Care, Jennifer Corrin --- "Wisdom & Worthy Customs: Customary Law in the South Pacific" [2002] ALRCRefJl 7; (2002) 80 Australian Law Reform Commission Reform Journal 31

Reform Issue 80 Autumn 2002

This article appeared on pages 31 – 36 & 72 of the original journal.

Wisdom & worthy customs: customary law in the South Pacific

By Jennifer Corrin Care*

The geography of the small island countries of the South Pacific region ranges from the large, mountainous and mainly volcanic islands of Solomon Islands, Vanuatu, and Fiji Islands to the small atolls which make up Kiribati, Marshall Islands, Tokelau and Tuvalu.

On ethnic, cultural and linguistic grounds, these countries fall broadly into the sub-regions of Melanesia, Micronesia and Polynesia and are home to a multitude of customs and cultures. A simple illustration of this diversity is the number of languages spoken within the region. In Solomon Islands alone, about 65 vernacular languages and dialects exist.

In the 1960s, most South Pacific island countries emerged as sovereign states. New constitutions displayed a desire to return to traditional values in preambles containing declarations of pride, for example, in the ‘wisdom and worthy customs of [their] ancestors’ and pledges to ‘cherish and promote the different cultural traditions’.¹ As far as the law was concerned, these desires were given substance by constitutional recognition of customary law. However, introduced laws, in force prior to independence, were ‘saved’ as a ‘transitional’ measure, to fill the void until they were replaced by locally enacted laws. In general, this introduced law included legislation and common law in force in England up to a particular ‘cut-off’ date, and ‘colonial’ legislation.

While the constitutional status accorded to customary law acknowledged its importance for the indigenous population, its precise relationship with introduced laws was not specified. The doubts that surrounded the nature and operation of customary law provided a rationalisation for its avoidance by courts that were more comfortable applying introduced law.

A survey of the type of questions that have arisen in the South Pacific may be relevant to the debate on recognition of customary law in Australia. However, care must be taken to distinguish between the contexts of this debate. In particular, self-determination is not an issue in independent nations whereas, in Australia, it may be seen as an important part of any dialogue on customary law. Further, there is an obvious difference between countries where the vast majority of the population feels bound by customary law and the position in Australia where they do not. This article looks at some of the questions that have arisen regarding the operation of customary law in a selection of South Pacific island countries, and at some of the reasons why it has not obtained the prominence intended for it at independence.

What is customary law?

One of the biggest obstacles to the effective operation of customary law within the formal legal system is the absence of a universally accepted definition. Confusion has arisen between ‘custom’, which might be said to refer to all normal behaviour within a group, and ‘customary law’, which is usually taken to refer to rules governing that behaviour. However, in practice, this distinction is not always clear.²

The term customary law is not comprehensively defined in regional constitutions, and definitions that do exist are often unsatisfactory. For example, in Cook Islands, a definition dating back to the Cook Islands Act 1915 describes customary law as ‘the ancient customs and usages of the Natives of Cook Islands’. A literal interpretation of the definition would disqualify more recent customs and usage, and invites questions as to the meaning of ‘ancient’. Definitions introduced at independence are more palatable. The Constitution of Papua New Guinea defines custom to include ‘the customs and usages of the indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial’.

A related question is how widespread customary rules must be to warrant recognition. This question is particularly pertinent in Melanesia where customs differ from island to island and even from village to village. The definition in the Papua New Guinea Constitution recognises local or regional rules, however, most constitutions are silent on this point. Until local parliaments give some guidance, it is left to the courts to decide how widespread a custom must be before it is recognised.

There is also the question of whether customary law can be applicable in disputes between people from different customary groups or between indigenous and non-indigenous people. This point has become more pertinent as Pacific island societies have changed. In urban areas particularly, new cultural values have emerged to suit new social and economic relationships and the coexistence of indigenous and non-indigenous inhabitants.

The central debate has also been obscured by argument as to whether customary rules may properly be classified as law at all. Lawyers in the formal system, generally trained in Western law only, feel more comfortable with law that is written down. They have reacted with suspicion to the more elusive concept of customary law.

Where customary law has purportedly been applied there has been a tendency to distort it by moulding it to fit within the common law framework. Formal law and legal systems are usually taken as the benchmarks in the description and analysis of customary law. This approach is illustrated by the use of common law terms to describe customary concepts. Daly CJ issued the following caution against this in the High Court of Solomon Islands:

“... how can one express customary concepts in English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, that is the rules of common law and equity.”³

Prominent examples may be found in the use of the words ‘trustee’ and ‘beneficiary’ to describe the relationship between signatories to timber rights agreements and customary landowners,⁴ and the terms ‘primary and secondary rights’ to describe relationships with customary land in Solomon Islands.⁵

The inability to reach a satisfactory definition of customary law or customary concepts may suggest that it is so different in nature from introduced law as to be incompatible. In other words, it could be argued that attempts to integrate customary law into the formal system are misguided, as they do not provide for the fundamental differences between the two types of law.

How is customary law proved?

The difference in nature between customary law and introduced law has been highlighted by the debate as to how customary law is to be proved within the formal system. One view is that it must be proved as a matter of fact as provided, for example, in the Customs Recognition Act 2000 of Solomon Islands.⁶ The opposing view, adopted by statute in Papua New Guinea, Kiribati and Tuvalu is that it must be proved as a question of law.⁷ Proving customary law as a question of fact involves adducing evidence on point. Apart from being a costly exercise, this brings into play complicated rules of evidence, designed for the adversarial system rather than the resolution of customary matters. Proving law, on the other hand, does not require evidence to be adduced. It also puts customary law on the same level as other sources of formal law. However, customary law is mostly unwritten, and it may be difficult for the court to decide whether a particular custom does amount to law or not.

Should customary law be written down?

A related problem surrounds the recording of customary law. The common law system results in custom, once proved, being recorded as a precedent for future cases. Preference for written laws has also led to initiatives to incorporate customary law in legislation, as has been done in Fiji Islands. However, one of the perceived advantages of customary law is that it is flexible and changes in response to social circumstances. Arguably, once it is recorded as a precedent or statute, it ceases to be customary law at all and becomes part of the common law or statutory law. The position is compounded by the courts’ tendency to interpret legislation governing customary matters by reference to common law concepts, as in the ‘trustee’ example given above.

Should customary courts be established?

Difficulties in administering customary law within the formal system, such as those mentioned above, have led to the establishment by legislation of separate ‘customary’ courts, existing alongside Western-style courts. In particular, such courts have been established to deal with customary land and minor civil and criminal matters. However, while these courts may attempt to administer customary law, they are often not customary at all, as they are established on the adversarial model and are bound by inappropriate rules of evidence and procedure. Further, appeal often lies to a higher court within the formal structure, and even where this is restricted to questions of law, questions of fact are often dressed up so as to gain re-entry into a system ill-equipped to deal with questions which should be decided in accordance with customary law. To some extent, customary courts have reinforced the idea that introduced law is the appropriate law to be administered in the Western-style courts, whereas customary law should be confined to the ‘customary’ courts.

Outside the formal system, disputes in which customary law is the obvious choice are still normally dealt with by traditional means. In two notable instances, attempts have been made to integrate traditional dispute resolution and the formal court system. In Solomon Islands, the Local Courts (Amendment) Act 1985, introduced a prerequisite to the exercise of jurisdiction by Local Courts in customary land disputes. It became necessary for the applicant to show that:

• the dispute had first been referred to the chiefs;

• all traditional means of resolving the dispute had been exhausted; and

• the chiefs had made no decision wholly acceptable to both parties.

This landmark legislation seeks to have ownership of customary land decided in a customary way, rather than in a ‘customary’ court established on a Western model. However, there are difficulties with the procedure, not least the unwillingness of unsuccessful parties to abide by the chiefs’ decision. There have also be difficulties in ascertaining who are the ‘chiefs’ in some areas. Both the right of appeal to the High Court (via the Local Court and the Customary Land Appeal Court) on matters of law and the identity of chiefs have been used to divert questions of customary land ownership away from tribunals better able to deal with them.⁸ Sadly, the end result appears to be more litigation involving customary land cases than before the introduction of this Act.

The other example of the integration of traditional dispute resolution into the formal system is the village fono (councils) in Samoa. The Village Fono Act 1990 recognises the authority of the long existing village fono, ‘meeting in accordance with the custom of the village’, to impose fines or work orders for breaches of customary law and violations of council regulations, in accordance with custom and usage. However, the Act may have limited the power of the fono rather than enhanced it, as it sets out available penalties and thereby implicitly prohibited the fono from imposing other sanctions.

Is customary law superior to common law?

Assuming customary law can be identified and proved, there is a distinct lack of guidance as to where customary law fits into the formal system. As with most constitutional provisions, those recognising customary laws provide little operational detail. Regional constitutions do make it clear that the constitution is the supreme law. Statute enacted by local parliament is generally specified to be next in the hierarchy, although the position of introduced statute is not so clear. In some countries, such as Papua New Guinea and Solomon Islands, the intention appears to be that customary law is superior to common law, but, generally, their relationship is obscure. Parliaments have not provided guidance, even where mandated by the constitution to do so.⁹ Instead, the courts have been left to work it out on their own. Without clear guidance, courts that are uncomfortable with customary law are unlikely to promote it. In Allardyce Lumber Company Limited v Laore,¹⁰ Ward CJ of the High Court of Solomon Islands went so far as to suggest that the courts should not be dealing with customary law until parliament had provided for its proof and pleading as required by the Constitution.

Local circumstances

While particulars of the operation of customary law are vague, most regional constitutions specify that introduced law, both in the form of statutes and precedents, applies, ‘so far only as the circumstances ... [of the country] permit’ and ‘subject to such qualifications as local circumstances render necessary’.¹¹ If customary law is regarded as part and parcel of ‘local circumstances’, it should prevail over introduced statutes and common law, offering the opportunity for harmonisation with local culture. Unfortunately, South Pacific courts have largely ignored this requirement. There is, perhaps, an exception in customary land cases, particularly in countries where the Constitution specifically states that customary land disputes are to be determined in accordance with customary law.

A telling example of the application of common law without consideration of its relevance to local circumstances is Teitinnong v Ariong,¹² a case decided in Kiribati. There, the plaintiff was banished from the village because he had broken an agreement concerning the commercial sale of pandanus thatches. The High Court granted an injunction on the basis that the defendant had committed the tort of unlawful interference with the exercise of the plaintiff’s legal right to freedom of movement. The court ignored the fact that banishment was an accepted punishment in customary law, and said that:

“Any breach of any agreement or rules made by the old men can only be enforced in the constituted courts of the land. The defendants or the old men of the village cannot take the law into their own hands to enforce their rules.”

No consideration was given to whether a tort developed in England was applicable in the context of village life in Kiribati.

Has the objective test been distorted?

In numerous areas of common law an objective test is applied to determine whether conduct falls within a prescribed category or whether a particular intention has been demonstrated. It is often necessary to determine whether a person’s behaviour was reasonable. The attitude of many regional courts has been to assess reasonableness without reference to local context. A graphic example is R v Loumia and Others.¹³ The defendant admitted killing members of a rival customary group, but argued on the basis of provocation¹⁴ that this only amounted to manslaughter. At the time of the killing, the defendant had just seen one brother killed and another seriously wounded in the same fight. It was argued that any reasonable villager from the Kwaio area of Malaita province would have responded as the defendant did. Further, it was argued that the defendant came within s 204 of the Penal Code, which reduced the offence of murder to manslaughter if the offender ‘acted in the belief in good faith and on reasonable grounds, that he was under a legal duty to cause the death or do the act which he did’. As customary law was part of the law of Solomon Islands, it was argued that the words ‘legal duty’ in s 204 included a legal duty in custom. Evidence was adduced from a local chief that Kwaio custom dictated the killing of a person who was responsible for the death of a close relative. The Court of Appeal upheld the defendant’s conviction for murder on the basis that the customary duty to retaliate was inconsistent with s 4 of the Constitution, which protects the right to life. In fact, it was never argued that the defendant’s action was lawful. What the court was being urged to do was to take account of local circumstances both in the form of customary law, which recognised a duty to ‘payback’ and in the form of customary life style. The Kwaio area is one in which villagers live in accordance with customary principles, and community values and duties dominate. The defence of provocation should have been considered in the context of local circumstances and been applied as an extenuating factor. Had this been done, policy considerations might still have been accommodated by way of a deterrent sentence, while reducing the offence to manslaughter.

Traditional recognition of customary law

While customary law has not fulfilled the potential role opened up for it by constitutional recognition in island States of the South Pacific, its importance outside the formal system remains. In 1996, the Law Reform Commissioner of Solomon Islands explained the lack of support for law reform by the fact that the majority of the population ‘already had local customs to regulate their daily lives’. ‘Whiteman law’ was ‘not their business’.¹⁵ There is ample evidence that customary law is still the most relevant law for the indigenous population in most South Pacific countries, irrespective of whether or not it is formally recognised by the constitution. The force of customary law rests not in its recognition in written laws or by the courts, but on the fact that members of the customary group feel themselves bound by it.

However, the movement by many people away from village life, into an urban environment for the purposes of work, education, or family commitments, has led to the weakening of traditional customary authority. In urban areas, for example, criminal conduct is out of the hands of tribal leaders and is dealt with by the police and the formal courts. As this trend continues, it becomes increasingly important to address the role and operation of customary law in society as a whole.

Conclusion

It was not the intention of South Pacific constitutions to bind regional countries to English law forever. This is emphasised by preambles that stress the importance of indigenous values and by the ‘cut-off’ dates imposed to prevent continued application of transitional laws. However, there is little evidence of ‘localisation’ through national parliaments. Nor is there an identifiable move towards a regional jurisprudence. Any departure from English common law has normally been in favour of Australian and New Zealand precedents rather than in acknowledgement of the status of customary law.

Within the formal system, lawyers have little or no training in customary law. Expatriate and indigenous judges, trained overseas in the common law tradition, no doubt gain reassurance from handing down decisions that conform to those of their overseas peers. However, this prevents exploration of the boundaries of the applicability of common law and inhibits the freethinking required to establish a regional jurisprudence befitting the individual circumstances of independent nations.

Lawyers wishing to fulfil the constitutional mandate to promote customary law as a formal source of law are faced with the difficulty inherent in transferring fundamentally different concepts from one legal system into another. Uncertainty as to how this should be done has led to the relegation of customary law to a law of last resort. Questions of definition and provenance had been allowed to obscure the fact that customary law is the law for the majority of people in the community and that the written law is a foreign concept founded on foreign values. If customary law is to be promoted, the mode of application must be addressed. This is unlikely to happen until the common law is abandoned or, at least, restricted to cases where it is inarguably applicable to local circumstances.

Where customary law is dealt with in customary forums, compatibility of process is not an issue and expansion of traditional dispute resolution might reduce cultural conflict within the legal system. Barring access to the courts in relation to certain domestic or private matters or making the exhaustion of traditional processes a prerequisite to litigation might be ways of achieving this goal. Safeguards would have to be built in to ensure compliance with public policy and fundamental rights, assuming that such policy and rights have been developed and agreed upon in a local context.

Both common law and customary law have the advantage of flexibility. Common law may be moulded and adapted to accommodate local circumstances, just as customary law may be developed beyond the bounds of the subsistence economy in which it developed. Use of this shared quality of flexibility may offer an opportunity to meet the demands of the independent societies of the region. However, there is a need for extensive research to develop a rational and consistent approach to the application of customary law within the legal systems of the South Pacific region.

Customary law is increasingly appearing on the undergraduate and postgraduate curriculum in law schools, both within the region and in Australia and New Zealand. Armed with the ability to question the superiority of introduced law, the next generation of lawyers may be better equipped to grapple with the conflicts inherent in legal pluralism. Legal and general education may also quash the notion that accommodation of customary law, within the South Pacific and Australia, requires the rejection of human rights benchmarks and common law standards. What it does require is the acknowledgement and consideration of competing cultures, with the reservation of the right to reject elements of law or procedure (whether substantive or adjectival) from any source, if good grounds exist.

* Jennifer Corrin Care is a Senior Lecturer at the School of Law, University of Queensland. She is also a barrister and solicitor in Solomon Islands and Fiji Islands.

Endnotes

1. Preamble to the Constitution of Solomon Island s 1978.

2. The Constitution of Vanuatu uses both terms.

3. Lilo and Another v Ghomo [1980/81] SILR 229.

4. Allardyce Lumber Company Limited and Others v Attorney General and Others [1988/9] SILR 78 at 97. Compare Lilo and Another v Ghomo [1980/81] SILR 229 at 233-234; Kasa and Another v Biku and Another [2001] 1 LRC 133 at 137-142; Harry v Kalena Timber Co Ltd [2001] 3 LRC 24 at 31.

5. Kofana and Others v Aute’e, unreported, High Court, Solomon Islands, land case 001/1998, 10 September 1999.

6. This Act has not yet been brought into force and local sources suggest that it will not be.

7. Underlying Law Act 2000 (PNG), s 16(1); Laws of Kiribati Act 1989, s 5(3), sch 1, para 1; Laws of Tuvalu Act 1987, s 5(3), sch 1, para 1.

8. See, for example, Nelson Lauringi and Others v Lagwaeano Sawmilling and Logging Limited and Others, unreported, High Court, Solomon Islands, cc 131/97.

9. The Underlying Law Act 2000 (PNG) is an exception, but difficulties in interpretation could be said to create more problems than the Act solves. See further, Corrin Care, J and Zorn, J, ‘Legislating Pluralism: Statutory Developments in Melanesian Customary Law’, (accepted for publication in Journal of Legal Pluralism).

10. Unreported, High Court, Solomon Islands, cc 64/89, 10 August 1990.

11. New Hebrides Order 1973, as amended by the New Hebrides Order 1975.

12. [1986] KiHC 1; [1987] LRC (Const) 517. This decision predates the Kiribati Act 1989, which gives constitutional recognition to customary law within the formal system: Schedule 1, para 2.

13. [1984] SILR 51.

14. Provocation is now a statutory defence under the Penal Code Cap 26 (SI), but is based on the common law concept. See DPP v Camplin [1978] UKHL 2; [1978] AC 705.

15. The Law Reform Commission of Solomon Islands, Annual Report (1996) The Law Reform Commission, Honiara, p 10-11.