Liberar escuelas

The Sirabu are aggressive, argumentative and litigious. People recognize incessant small scale disturbances to village life as necessary, if dangerous evils. Individual rights are both broadly defined and fiercely defended. Even the slightest infringement of these rights - a personal insult or the questioning of a person's motives or behaviour - can result in heated denial, counter-accusation and occasionally physical violence. Morover, a man who fails to defend his family, property, character or personal rights loses face;

passivity is synonymous with weakness. Consequently, for the 300 adults living in close quarters In Keu village, verbal arguments are daily events, and violence erupts at least once a week. No one is concerned to eliminate confrontations between kinsmen for that would represent a denial of human nature. Rather the phrase 'law and order', used by villagers, invokes the necessity to limit the scale of

confrontation and to repair the damage to the social order that disturbances of the peace cause. People seek to re-establish, even temporarily, a balance between right and wrong, to restore a balance between disputants, and to prevent quarrels from escalating into violent clashes which threaten to disrupt entire clans and

communities.

Men who successfully act to punish law breakers, or to restore by mediation or adjudication a balance between disputants, become respected and admired. Formerly, government officials - bosbois, luluais, and later councillors as well as komitis - assumed primary responsibility for maintaining law and order. They reported serious breaches of administration law to the kiap or Local Court and settled a number of disputes by hearing kots in village settings. The

establishment of village courts in 1978 separated the powers and duties formerly accruing to the same government official. As an institution responsible for law and order, village courts are a second arm of government, separate from, and often opposed to, the local government council. Village court officials, particularly magistrates, have become the most important government officials at the local level.

Their power and influence supersedes that of councillors, who have been stripped of the de facto right to punish law breakers. The

magistrate’s authority over legal matters is far greater than that of prior government officials. However, villagers closely scrutinize

courts officials' behaviour. In this chapter, I analyse the interface between law and politics, and demonstrate how the interaction between leaders and followers affects the limits of the court officials' authority and the nature of the law itself.

The selection of court officials

Eleven village courts operate within the Elimbari Council area. Each court has, on average, six magistrates, three peace officers, and one court clerk; these officials are drawn from various clans in the eria. Some clans, may have both a councillor and a magistrate, or a magistrate and peace officer, but no clan ever has two magistrates. Inevitably some clans do not have a magistrate. When this occurs peace officers, councillors and magistrates often encounter conflict as they attempt to assert their authority outside their own agnatic group. Within Keu community, the magistrates Martin and Dege (of Komodurumo and Kaupagam clans) often heard disputes at men's houses belonging to other clans (that is, Komogam and Subagam). Men of these clans usually accepted them, but would have preferred to have their own

magistrate. In order to avoid confrontation, Martin and Dege allowed a Komogam peace officer to hear a number of small disputes, and

frequently presided over men's house courts in tandem with this man or other local leaders. Where Martin or Dege's decisions were

questioned, the magistrates sent the dispute to the official village court. Magistrates and peace officers, therefore, hear a number of disputes in unofficial settings outside of the formal village court (cf. M. Strathern 1972b). I define 'disputes' and outline dispute processing shortly, but first, I examine the selection and powers of village court officials.

Procedures for selecting magistrates are as yet undefined and therefore a source of great tension and criticism. The Village Courts Act stipulates that the Provincial Supervising Magistrate,^" after

consultation with local government councils and with 'such other bodies as he considers appropriate', will submit to the High Commissioner, the names of village court magistrates to be appointed to specific courts (1973-74: section 6:7). A village court can have no fewer than three and no more than ten magistrates (section 7:2). The appointment of magistrates is 'reviewed' at the end of three years, and the

Supervising Magistrate may terminate appointments at any time for reasons of ’incompetence' or 'misconduct' (section 7:10). Magistrates and clerks are national government employees. Peace officers,

similarly appointed, are employees of the council, which determines their salary and conditions of service (section 62). In 1981

magistrates received K203 per year (almost double the allowance of councillors), and peace officers and clerks received slightly less.

When Elimbari Council first established courts in 1978,

councillors selected magistrates and peace officers, in theory, after they had obtained the consensus of their villagers. In practice, however, political patronage and the councillors' perception of the

powers that magistrates would have influenced appointments. Although the Village Courts Act allows councillors to hold the office of

O

magistrate, no Elimbari councillors chose this option (cf. Warren 1976: 3-4). Councillors told me they had assumed that magistrates would act as ward komltis and, wishing to rid themselves of the burden of dispute settlement, they selected former komitis or other leaders for this office.^ Of 46 first term magistrates, 23 had served as ward committee men, and four others had previously been councillors. In KTK ward Komodurumo men insisted that Martin should be appointed because, as komlti, he had long been responsible for

hearing Keukobu disputes. Kopon, the Kaupagam councillor, told me he agreed to this because Martin was Komodurumo's recognized leader and his authority was minimal within Kaupagam. The Komodurumo men's house at Onama, therefore, was ignored. Kopon also ignored Tabiagam's

demands for representation, and selected Mama as magistrate and Touri, a young educated man who had stood in the 1977 national elections, as court clerk. The choice of Mama was based on his prior reputation as luluaiy his position as the land mediator for Chuave, and Kopon's regard for him as a capable arbitrator of disputes. Other Duma councillors selected the remaining officials, appointing five magistrates from the largest clans and two peace officers from the

smaller clans. Because the DOIC and Local Court Magistrate had

previously determined the size of the court, Tabiagam failed to obtain any representation. Later two Ei tribe magistrates and one peace officer joined the Duma court, bringing the total number of officials to eleven.

Once established, it became clear that the court was a separate institution from the council, and that magistrates were responsible to the Local Court Magistrate, not to the councillors. Magistrates, trained in their powers and duties by the Local Court Magistrate, received special uniforms and badges of office. Court officials then chose sites for the village court, and, aided by close kinsmen, built special court houses based on the model of the local court, complete with flag poles, benches and tables (see Westermark 1978). Magistrates rapidly took responsibility for hearing all disputes arising in the village and, backed by the DOIC and Local Court Magistrate, excluded councillors from acting as mediators or adjudicators in disputes.

Each court also elected a chairman. In Duma, Martin quickly used his position as chairman to persuade the Local Court Magistrate to replace Mama and Touri. Using Touri’s inattendance at village court as an excuse, he selected a Tabiagam youth as clerk, thereby appeasing Tabiagam's claims for representation. Supported by several Mamgram men, Martin argued that Mama was too old to be a magistrate and that Kaupagam men preferred Dege, a close friend of Martin's, a former komiti and Kopon's rival. After pressure from other Kaupagam men, Kopon was forced to accept Dege's appointment.

By the end of the court's first terra, magistrates had established themselves as the most powerful leaders at the local level, and their relationships with councillors were often strained. Today, councillors feel that magistrates have usurped their power and have become the true government leaders. Competition between the council and courts is sometimes bitter. Thus several magistrates encouraged a boycott of tax patrols in 1979 because the council had not empowered magistrates to fine tax offenders. In retaliation, the council ignored all

magistrates' demands for funds to maintain or build new court houses and excluded magistrates from speaking at council meetings. Moreover, councillors often tried to discredit particular magistrates by

spreading rumours that they were stealing court fines or by criticizing them for biased decisions and other abuses of power. I return to the legitimacy of these accusations later. By 1980, despite criticisms of the court and occasional vandalism of court buildings by youths, there was intense competition for village court positions.

Although the Village Courts Act makes no strict provisions for the re-appointment of magistrates, it is clear that community

consultation and consensus should be sought. The DOIC at Chuave, after consultation with the Provincial Magistrate, agreed to villagers'

requests to conduct a general election by show of hands. The council, however, maintained its authority to appoint peace officers.

Word of the impending election spread rapidly causing great

confusion. People wishfully assumed that they would now elect a 'true' court and that each clan would select its own magistrate. The DOIC, after hearing this rumour, informed villagers that each court would elect the number of magistrates extant: no new positions would be created. Villagers then discussed the possibility of voting on an eria basis, suggesting that those seven magistrates who received the most votes should be elected. The DOIC also vetoed this proposal. Villagers then said they wished to vote on a community basis. Thus,

Subagam people living at Keu wanted to vote for a Keu resident rather than voting with the Subagams living at Onama because magistrates from other communities are rarely available to hear informal courts in the village. They preferred to nominate a Subagam leader who would compete against Dege or Martin for the position of Keu magistrate. The DOIC dismissed this proposal on the day of the election on the basis that it would make voting too difficult, and, I believe, because the idea was so unprecedented that the DOIC wanted to conform to prior ward-clan divisions.

Nine of 46 existing magistrates were unopposed in the election. One hundred and twenty-seven men contested the remaining 37 positions. Overall, 25 of 46 magistrates were re-elected. I observed the election of magistrates in Chuave census division. Of the 26 successful Chuave candidates, 73 per cent had some previous government experience: two were currently peace officers, four had previously been councillors, and 13 had been komitis. Four successful candidates were Lutheran songons. Only two men who were currently councillors stood for this election, however, and both were defeated. People distinguish sharply between councillors and magistrates as types of government leaders. Thus everyone agreed that councillors should not be elected as magistrates or vice versa. The magistrates' election preceded the

elections. Of these, three were successful in one election, but no candidate was elected to both village court and council.

Each contest was influenced by local conditions, in particular the division of clans between different communities and attempts by clans to elect not only their own kinsmen but also members of their local community. Because census books were not used to separate clans, heated arguments often arose as men attempted to vote several times for different candidates or as groups aligned themselves to improve their chances of electing a magistrate. KTK wa rd’s election

illustrates the type of competition that occurred.

Rumours about potential candidates spread several months prior to the election. The incumbents, Martin and Dege, made it clear that they would stand, but not campaign. People, they said, were aware of their reputations and could vote as they pleased. In fact, they made very few speeches or formal pledges. Conversations focussed on whether people should contest Martin's or Dege’s office and emphasized the necessity of a high turn-out to the election. As weeks passed, it became clear that Dege's position would be contested. Many men felt that he had become 'too big' and that he was too demanding and

assertive as a magistrate. Several days before the election there were rumours that Kopon, and as many as five others, would run as

candidates. The day before the vote three men publicly announced they would contest Dege's office: Kopon, the only competitor belonging to a different subclan from Dege's; Man, a lineage head and leader of Aragor men's house; and Lewas, a Lutheran wokman and younger member of Dege's

lineage who, like Kopon, belonged to Korowa men's house. Up until the day of the vote, there was confusion as to whether or not Martin and Dege would compete against each other and whether Tabiagam men would nominate. Martin, however, was considered unbeatable and many Kaupagam men

suggested that they would vote for Martin in preference to Dege.

When the DOIC appeared at the court house to hold the vote, leaders from all three clans approached him to ask about who could stand and whether the ward would vote as a whole. The DOIC informed them that as the ward currently had two magistrates, they would vote for two positions; thus Tabiagam would have to contest either Martin's or Dege's position, but not both, as clans had to vote as a unit. Two

Tabiagam raen then announced their candidacy, and a quick meeting of Tabiagam men decided that they would run against Dege. This choice was obvious given Martin's strong candidacy. Table 9 lists the results of the Tabiagam-Kaupagam vote.

Table 9: Tabiagam-Kaupagam village court election results

Candidate Approximate Age

Clan Details Votes

Dege 45 Kaupagam Incumbent/subclan leader 35

Lewas 30 Kaupagam Lutheran leader 4

Man 38 Kaupagam K o m i t i/lineage leader 1

Kopon 42 Kaupagam Councillor/subclan leader 0

Robert 26 Tabiagam (see text) 84

More 45 Tabiagam Subclan leader/former

k o m i t i

6

The winner, Robert, though having no claim to any hereditary status, nor previous government experience, was a young, literate man who had worked as a wage labourer for four years. He was also a member of the New Tribes mission, and Tabiagam men characterized him as an honest, hard working and 'educated' man. The election of younger men was by no means a universal feature of the Chuave elections, though

in Elimbari this trend was noted by the DOIC (Mogna CPR 1 1981; 7). A growing awareness that magistrates should be literate in order to read the village court manual is juxtaposed with the competing belief that older men are more experienced in matters concerning customary law. Only 15 per cent of first terra magistrates and 23 per cent of second term magistrates were literate.

As the smallest of KTK's clans, Tabiagam had never succeeded in electing a councillor. In this election, however, 76.7 per cent of Tabiagam adults voted compared with only 21.1 per cent of Kaupagam. Tabiagam's turn-out (or conversely, Dege's inability to mobilize

Kaupagam voters) therefore, largely account for Robert's success. While all Tabiagam men voted for their own candidates, four Kaupagam men cast their votes for Robert - another indication, however minor, that Dege's actions as magistrate had alienated his own kinsmen.

Voters explained to me that they disregarded Man and More because these men were both renowned for their quick tempers and aggressiveness; they were 'hot' men whose personalities were incompatible with the

magistrate's position. People argued that magistrates should be 'cold' men who 'scale' or balance both sides of an argument and who, unlike More or Man, rarely resort to physical violence.

In contrast, Kopon and Lewas were already established leaders, and this explains their poor showing. As councillor and church leader

respectively, these men were not entitled to undertake a second 'profession'; they could not 'double work'. One month later, Kopon was returned as councillor unopposed by any KTK leader. Thus people explicitly stated that, although Kopon had formerly settled disputes as councillor and while his decisions were 'true' and unbiased, he would become too dominant in village affairs if he were elected to both government offices. Thus, they insisted on the separation of roles.

Martin was returned unopposed after a massive turn-out by his kinsmen who were concerned that he might have to compete against Kaupagam or Tabiagam candidates. But, several months later,^ before

the swearing-in ceremony, the Senior Provincial Magistrate dismissed him on the grounds that the Local Court Magistrate insisted that Martin had twice failed to appear in Chuave for appeals against village court decisions. According to this Provincial Magistrate, the dismissal was also based on Martin's past record: as councillor in the early 1970s, he had been convicted of tax theft (G. Lapthorne: personal

communication 1981). The overturning of the villagers' consensus

caused great disenchantment with the Local and Provincial Magistrates - resentment fuelled by Martin's own complaints that the government was unfair. For villagers who have had almost 20 years experience with democratic elections, village court elections are the best method of obtaining consensus. Villagers, moreover, were aware of Martin's past record and did not see this as an obstacle to his proper fulfillment of the magistrate's office. They argued that other magistrates, too, had been jailed for various crimes before assuming office and that the

Local Court was meddling in village affairs.

At a meeting following this election, the council selected the peace officers. Typically, between five and ten men nominated for these positions in each court area. In Duma councillors decided on community rather than clan representation and re-appointed two peace officers from Gun and Onama. Kopon, however, successfully lobbied to replace the Keu peace officer, a Komogam, with a Subagam nominee. In doing so, he ignored three Kaupagam candidates. Although he denied any bias in this appointment, two of the Kaupagam men were highly respected. One, a former Papua New Guinea constable, was ideally suited in people's minds for the office. Men suggested that by

ensuring Kaupagam had no court representation, Kopon could subsequently