Legal Innovation in Papua New Guinea

巴布亚新几内亚于1975年独立时建立的乡村法院制度，为将不太正式的地方一级审判论坛纳入正式的法律结构提供了一个宝贵的试验案例。法院的目的是为农村社区提供利用法律制度的机会，并以适合当地情感的形式提供这种机会，例如，不太强调民事和刑事案件之间的区别。在成立以来的35年里，村法院经历了一些重要的发展和变革，并非所有这些都受到巴布亚新几内亚法律机构的欢迎。乡村法院已经出现在城市和城镇。他们已经开始审理他们管辖范围之外的案件，比如土地索赔和谋杀审判。他们非常重视这个国家对巫术和巫术的广泛关注，这在高等法院是不被法律承认的。当乡村法院打算不受律师或其他法律专家的干涉时，出现了没有正式资格的所谓“丛林律师”的服务。乡村法院实践中的这些和其他违规行为被该国的法律精英视为该系统出现问题的迹象，需要恢复法院最初职权范围内规定的正常功能。相反，该项目建议将乡村法院的发展视为一个系统的标志，该系统正在做它应该做的事情：满足当地决定的正义和裁决的愿望。它适应了这个极其多样化的国家不同地区的不同需要，这表明乡村法院的灵活性值得审查，因为它表明巴布亚新几内亚的法律制度并不总是由中央自上而下地设计司法，而是能够而且确实在基层有机地发展。为此，该项目将利用两名对巴布亚新几内亚法律制度运作有长期研究兴趣的人类学家的技能，在巴布亚新几内亚大学学生的协助下，他们将提供有关当地语言（该国拥有约800种语言）以及当地社会组织和文化价值观差异的知识。项目团队将对20世纪70年代以来的乡村法院实践进行首次广泛调查，着眼于准确记录法院自成立以来如何适应当地的需求和情感。这项研究的意义是双重的。首先，巴布亚新几内亚是一个长期努力摆脱“失败国家”的声誉的国家，其公民社会工具不起作用。该项目重新定义了乡村法院的创新，从表明法律制度的崩溃转变为表明法律制度正在以必要和高效的方式进行调整。第二，国际上对非正式或面向社区的司法执行和裁决系统的兴趣日益浓厚。从在世界各地发生冲突后涌现的和解委员会，到在英国刑事司法系统中采用恢复性司法替代方案，世界某一地区非正式法院的运作和发展对法院和其他形式的司法执行如何在其他地方发展具有深远的影响。巴布亚新几内亚从联合王国和其他英联邦国家继承了其法律制度的基本结构和原则。香港法院自独立以来的发展历程，为世界各地普通法司法管辖区的司法公正和公平如何适应当地的情况，提供了一个典范。

Papua New Guinea's system of Village Courts, initiated at the country's independence in 1975, provide a valuable test case in the integration of less formal, local-level adjudication forums within a formal legal structure. The courts were designed to provide rural communities with access to the legal system, and also to provide this access in a form that would suit local sensibilities, for instance by placing less emphasis on a distinction between civil and criminal cases.In the 35 years that have passed since their inauguration, Village Courts have undergone some important developments and transformations, not all of them welcomed by the legal establishment of Papua New Guinea. Village Courts have appeared in cities and towns. They have begun to hear cases outside of their jurisdiction, such as land claims and murder trials. They take very seriously the widespread concern in the country about witchcraft and sorcery, which cannot be legally recognised in the higher courts. The services of so-called 'bush lawyers' with no formal qualifications have arisen, when Village Courts were intended to be free from the interference of lawyers or other legal specialists. These and other irregularities in Village Court practice are seen by legal elites in the country as signs that the system is in trouble, and is in need of bringing back into line with the courts' proper functioning as delineated in their original remit.This project proposes instead to regard the developments in the Village Courts as signs of a system that is doing precisely what it was supposed to do: to fulfill locally-determined desires for justice and adjudication. That it has adapted to different needs in different parts of this extremely diverse country is an indication that the flexibility of the Village Courts is something to be examined as an indication that Papua New Guinea's legal system is one in which the delivery of justice is not always designed in a top-down fashion from the centre, but can and does develop organically at the grassroots level.In order to do this, the project will draw on the skills of two anthropologists with longstanding research interests in the operation of Papua New Guinea's legal system, with the assistance of students from the University of Papua New Guinea who will contribute knowledge of local languages (the country boasts some 800 languages) as well as local variations in social organisation and cultural values. The project team will conduct the first broad survey of Village Court practice since the 1970s, with an eye to documenting precisely how the courts have adapted to local needs and sensibilities since their inception.The significance of this research is twofold. Firstly, Papua New Guinea is a country that is chronically at pains to divest itself of the reputation of being a 'failed state' with non-functioning instruments of civil society. The project offers a re-framing of Village Court innovations from indicating a breakdown of the legal system to indicating that the legal system is adapting in necessary - and highly functional - ways. Secondly, there is a burgeoning interest internationally in informal or community-oriented systems of justice delivery and adjudication. From the reconciliation commissions that have sprung up in the wake of conflicts around the world, to the adoption of restorative justice alternatives in the British criminal justice system, the operation and development of informal courts in one part of the world has profound implications for how courts and other forms of justice delivery can develop elsewhere. Papua New Guinea has inherited the essential structure and tenets of its legal system from the United Kingdom and other Commonwealth states. The way its own courts have developed since independence offer a model for how the delivery of justice and equity can adapt to local sensibilities in common law jurisdictions throughout the world.