with the marketplace's `management', thecourt officials were evicted, and the court relocated itself in alean-to in the settlement known as Erima.(16.) This is not to suggest that the community did not recognisethat Yaba was the real individual culprit. 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