The History of State-Supported Community-Based Courts & Dr. Michael Goddard Macquarie University

Transcription

1 The History of State-Supported Community-Based Courts & The Effects of Historical Factors on Their Operations Dr. Michael Goddard Macquarie University

2 Examples of state-supported supported community-based courts: Various types of Local Courts and Village Courts in parts of Southern, Eastern Africa, Village Courts in Papua New Guinea, Island Courts in Vanuatu, Local Courts in Solomon Islands,.& etc. NB: does not include unofficial, home-grown community courts (e.g. unofficial village courts in Africa, Papua New Guinea)

3 Some common points about Southern African, Pacific Island societies in former (pre-colonial) times: *People in village societies had social obligations rather than individual rights *The group ( clan, tribe, etc.) was more important than the individual *In cases of wrongdoing, compensation was given, (including, for example, land, wealth items, wives, children) *The emphasis was on restoring social equilibrium ( bringing things back to normal, keeping the village together, etc.) not on Western-style style justice to individuals. *There were no written laws, or regulations.

4 State Law influences: (1) Early to middle Colonial period: imposition of Western law and court system. Villagers were now experiencing not only traditional dispute procedure but also the Western legal system (district/ magistrates/ patrol officers courts, police force, gaols). Colonial states often did not recognise traditional ways of dealing with disputes.

5 State Law influences: (2) Late colonial period: Attempts by colonial states to recognise customary law, and sometime to record it in a systematic way.

6 State Law influences: (3) End of colonial period, and early Independence period: Development of state-supported supported community-based courts. Reasons included: *State courts were often not accessible to villagers. *State court rules and procedure were often too complicated for villagers needs and problems. *State courts didn t want to deal with minor crimes from village level. *Some minor disputes involved a mixture of law and custom State courts didn t know custom.

7 State-supported courts General characteristics: *The courts magistrates or judges were selected from local communities, and had little, or no, training in law. They were supposed to have a good knowledge of local custom. *The courts had a limited jurisdiction (minor crimes, etc.) and could apply limited penalties (small fines, compensation, community service, sometime gaol sentences if guilty persons did not co-operate operate with court orders).

8 State-supported courts General characteristics (continued): *The courts were supposed to keep written records of cases *The courts were supposed to apply a mixture of simple law and local custom ( customary law ). *Disputants had a right of appeal to higher courts. *Police and other law/justice agencies were supposed to give support and reinforcement to the courts.

9 Planning, implementation and governance: *The courts were usually set up under state legislation: This meant they were subject to a number of regulations. *The courts were not set up across the board at the same time. Usually a handful were started as a trial and others added gradually over a period of time.

10 Planning, implementation and governance (continued): *There was often uncertainty over which state departments were responsible for different aspects of the courts operations (e.g. payment/allowances for court staff, equipment, oversight of their activities, hiring and firing, etc.). *Sometimes several different state departments were involved in the courts, creating confusion and overlaps in responsibilities, and occasionally gaps in resourcing and administration.

11 Court staff and judges/magistrates have mostly been dedicated, hardworking, and effective, and the courts have spread over time, easing the pressure on other State courts and preventing small disputes and issues in village society from developing into something bigger. But. They have had to deal with a variety of effects of the process of implementation and governance:

12 Resourcing the courts often became a problem, as communication between departments and disagreements over responsibilities developed (for example, transport, pay/allowances, supplies of stationery/etc.). Because of resourcing and financing problems, training of court staff was inconsistent and irregular. Support systems often were not strong, as police/higher court magistrates and judges were not well-informed about the community-based courts, their jurisdiction. This often led, for instance, to problems of enforcing court decisions.

13 While customary law was supposed to be applied in the courts, there was no clear definition of what it was, while the western law was more clearly defined for the court officials. If there was a clash between customary law and Western law, authorities would usually prefer the courts to follow Western law.

14 Interventions, reviews, appeals, etc, directed the courts towards law rather than custom, e.g. courts magistrates or judges frequently felt they needed more training in the law... In recent years themes such as human rights have been emphasized by development-aid organizations who are becoming involved in training programs and assisting with resourcing the courts.

15 Effects of local conditions: Villagers understanding *Local communities often did not have a clear understanding of the jurisdiction of the courts. They wanted them to have the powers of higher courts in some regards, but often expected them to use customary thinking, not Western legal thinking. *Where local people had easy access to the courts, they were usually popular and well used, even if their jurisdiction was not well understood.

16 Effects of local conditions: communications *Due to the uneven introduction of the courts and the lack of resourcing, some rural areas did not, and do not have courts, or people in remote areas cannot access a court, and court staff find it hard to contact local users because of a lack of transport or communication resources. *If there are no police or higher courts within reasonable distance, courts can find it difficult to enforce decisions, because they have no back-up. *If there are no higher courts within reasonable distance, villagers who might want to appeal against court decisions are unable to access an appeal court.

17 Attracting criticism...unavoidable? *The lack of resources combined with the court officials local knowledge led court officials to be creative in their efforts to do their job, especially in rural areas. *They tried to find compromises between the legal demands and the customary demands, but sometimes can t please everyone (state officers/legal commentators/ human rights commentators/individual disputants/local community.) *In places which suffered from a lack of resources (pay, supplies, etc.) court officials looked for other ways to fund their operations. These were informal arrangements and sometimes not strictly legal: leaving the courts open to claims that they were corrupt.

18 Some conclusions... State-supported community-based courts, to deal with minor crime and disputes in village-level level societies, were mostly well planned. They are generally sound in practice, and locally effective. Co-ordinating ordinating the provision of necessary resources seems to be a problem in several cases: this may be linked to the number of different State departments involved in running them when they were first introduced, and changes in forms and ways of governing over time. The attempt to achieve a blend of law and custom in the courts seems to be an ongoing source of criticism.