BY NENA HICKS
SCHOOL OF LAW;
UNIVERSITY OF THE SOUTH PACIFIC
Title: Sources of Law in the South Pacific; The Journal of Pacific Studies, 21.
Editor: Corrin Care, J.
Published by SSED (USP): Fiji (1997)
pp: 253 + vii
The common law and the legal framework and trappings accompanying its imposition on, or adoption by, peoples accustomed to systems of organisation - or organically developed norms - of vastly different complexions is a legacy of colonisation in most South Pacific jurisdictions. This context, involving a diversity of ideas and a fair degree of uncertainty, reflects, as Corrin Care describes it, the ‘complex legal pluralism’ (34) which forms a backdrop to the contributions in this volume. For practitioners and academics working in the region, the strength of this work is that it "sets the scene" by providing some perspectives on sources of law as well as giving a basis for future research and reform. Traditional ways of thinking about authority, about statehood and about identity are not, however, seriously challenged. This shortcoming is indicative of the wider sociological debate about legal pluralism and about the nature of law itself (Merry 1988; Roberts 1998).
A good introduction to the theory of law from colonial times is found in the concise and clearly written article by Vaai - which appears last in the volume. In sketching some of the dominant thinking prevalent during the period of colonisation, he underlines the relationship between the law and the state which is fundamental to Western legal jurisprudence. In the South Pacific context, however, this theoretical framework must confront tensions between collective rights and individual rights as well as grapple with the ongoing debates about the status and nature of "customary law", national law and international legal initiatives.
At a practical level, the ways in which colonialism impacted upon a particular nation has ramifications for the systems we see today. Duff’s research demonstrates that legal institutions, the substantive law and legal procedures form a complex relationship between an "alien" law and the local environment. With regard to the jury and assessor lists which he has analysed from the cession of Fiji to Britain in 1874 to the present day (with some gaps due to unavailability of data - a common problem for researchers of documents in the region) he demonstrates how selection on the basis of race and how perceptions of race have continued from colonisation to shape an important aspect of the current formal legal system.
In a stronger vein, Malifa claims that the development of law in Samoa has been hindered by an administration closely associated with colonial control and a failure to appreciate that ‘...the democratic foundation of the common law ...(was) something distinctly at variance with cultural law, customs and traditions that are inherently Samoan in their own right.’ (167) In response to this history of colonisation, Malifa calls for ‘a realistic regional approach’(185) to constitutional interpretation and, as well, he advocates the strengthening of universal rights, particularly pre-trial rights to counsel, throughout the South Pacific.
Obviously reform must come from within. Colonial controllers were concerned with colonial administration and little heeded the "source of law" problems left in their wake. Newly independent nations sometimes found that their legal systems contained complex but fundamental problems about the applicability of the common law, let alone conflicts between state and customary law. For example, practitioners need to know if there was a cut off date for the application of common law and equity and whether reforms in England or elsewhere have any application in the region. Paterson and Corrin Care deal specifically and thoroughly with these issues, which are by no means settled and which plague many judicial systems today.
But constitutional frameworks within the region often incorporate "custom" or "customary law" as well as the law which we would identify as western or state based law. This gives us at least two sources of law - written law and customary law. Notwithstanding the existence of such constitutional provisions, Vaai contends that customary law has been effectively and permanently marginalised. It is, after all, custom or customary law which is caught within the state apparatus. He is not alone in this assessment. Findlay reiterates that the State - representing "introduced law" and the community - representing "customary law" - are very different entities and the norms of each represent very different perspectives.
This is not to suggest that custom as a form of regulation is a spent force. Farran, amongst others, acknowledges that custom underpins much of life in the region and that without it many communities would be threatened. On the other hand, the fundamental rights encapsulated in many constitutions have a social engineering function which may well be out of touch with life in these communities. So on the one hand the courts are faced with the reality of custom and on the other hand they are obliged to protect the individual rights encapsulated in the written constitutions which appear to be the antithesis of custom.
An example of this conflict is seen in the use of a traditional sanction, namely banishment, in Samoa. Farran sees its categorisation as preventative, rather than punitive, by the Court of Appeal in Tagaloa v Inspector of Police and Fuataga v Inspector of Police  NZLR 883 as a judicial interpretation supportive of custom. It is, she argues, an approach indicative of an underlying policy of looking from the perspective of the collective or group within the society rather than from the point of view of the individual.
Such judicial approaches as described by Farran may be reflective of current power structures but more importantly as she points out, they provide an alternate to the "top down" imposition of an international law standard or "alien" law. This may allow for a more gradual change in the norms of the community and the state, without which enforcement of the law will invariably be difficult. A footnote in Findlay’s article demonstrates that if a banishment order is overruled by the State there may be insufficient mechanisms to protect persons defying custom and relying on constitutional rights. However, this situation is far from settled. A change in the formal law is not only predicted by Powles but is forcefully supported by Malifa who argues that human rights must be protected.
Despite the possibilities of custom law being supported by an active judiciary, Farran argues that custom may face the possibility of exclusion as a source of law. In other constitutional law cases analysed by her in Samoa, Vanuatu and Solomon Islands she shows that custom has given way to concepts of equality and to western concepts of property rights. This has dire consequences for communities which are, for example, seeking to move from subsistence to commercial farming and are faced with contractual concepts which simply do not recognise many customary rights. Without a flexible interpretation of constitutional rights and the determination to analyse custom in context before determining the issue of inconsistency, the law will fail to maintain any relevance for the people it seeks to protect.
Turning to family law, Brown discusses the welfare principle in custody cases and states that in Vanuatu and Solomon Islands there has been a ‘somewhat sporadic series of cases’(83) where the courts have had to grapple with the position of customary law, as a legal source, within the "formal" legal system. Brown demonstrates that the courts in Solomon Islands have placed the welfare principle above custom, even though custom and received law, he argues, should be on an equal footing. His work responds to the issues of conflicting sources raised by other authors, notably Paterson.
What then is the fate of customary law? Findlay describes a process whereby customary norms are brought within a foreign construct to their detriment. This might be at various stages of a customary process, as described by Powles in the case of land matters. In some cases, customary law may be "allowed" to operate but then is reviewed by the "introduced system" on grounds alien to those of customary law. Findlay also notes that the process of customary reconciliation in cases where crimes have been committed is ‘either activated or overseen as a feature of legal formalism’.(156)
Yet all is not lost for custom and its norms. Angelo documents that Tokelau has experienced difficulties determining the source of some of its introduced law, as in other jurisdictions. However, anything deemed incompatible with traditional life, such as the separation of powers doctrine, appears to have been ignored. Due to the limited impact of colonial law in Tokelau, its leaders now appear to be in the fortunate position of being able to look critically at the role of introduced legislation rather than being forced to respond to a well established and pervasive phenomenon.
Kabui’s work is also suggestive of a more interactive image than that of the strangling of one legal source by another. He describes the legal plurality operating in that country and notes that about ninety percent of land ‘is still held under the customary land tenure system’.(124) Its value is measured in terms of its significance as part of Solomon Islands society rather than in economic terms. The cases extracted and discussed illustrate the complexity of dealing with introduced concepts and customary law where disputes arise but he also shows how introduced concepts are not always allowed to dominate.
In order to better understand the legal landscape, the contributors to this edition generally support the concept of legal pluralism as indeed do others in the region (Luluaki 1997). The acceptance of this concept or approach provides a conceptual framework for understanding the complexities of South Pacific legal systems and it undoubtedly demands that indigenous customary norms, which remain essential to the lives of communities in the region, are recognised and respected (Cotterrell 1997). It is also this positioning, however, which gives us the preoccupations about defining "law" and "custom". Legal pluralism has its limitations. One such limitation, or even danger, is the optimism with which law can attach to customary norms, drawing them into the fold of the formal legal system and producing unexpected and unfortunate distortions (Rwezaura 1994). I do not wish to suggest that a regression to an academic "black letter" corner is desirable. Rather, I am encouraged by the professionalism and level of debate demonstrated in this volume and look forward to the continuing research it will no doubt inspire.
COTTERRELL, Roger (1997) ‘A Legal Concept of Community.’ Canadian Journal of Law and Society 12: 75-91.
LULUAKI, John Y. (1997) ‘Customary Marriage Laws in the Commonwealth: A Comparison Between Papua New Guinea and Anglophonic Africa.’ International Journal of Law, Policy and the Family 11: 1-35.
MERRY, Sally Engle (1988) ‘Legal Pluralism.’ Law and Society Review 22: 869-896.
ROBERTS, Simon (1998) ‘Against Legal Pluralism.’ Journal of Legal Pluralism 42: 95-106.
RWEZAURA, B. (1994) ‘The Concept of the Child’s Best Interests in the Changing Economic and Social Context of Sub-Sahara Africa.’ International Journal of Law, Policy and the Family 8: 82-116.